UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RICHARD CHARLES JOHNSON,
Petitioner-Appellant,

v.

MICHAEL MOORE, Director of the
                                                               No. 97-33
South Carolina Department of
Corrections; CHARLES M. CONDON,
Attorney General of the State of
South Carolina,
Respondents-Appellees.

RICHARD CHARLES JOHNSON,
Petitioner-Appellant,

v.

MICHAEL MOORE, Director of the
                                                               No. 97-7801
South Carolina Department of
Corrections; CHARLES M. CONDON,
Attorney General of the State of
South Carolina,
Respondents-Appellees.

Appeals from the United States District Court
for the District of South Carolina, at Charleston.
Henry M. Herlong, Jr., District Judge.
(CA-96-3814-2-20AJ, CA-97-1500-2-20AJ)

Argued: May 6, 1998

Decided: September 24, 1998

Before ERVIN, WILKINS, and WILLIAMS, Circuit Judges.

_________________________________________________________________
Affirmed by unpublished opinion. Judge Wilkins wrote the majority
opinion, in which Judge Williams joined. Judge Ervin wrote a concur-
ring and dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: John Henry Blume, III, CORNELL LAW SCHOOL, Ith-
aca, New York, for Appellant. William Edgar Salter, III, Senior
Assistant Attorney General, Columbia, South Carolina, for Appellees.
ON BRIEF: David P. Voisin, Columbia, South Carolina, for Appel-
lant. Charles M. Condon, Attorney General, John W. McIntosh, Dep-
uty Attorney General, Donald J. Zelenka, Assistant Deputy Attorney
General, Columbia, South Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

WILKINS, Circuit Judge:

Richard Charles Johnson filed these petitions for habeas corpus relief1
from his South Carolina murder convictions and sentences. See 28
U.S.C.A. § 2254 (West 1994 & Supp. 1998). 2 The district court
_________________________________________________________________
1 Johnson named Michael Moore, Director of the South Carolina
Department of Corrections, and Charles M. Condon, Attorney General of
South Carolina, as Respondents in his petitions. For ease of reference, we
refer to Respondents collectively as "the State" throughout this opinion.
2 Because Johnson's petitions for writs of habeas corpus were filed
after the April 24, 1996 enactment of the Antiterrorism and Effective
Death Penalty Act (AEDPA) of 1996, Pub. L. No. 104-132, 110 Stat.
1214, the amendments to 28 U.S.C.A. § 2254 effected by § 104 of the
AEDPA govern the resolution of this appeal. See Green v. French, 

, 868 (4th Cir. 1998); see also Lindh v. Murphy, 

,

                    2
denied the relief sought, holding that the majority of Johnson's claims
were procedurally defaulted and that the state court rulings that the
remainder of Johnson's allegations of error lacked merit were not
unreasonable. Johnson's request for a certificate of appealability is
granted because at least one judge on the panel concluded that John-
son "has made a substantial showing of the denial of a constitutional
right." 4th Cir. R. 22(a). However, for the reasons set forth below, we
affirm the decision of the district court denying Johnson's petition.

I.

In September 1985, C. Daniel Swansen was traveling south
through the Carolinas toward Florida. While in North Carolina, Swan-
sen met Johnson and permitted Johnson to accompany him on the
journey in Swansen's recreational vehicle (RV). The following day,
Swansen and Johnson met Curtis Harbert and Connie Hess at a rest
area on Interstate 95. Harbert and Hess joined Swansen and Johnson,
and the group continued south together in Swansen's RV. During the
evening, Johnson fatally shot Swansen, wrapped his body in a sheet,
tied it with stereo wire, and concealed it under a mattress in the rear
portion of the RV. After the murder, Johnson, Harbert, and Hess con-
tinued their journey in the RV with Johnson driving. Johnson, who
had been drinking, was driving erratically, and a motorist who
observed Johnson's reckless operation of the RV notified South Caro-
lina Trooper Bruce K. Smalls. The officer stopped the RV, and during
questioning, Trooper Smalls was shot six times and killed.

Johnson was charged in Jasper County, South Carolina with the
murder of Trooper Smalls; he was tried and convicted of this capital
_________________________________________________________________
2067-68 (1997) (holding that habeas petitions filed prior to the effective
date of the act are not governed by the Chapter 153 AEDPA amend-
ments). Although Johnson'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 is not
arguing that the provisions of § 107 (including the more stringent proce-
dural default provisions) of the AEDPA apply. See Howard v. Moore,

, 403 n.1 (4th Cir. 1997) (en banc), petition for cert. filed,
___ U.S.L.W. ___ (U.S. May 22, 1998) (No. 97-9263).

                    3
murder in February 1986 and was sentenced to death. However, John-
son's conviction and sentence in the Jasper County proceeding were
reversed on appeal. See State v. Johnson, 

(S.C. 1987).
Johnson was retried in Jasper County in March 1988. A jury again
found him guilty of the murder of Trooper Smalls and sentenced
Johnson to death. This conviction and sentence were affirmed on
direct appeal, and the Supreme Court denied certiorari on April 20,
1992. See State v. Johnson, 

, 550 (1991), cert. denied,

(1992).

In the meantime, in March 1986, Johnson pled guilty to the murder
of Swansen and to armed robbery in Clarendon County, South Caro-
lina; he received a sentence of life imprisonment plus 25 years as a
result of the Clarendon County convictions. He did not appeal these
convictions or sentence to the South Carolina Supreme Court.

Subsequently, Johnson filed separate petitions for postconviction
relief (PCR) in state court challenging the Clarendon and Jasper
County convictions. These petitions were consolidated for disposi-
tion, and an evidentiary hearing was conducted by the state PCR
court. Thereafter, the state PCR court denied relief on March 13,
1995, and the South Carolina Supreme Court denied certiorari on July
11, 1996.

On December 2, 1996, Johnson filed a § 2254 petition seeking fed-
eral habeas corpus review, attempting to obtain relief from both the
Jasper and Clarendon County convictions and sentences. The district
court concluded that this combined petition was improper and on May
9, 1997 ordered that the portion of Johnson's petition relating to the
Clarendon County convictions be dismissed without prejudice. On
May 15, 1997, Johnson filed a second habeas corpus petition attack-
ing the Clarendon County convictions along with a motion to consoli-
date the two petitions. The district court denied the motion to
consolidate, and the petitions were adjudicated separately.

The district court first concluded that the standards of review
adopted in the Antiterrorism and Effective Death Penalty Act
(AEDPA) of 1996 applied because Johnson's petitions were filed
after the effective date of the AEDPA. The district court then found
that the majority of Johnson's claims were procedurally defaulted

                    4
and, applying the AEDPA standards of review, determined that the
decisions of the state courts on the remaining issues were not unrea-
sonable. Thus, the district court entered orders denying relief on both
petitions, and Johnson now appeals those denials. The appeals were
consolidated by this court.

Johnson raises a number of issues on appeal. With respect to the
Jasper County conviction for the murder of Trooper Smalls, Johnson
argues that (1) the State violated his right to due process under Brady
v. Maryland, 

(1963), by failing to inform him prior to his
1988 retrial in Jasper County that Hess, who had testified in the first
trial that Johnson had killed Swansen and Trooper Smalls, had
recanted a portion of her testimony and had instead indicated that
Harbert was the murderer; (2) the State failed to disclose immunity
agreements with Harbert and Hess and to correct the false impression
created by Harbert's testimony that no such agreement existed; (3) the
State failed to reveal, or correct a false impression with respect to, the
full extent of Ronnie Dale Stevenson's prior record, involvement as
an informant with law enforcement, and unreliability; (4) Stevenson
acted as a State agent such that Johnson's Sixth Amendment rights
were violated when Stevenson questioned Johnson with respect to the
murder of Trooper Smalls; (5) the cumulative failure of the State to
disclose the exculpatory material deprived Johnson of a fair trial in
violation of the Sixth, Eighth, and Fourteenth Amendments; (6) John-
son was denied effective assistance of counsel at the guilt phase of his
trial; (7) the failure of the trial court to inquire into a possible conflict
of interest arising from defense counsel's prior representation of Ste-
venson violated Johnson's Sixth, Eighth, and Fourteenth Amendment
rights; (8) all of Johnson's claims arising out of the guilt phase of the
Jasper County proceedings are not barred as a result of his admission
of guilt at sentencing; (9) Johnson was denied effective assistance of
counsel in the sentencing phase of the Jasper County proceedings; and
(10) the State improperly relied on the "unconstitutionally" obtained
Clarendon County convictions in sentencing Johnson in Jasper
County. With respect to the Clarendon County convictions and sen-
tence, Johnson asserts that his guilty plea was involuntary because (1)
counsel failed to inform him that a statement he had given to law
enforcement officers concerning the events in Clarendon County was
inadmissible on the basis that it was obtained unconstitutionally and
(2) the State failed to disclose records in its possession indicating that

                      5
Swansen was mentally ill, unstable, and prone to acts of violence. We
first address those claims that the district court found to be procedur-
ally defaulted and then proceed to consider those that are properly
before us on the merits.

II.

Johnson maintains that the district court erred in concluding that all
of his claims relating to constitutional error in the guilt phase of his
Jasper County trial--those claims identified above as claims (1)
through (7)--were procedurally defaulted. Absent cause and preju-
dice or a miscarriage of justice, a federal habeas court may not review
constitutional claims when a state court has declined to consider their
merits on the basis of an adequate and independent state procedural
rule. See Harris v. Reed, 

, 262 (1989). Such a rule is ade-
quate if it is regularly or consistently applied by the state court, see
Johnson v. Mississippi, 

, 587 (1988), and is independent
if it does not "depend[ ] on a federal constitutional ruling," Ake v.
Oklahoma, 

, 75 (1985).

At the penalty phase of his trial, Johnson had an opportunity to
make a statement to the jury. He said:

          I haven't been before you during the guilt phase of this trial
          or until now because there was no defense for my actions,
          I realize that now.... I have no defense for anything or the
          tragedies that have occurred. All I have is a sorrow[for] the
          lives that I have ruined. I realize that there were many that
          I have ruined.

J.A. 1109. The state PCR court considered these statements to be an
admission of guilt. See J.A. 2850; see also 

(referring to this testimony as "the admission of guilt Johnson made").
And, because Johnson admitted guilt, the state PCR court concluded
that as a matter of South Carolina law, all issues Johnson raised per-
taining to the guilt phase of the trial were procedurally defaulted. See
J.A. 2850-51 (citing Whetsell v. State, 

(S.C. 1981),
and State v. Sroka, 

(S.C. 1976)).

                    6
A.

Johnson maintains that the determination of the state PCR court3
that his Jasper County guilt-phase arguments are procedurally
defaulted as a result of his sentencing statement does not constitute
an "adequate" state-law ground for decision. 4 A state rule is "ade-
quate" if it is "consistently or regularly applied." 

. Consistent or regular application of a state rule of procedural
default does not require that the state court show an "undeviating
adherence to such rule admitting of no exception." Wise v. Williams,

, 143 (4th Cir. 1992) (internal quotation marks omitted).
Rather, "despite some deviations, a general rule, that ha[s] been
applied in the vast majority of cases" must be considered to be consis-
tently applied. Plath v. Moore, 

, 602 (4th Cir. 1997)
(internal quotation marks omitted), cert. denied , 

(1998). In assessing whether a state has consistently applied a proce-
dural rule, we consider only those instances in which the state
advanced the procedural rule as a basis for a decision adverse to the
petitioner because we cannot say that a state court inconsistently
applied a procedural rule that was not presented for its consideration.
See Meadows v. Legursky, 

, 907 (4th Cir. 1990) (en
banc). Furthermore, we necessarily look only to the period prior to the
time the defendant violated the state procedural rule; decisions apply-
ing a state rule after that time are irrelevant in determining whether
_________________________________________________________________
3 Because the South Carolina Supreme Court denied certiorari, we look
to the decision of the state PCR court in determining whether Johnson
defaulted his claims. See Ylst v. Nunnemaker , 

, 805-06
(1991) (holding that an unexplained appellate state-court decision is pre-
sumed to be based on the last reasoned decision).
4 Johnson also contends that the state decisions relied upon by the state
PCR court, when properly viewed, indicate that as a matter of South Car-
olina law his statement admitting guilt is relevant to a determination of
whether any error committed during the guilt phase of his trial was harm-
less, not whether he waived review of the issues related to his guilt.
However, a federal habeas court does not review issues of state law. See
Barnes v. Thompson, 

, 974 n.2 (4th Cir. 1995). Rather, after
determining that a state court relied on an adequate and independent
state-law ground for decision, we "may only inquire into whether cause
and prejudice exist to excuse [a state procedural] default, not into
whether the state court properly applied its own law." 

was consistently applied at the critical time. See 

n.3.

Johnson maintains that under South Carolina law an admission of
guilt by the defendant is employed to evaluate whether an error com-
mitted by the trial court is harmless rather than to waive trial errors.
As such, Johnson contends, the rule on which the state habeas court
relied to determine that his claims were procedurally defaulted is not,
and cannot be, a rule of procedure that is consistently applied.

A close examination of the decisions to which he points in support
of his argument demonstrates that Johnson has failed to recognize that
under South Carolina law, it is appropriate to rely upon a defendant's
admission of guilt in applying a harmless error analysis to a trial
error, and it also is proper to hold that a defendant's admission of
guilt waives consideration of trial errors. In order to understand the
different contexts in which the South Carolina courts have relied upon
a defendant's admission of guilt, a careful examination of its opinions
is necessary.

The first two cases to which Johnson directs our attention do not
demonstrate that South Carolina courts have inconsistently applied
the rule that a defendant's admission of guilt waives consideration of
all trial issues for the simple reason that the rule had not yet been
enunciated when the cases were decided. The earliest relevant deci-
sion of the South Carolina courts is State v. Patterson, 

(S.C. 1974). In Patterson, when testifying in the trial of a co-
participant, the defendant admitted his guilt to the murder of which
he previously had been convicted. Considering on direct appeal Pat-
terson's argument that he was entitled to a new trial because the trial
court erred in refusing to instruct the jury on involuntary manslaugh-
ter, the South Carolina Supreme Court ruled that"[i]f there was error
in the court's refusal to submit involuntary manslaughter, which we
do not concede, appellant has waived the error by his subsequent
explicit testimony." 

court went on to explain:

          If it be said that the conflict between the original statement
          and appellant's subsequent testimony should be resolved by
          a jury, the ready answer is that on retrial no honest and
          rational jury could fail to convict the appellant of murder.

                     8
          For this reason, we decline to consider whether the court
          erred in refusing to submit the issue of involuntary man-
          slaughter to the jury. For like reason, we decline to consider
          the other grounds of appeal which, if sustained, could only
          result in the futility of another trial of a defendant who is
          inextricably tied to the death weapon, and who, since his
          conviction of murder, has freely and voluntarily declared his
          guilt in a most solemn fashion.

no authority in support of its decision that Patter-
son's admission of guilt rendered consideration of the remaining
issues raised unnecessary. The court, however, did address as a pre-
liminary matter an issue presented by Patterson challenging a ruling
by the trial court that a pretrial confession he made to the murder was
voluntary. Apparently, the court differentiated the suppression issue
from those issues that it refused to consider due to Patterson's post-
trial admission of guilt on the basis that if Patterson were to prevail
on the suppression issue, a retrial would not necessarily result in a
determination of guilt.

From the discussion by the court set forth above, it is impossible
to accurately characterize the rule applied as either a true waiver or
harmless error rule. On the one hand, the court indicates that it was
a rule of waiver, but the court did not hold all of the issues subject
to a waiver to be waived. On the other hand, the court does not
engage in a harmless error analysis--a determination of the effect of
claimed errors on the verdict entered by the jury. Instead, the court
appears to have focused on the impact that the admission of guilt
would have in a subsequent trial. Accordingly, we cannot say that
Patterson set forth the procedural default rule on which the PCR court
relied in this case.

The South Carolina Supreme Court next considered the effect of an
admission of guilt in State v. Sroka, 

(S.C. 1976). In
Sroka, the court considered the appeal of a defendant convicted of
armed robbery, writing:

           We affirm because the guilt of the appellant is conclu-
          sively shown by the record and any alleged error could not
          have been prejudicial. Any doubt about the correctness of

                    9
          this conclusion is eliminated by the admission of appellant
          in open court, after conviction and during the pre-sentence
          inquiry by the trial judge, that he had participated in the rob-
          bery with a sawed-off shotgun. Further review of the record,
          therefore, is rendered unnecessary. State v. Key , 

, 

[ (1971)]; State v. Miller, 

,
          

[ (1976)].

the citations to Key and Miller--both of which hold
errors to be harmless because the record conclusively demonstrated
the guilt of the defendant--the court plainly was relying on a determi-
nation that the allegations of error raised by the defendant were harm-
less. The court further supported its determination that the defendant
could not have been prejudiced by any error with the fact that the
defendant had admitted his guilt during a presentencing proceeding
following his conviction. Thus, rather than applying the procedural
default rule on which the PCR court relied in this case, the court in
Sroka applied a traditional harmless error analysis, which it supported
with an observation that the defendant had admitted his guilt. Just as
Patterson failed to establish a rule of waiver of trial errors based on
an admission of guilt by the defendant, so too did Sroka fail to estab-
lish any such rule.

The next decision addressing the effect of a defendant's admission
of guilt is Whetsell v. State, 

(S.C. 1981). In Whetsell,
two defendants challenged convictions entered against them follow-
ing their guilty pleas on the ground that their attorney was ineffective
for failing to move to suppress evidence and their confessions. The
court rejected their arguments, ruling:

           The general rule is that guilty pleas, freely and voluntarily
          entered, act as a waiver of all non-jurisdictional defects and
          defenses, including the claims of a violation of a constitu-
          tional right prior to the plea. This rule applies to the claim
          that counsel was ineffective.

           Furthermore, review of a trial error is unnecessary where
          a defendant admits in open court after his conviction that he
          is guilty.

                    10


omitted) (emphasis added).5 This ruling is the first
time that the South Carolina Supreme Court announced clearly that
an admission of guilt would result in a waiver of trial errors, thus
establishing the rule that was applied by the state habeas court here.

This rule was next applied in a decision of the South Carolina
Court of Appeals. See State v. Clifton, 

(S.C. Ct. App.
1990). In Clifton, having determined that reversible error had been
committed with respect to a charge against the defendant of posses-
sion with the intent to distribute cocaine, the court turned to address
the defendant's allegations of error with respect to her separate con-
viction for possession of cocaine. The court ruled that it was not nec-
essary to consider these remaining issues, reasoning:

          At trial, the defendant admitted she was guilty of possession
          of cocaine and testified she was willing to plead guilty to
          that offense. Where, as here, a defendant voluntarily takes
          the witness stand and testifies that she committed a particu-
          lar crime, one trial to decide whether she is, in fact, guilty
          of having committed that crime is enough.

support of this proposition, the court cited State v.
Howard, 

(S.C. 1988), and Sroka for the proposition
that errors are harmless when the record clearly demonstrates the
defendant's guilt. The court also relied on Whetsell for the proposition
that "review of trial error is unnecessary where a defendant, after con-
viction, admitted guilt in open court." 

.
Thus, the Clifton court concluded, consistent with prior case law, that
_________________________________________________________________

5 In support of this ruling, the court cited to Sroka, as did the state PCR
court in holding Johnson's claims to be procedurally defaulted. Although
the Sroka court applied a harmless error analysis rather than a waiver
analysis, because the court supported its holding with a reference to the
fact that the defendant had admitted his guilt, it is not surprising that
some courts have cited Sroka in support of a rule of waiver, particularly
in first announcing the latter rule. Undoubtedly, the waiver rule did have
its roots in Sroka even though the Sroka court did not itself apply such
a rule. Thus, the fact that the Whetsell court and the PCR court cited to
Sroka in support of their waiver rulings does not, as the dissent main-
tains, support a conclusion that a separate waiver rule does not exist.

                     11
the admission of guilt gives rise both to a conclusion that any error
raised was harmless and to a conclusion that the defendant had
waived consideration of all trial errors.

Finally, the South Carolina Supreme Court once again considered
the applicability of this procedural rule of waiver based on an admis-
sion of guilt in Craddock v. State, 

(S.C. 1997) (per
curiam). The Craddock court was reviewing the denial of a PCR peti-
tion filed by a defendant who pled guilty to armed robbery, assault
and battery with intent to kill, and grand larceny. Although the peti-
tioner admitted his guilt, he asserted that he would not have pled
guilty but for a representation made by his attorney that he would
receive a 25-year sentence in exchange for his guilty plea. Relying on
Whetsell and the petitioner's admission of guilt, the state PCR court
concluded that the petition should be denied. The appellate court,
however, determined that the rule enunciated in Whetsell did not
apply on the facts presented, reasoning that "[t]he rule set forth in
Whetsell applies only where the applicant is not prejudiced by any
allegations of the PCR application because of the admission of guilt."

first blush, this reasoning is cryptic because a holding that a rule
of waiver applies only when the petitioner is not prejudiced thereby
(i.e., when the claim of error lacks merit) would turn the concept of
a rule of waiver on its ear and could not be squared with the other
decisions applying the waiver rule. Thus, by referring to prejudice, it
appears that the court intended that the rule of Whetsell should apply
only when the error raised is one that would be unaffected by the fac-
tual guilt of the petitioner--in other words, one that is cognizable
even in the face of an admission of factual guilt. For example, it is
the well-established law of South Carolina that a plea of guilty fore-
closes a defendant from raising all nonjurisdictional errors antecedent
to the plea of guilt. See, e.g., State v. Fuller, 

, 777
(S.C. 1970), vacated in part, 

(1972). But, a defendant
who pleads guilty retains the authority to challenge whether his plea
was knowingly and voluntarily entered irrespective of his factual
guilt. See Kibler v. State, 

, 201 (S.C. 1976). Similarly,
the rule that an admission of guilt waives all trial errors is consistent
with a conclusion that such a rule would not prevent a defendant from

                     12
challenging errors that can be recognized despite the defendant's guilt.6
Read in this manner, Craddock constitutes merely a refinement of the
waiver rule set forth in Whetsell, not an inconsistent application of
that rule.7

As a review of these decisions makes clear, prior to the decision
in Whetsell the South Carolina courts had not yet articulated the pro-
cedural rule on which the state PCR court relied in holding that John-
son's admission of guilt procedurally defaulted his assertions of trial
error. And, the remaining decisions discussed above are consistent
applications of the Whetsell rule. Johnson, however, maintains that
two decisions of the South Carolina courts demonstrate that the
waiver rule set forth in Whetsell has not been applied consistently.
Specifically, Johnson points to the decision of the South Carolina
Supreme Court in Johnson's direct appeal of his second Jasper
County conviction and State v. Koon, 

(S.C. 1982),
overruled in part by State v. Patterson, 

(S.C. 1986).
On the contrary, these decisions do not demonstrate an inconsistent
application of the procedural default rule announced in Whetsell.

In Koon, the court made reference to the fact that the defendant had
admitted his guilt during the penalty phase of his capital trial and
relied on that fact in addressing one of the defendant's numerous
issues on direct appeal. Johnson claims that the failure of the court to
employ the waiver rule set forth in Whetsell to bar consideration of
the merits of all of the claims raised by the defendant constitutes an
inconsistent application of the rule. We disagree.

First, Johnson fails to recognize that the court in Koon did not rely
on the waiver rule set forth in Whetsell at all. In rejecting the claim,
the court explained:
_________________________________________________________________
6 Indeed, it would be anomalous that the rule of waiver based upon a
defendant's admission of guilt would restrict the bases for attack on a
conviction more narrowly than a plea of guilty would restrict the bases
for attack on a conviction.
7 Furthermore, even if Craddock did call into question the consistency
with which the South Carolina waiver rule has been applied, it would not
be appropriate for us to consider the decision because it was decided
after Johnson's trial. See 

& n.3.

                     13
          [A]ppellant argues that the trial court erred by not instruct-
          ing the jury on the elements of kidnapping, the alleged
          aggravating circumstance which made this a capital murder
          case. During the penalty phase of trial, the appellant admit-
          ted that he kidnapped and murdered the victim. Where the
          defendant admits an issue in a case, the issue is undisputed;
          therefore, the trial court has no duty to charge it.

support of this proposition, the court cited to State v.
Weaver, 

(S.C. 1975), and Stevens v. State, 

(Ga. 1980), both of which hold that when evidence is insufficient
to create a dispute on an issue, a trial judge has no duty to instruct the
jury on that issue. See 

; 

. Consequently, it is clear that the Koon court did not intend to
apply the waiver rule set forth in Whetsell. Rather, the court was hold-
ing only that in light of the defendant's admission of guilt to the kid-
napping and murder, the issue of intent was not contested and
therefore need not have been submitted to the jury. Because the court
was not considering the applicability of the waiver rule announced in
Whetsell, and because there is no indication that the rule was
advanced by the state as a basis for decision, we cannot conclude that
Koon indicates that the rule in Whetsell has been inconsistently
applied.

Similarly, in the direct appeal of Johnson's second Jasper County
conviction, the South Carolina Supreme Court relied on the fact that
Johnson had admitted his guilt during the sentencing phase of the trial
in holding that the failure of the trial court to instruct the jury on
"mere presence" was harmless. State v. Johnson, 

, 557
(S.C. 1991). The court wrote that Johnson's argument that the trial
court should have instructed the jury on mere presence was without
merit because "any error would be harmless beyond a reasonable
doubt in light of the admission of guilt Johnson made in his state-
ments during the closing argument to the jury." 

because the court did not rely upon his admission of guilt to
default all of the guilt-phase issues, it applied the waiver rule set forth
in Whetsell inconsistently. However, as with his argument concerning
Koon, Johnson fails to recognize that the court was not considering
the applicability of the waiver rule set forth in Whetsell. Rather, the
South Carolina Supreme Court relied on the admission of guilt to sup-

                     14
port a finding that any error in the failure to instruct the jury was
harmless. This ruling was perfectly consistent with the decisions of
Sroka and Clifton, in which the court relied upon a defendant's admis-
sion of guilt in concluding that any error was harmless. And, in light
of the fact that the State did not advance the waiver rule set forth in
Whetsell as a basis for a ruling that all of the trial errors presented by
Johnson were waived, again we cannot conclude that the failure of the
court to rely on that rule constituted an inconsistent application of it.
See 

.

In sum, the cases prior to Whetsell upon which Johnson relies do
not demonstrate an inconsistent application of the rule that an admis-
sion of guilt waives all trial errors because the rule had not yet come
into existence. And, Johnson has failed to point to any decision fol-
lowing the announcement of the rule in Whetsell in which that rule
was applied inconsistently. Consequently, we conclude that the rule
constitutes an adequate procedural ground to foreclose federal habeas
review.8
_________________________________________________________________

8 The dissent contends that the state-law rule on which the PCR court
relied in concluding that Johnson had procedurally defaulted his Brady
claim unduly burdens his right to federal habeas review in violation of
his Fourteenth Amendment rights. This argument provides no basis upon
which this court may consider the merits of Johnson's Brady claim.

First, although the dissent's argument is creative, it is of the dissent's
making and not of Johnson's. Johnson raised no argument that the South
Carolina procedural default rule on which the state PCR court relied
unduly burdens his right to have a federal court consider this issue. As
a result, this argument is waived here. See Singleton v. Wulff, 

, 120 (1976) ("It is the general rule, of course, that a federal appellate
court does not consider an issue not passed upon below."); 11126 Balti-
more Boulevard, Inc. v. Prince George's County, Md. , 

, 993
n.7 (4th Cir. 1995) (en banc) (holding arguments not discussed in appel-
late briefs are deemed abandoned); Cades v. H & R Block, Inc., 

, 876 (4th Cir. 1994) (same).

Second, even if the argument were properly before the court, it lacks
merit. The gist of the point raised by the dissent is that because Johnson
did not know the facts supporting his Brady claim prior to the admission
of guilt giving rise to his procedural default, he did not have a fair oppor-
tunity to raise the claim. In support of its position, the dissent cites to

                     15
B.

The dissent contends that even if the waiver rule set forth in
Whetsell is an adequate and independent state-law ground for deci-
sion, Johnson has demonstrated cause and prejudice to excuse his pro-
cedural default with respect to his claim that the failure of the
_________________________________________________________________

Reece v. Georgia, 

(1955), in which the Court concluded that
a Georgia procedural rule that required a defendant to challenge the
racial composition of the grand jury before indictment did not foreclose
federal habeas review of that issue. The Court reasoned that "the right to
object to a grand jury presupposes an opportunity to exercise that right."

the dissent maintains, because Johnson did not know
of the facts underlying the Brady claim prior to his admission of guilt,
he could not have presented that claim timely. This reasoning, however,
ignores the critical difference between the type of default at issue in
Reece and that at issue here. Unlike the default at issue in Reece, the
default here was premised on an admission of guilt. And, the Supreme
Court has recognized that a voluntary plea of guilt waives federal consid-
eration of allegations of antecedent constitutional violations, including
challenges to the racial composition of a grand jury, even when a defen-
dant is unaware of facts supporting the challenge prior to his plea. See
Tollett v. Henderson, 

, 266 (1973); United States v. Bluso,

, 475 (4th Cir. 1975) (explaining that Tollett compels a
"conclusion that a guilty plea advantageous to a defendant must stand
despite unknown defences which merely reduce the advantage"); see also
McMann v. Richardson, 

, 770 (1970) (holding that defen-
dant who pled guilty was not entitled to federal habeas review of claim
that his confession was obtained unconstitutionally). Thus, the mere fact
that a defendant may waive constitutional violations of which he is
unaware by admitting his guilt is hardly so inherently unfair that federal
habeas review is mandated. Indeed, the hypothetical situation offered by
the dissent--in which a defendant who is convicted of a capital murder
and faces the choice of making a plea for mercy by admitting his guilt--
is virtually identical to the situation presented when a defendant who,
although he believes that he can mount a strong defense to a charge of
capital murder, must decide whether to accept a plea bargain requiring
him to plead guilty in order to avoid the prospect of the death penalty.
In both instances, the individual must choose between admitting guilt
with an accompanying waiver of review of both known and unknown
issues or maintaining his innocence.

                    16
prosecution in the Jasper County trial to inform him prior to retrial
that one of the witnesses who testified during his first trial, Connie
Sue Hess, had recanted a portion of her testimony. See 

. Consequently, the dissent asserts, this court must reach the
merits of that claim.

Johnson, however, advanced no argument that he had demonstrated
cause and prejudice or a miscarriage of justice to excuse his state pro-
cedural default. As such, it is well settled that we do not consider
whether cause and prejudice existed. See Gilbert v. Moore, 

, 656 n.10 (4th Cir. 1998) (en banc) (holding possible cause and
prejudice not considered when petitioner fails to argue that any exist),
petitions for cert. filed, ___ U.S.L.W. ___ (U.S. May 19, 1998) (Nos.
97-9198; 97-9264); Correll v. Thompson, 

, 1288 (4th
Cir. 1995) (same); see also Teague v. Lane, 

, 298 (1989)
(same).

Nevertheless, even if we were to consider the question of cause and
prejudice sua sponte, we could not conclude that Johnson had made
an adequate showing. See Coleman v. Thompson, 

, 750
(1991) (explaining that defendant has the burden of demonstrating
cause and prejudice); Murray v. Carrier, 

, 494 (1986)
(holding that prejudice is demonstrated when petitioner shows that
error "worked to his actual and substantial disadvantage, infecting his
entire trial with error of constitutional dimension" (internal quotation
marks omitted)). For the reasons set forth below in section C, we hold
that Johnson has not demonstrated prejudice.

C.

Even if we were to conclude that these issues were not procedur-
ally defaulted due to Johnson's admission of guilt, we nevertheless
would find no basis for relief. With the exception of issues (1) and
(2), each of the claims was held by the district court to be procedur-
ally defaulted for additional reasons. And, the district court deter-
mined that all of these issues lacked merit in any event. We agree
with the reasoning of the district court with respect to these alterna-
tive assessments of Johnson's claims.

A more extended analysis of the argument that the dissent finds
troubling--Johnson's assertion that the prosecution denied him due

                     17
process of law in violation of the Fourteenth Amendment by failing
to disclose to him that Hess had recanted a portion of her testimony
--is necessary. An examination of the facts underlying this claim
demonstrates why Johnson's argument lacks merit.

During Johnson's first trial in Jasper County for the murder of
Trooper Smalls, the prosecution did not call Hess, one of the individ-
uals traveling in the RV when the murders were committed, as a wit-
ness because it was not sure what her testimony would be in light of
her prior inconsistent statements. However, Hess was called as a
defense witness and initially testified that she did not see who mur-
dered Trooper Smalls. Defense counsel presented Hess with a state-
ment she had given law enforcement officers on the day after the
murders in which she had stated that Harbert had killed both Swansen
and Trooper Smalls. On cross-examination, Hess testified that John-
son had in fact murdered both Swansen and Trooper Smalls. In addi-
tion, she acknowledged that she had made other prior statements in
which she had stated that Johnson was responsible for the murders.
On redirect, in response to questioning from defense counsel concern-
ing the changes in her statements, Hess agreed that in order to avoid
the death penalty she would say anything.

Johnson was convicted of murdering Trooper Smalls in the Jasper
County prosecution and later pled guilty to the murder of Swansen in
Clarendon County. Johnson's Jasper County conviction was over-
turned on direct appeal and remanded for retrial. Subsequent to John-
son's guilty plea in Clarendon County but prior to his Jasper County
retrial, Hess contacted attorney Marion Riggs, who had represented
her in connection with charges arising out of Swansen's murder, and
informed him that she had lied in her prior testimony and that Harbert
had actually murdered Swansen. Pursuant to Hess' request, Riggs sent
a letter to the Sheriff of Clarendon County, Horace Swilley, informing
him that Hess had recanted her testimony with respect to the Claren-
don County murder; importantly, no reference was made to the Jasper
County murder of Trooper Smalls. Defense counsel in the Jasper
County retrial was not provided with a copy of the letter from Riggs
or informed of Hess' recantation. And, rather than attempting to bring
Hess back to South Carolina from Nebraska to testify, defense coun-
sel presented her testimony from the first trial during Johnson's retrial
in Jasper County.

                     18
Johnson maintains that the prosecution's failure to reveal Hess'
recantation violated his Fourteenth Amendment rights. Suppression of
exculpatory evidence by the Government that is material to the out-
come of a trial violates due process, irrespective of the motivation of
the prosecutor. See 

. And, evidence is material
when "its suppression undermines confidence in the outcome of the
trial"--that is, when "there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding
would have been different." United States v. Bagley, 

,
682 (1985). Johnson's claim lacks merit because neither the Jasper
County prosecutor's office nor the law enforcement officials investi-
gating the murder of Trooper Smalls was aware of the letter and
because the letter was not material.

First, we cannot conclude that any member of the Jasper County
prosecutor's office or law enforcement officers investigating Trooper
Smalls' murder received the letter from attorney Riggs to Clarendon
County Sheriff Swilley. The PCR court that examined the evidence
presented on this matter concluded:

          There is no evidence in the Record that the letter from Mr.
          Riggs, indicating that Connie Sue Hess had recanted her tes-
          timony, was ever received by the Solicitor's Office of the
          Fourteenth Judicial Circuit, the Sheriff's Department in Jas-
          per County, or any other law enforcement agency directly
          involved in the Jasper County case. As such, neither the Jas-
          per County Sheriff's Department, the Fourteenth Judicial
          Circuit Solicitor's Office, nor any other law enforcement
          agency directly connected to the Jasper County case had
          possession of this document. If they did not have possession
          of this document, it cannot be the case that they failed to
          disclose it under the appropriate discovery rules prior to
          [Johnson's retrial.]

J.A. 2793. Moreover, the PCR court rejected Johnson's claim that
Sheriff Swilley testified that he had forwarded the letter to a law
enforcement agency connected with the investigation of the murder
of Trooper Smalls or the Fourteenth Judicial Circuit Solicitor's
Office. Rather, the PCR court found, a careful review of Sheriff Swil-
ley's testimony indicated that although to the best of his recollection

                    19
he would have passed the letter along the appropriate channels, he had
no independent recollection of actually having done so. Johnson has
presented no clear and convincing evidence to convince us that this
factual finding by the state court is not entitled to our deference. See
28 U.S.C.A. § 2254(d)(2), (e)(1). And, the decision of the state PCR
court that the letter was not known to members of the solicitor's
office responsible for prosecution of the Jasper County murder or law
enforcement officials investigating the murder of Trooper Smalls was
not contrary to or an unreasonable application of clearly established
federal law as decided by the Supreme Court. See 28 U.S.C.A.
§ 2254(d)(1); Green v. French, 

, 870 (4th Cir. 1998); cf.
Reddy v. Jones, 

, 982-83 (4th Cir. 1997) (holding that
the prosecution could not be held responsible for failing to disclose
exculpatory information known by law enforcement officials who
were not a part of the investigation or prosecution of the defendant's
case).

Furthermore, there is no reasonable probability that Hess' recanta-
tion of her prior testimony that Johnson was responsible for the Swan-
sen murder in Clarendon County would have affected the verdict of
guilty reached in Johnson's Jasper County retrial for the murder of
Trooper Smalls. It is critically important to focus on the evidence
Johnson alleges was withheld. The only information contained in the
letter was that Hess had recanted her testimony that Johnson had mur-
dered Swansen in Clarendon County. The letter did not indicate that
Hess had recanted her testimony that Johnson murdered Trooper
Smalls in Jasper County--the murder for which Johnson was being
retried. We cannot believe that a jury would have found Hess' posi-
tion that Johnson was not responsible for the Swansen murder--a
murder he himself had admitted--to be exculpatory with respect to
Trooper Smalls' murder, especially in view of the fact that the jury
was aware that Hess had changed her story on several previous occa-
sions.

We therefore conclude that even if Johnson had not procedurally
defaulted his claim that the prosecution denied him due process by
failing to disclose Hess' recantation prior to his Jasper County retrial,
it is without merit. And, having determined that Johnson's Brady
claim lacks merit, we have no difficulty in concluding that the rejec-
tion of this claim by the state court was not contrary to or an unrea-

                     20
sonable application of clearly established federal law. See 28
U.S.C.A. § 2254(d)(1); 

.

D.

In sum, the state PCR court found all of the issues relating to John-
son's guilt in the Jasper County trial to be procedurally defaulted, and
Johnson has failed to show that this state-law ground for decision is
not adequate and independent. Furthermore, Johnson does not argue
that cause and prejudice or a miscarriage of justice exist to excuse his
procedural default. Thus, we conclude that the district court properly
determined that Johnson had procedurally defaulted all of his claims
relating to the guilt phase of his Jasper County trial.

III.

Johnson next argues that he was deprived of effective assistance of
counsel during the sentencing phase of the Jasper County proceedings
because counsel failed to investigate or present mitigating evidence
concerning his frontal lobe syndrome, alcohol and substance abuse,
depression, mixed personality disorder, and history of emotional and
physical abuse. In reviewing counsel's performance, the state PCR
court heard testimony from a clinical psychologist, a forensic psychia-
trist, and a social worker. Additionally, the state PCR court examined
affidavits of friends, family members, a neuro-pharmacolologist, and
a behavioral neurologist. The state PCR court held that this testimony
did not warrant a conclusion that Johnson was deprived of effective
assistance of sentencing counsel. Specifically, the state PCR court
found the credibility of the expert witnesses undermined by the fact
that in forming their opinions they had relied on hearsay statements
obtained by counsel for Johnson and had not conducted any type of
independent assessment of whether the information contained in the
hearsay documents was accurate. Moreover, the state PCR court
found the credibility of the fact witnesses to be questionable. Finally,
the state PCR court found that the evidence offered by Johnson was
equally as likely to have been detrimental to his case as beneficial.

The Sixth Amendment guarantees criminal defendants the right to
effective assistance of counsel. See Strickland v. Washington, 

, 688 (1984). A defendant is deprived of this constitutional

                    21
guarantee when counsel's performance falls "below an objective stan-
dard of reasonableness" and "there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would
have been different." 

Among the duties incumbent
upon counsel is "a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations unneces-
sary." 

Satcher v. Pruett, 

, 572 (4th Cir.)
(explaining that "`[i]n any ineffectiveness case, a particular decision
not to investigate must be directly assessed for reasonableness in all
the circumstances, applying a heavy measure of deference to coun-
sel's judgments'" (quoting 

)), cert. denied,

(1997).

Johnson contends that counsel was ineffective for failing to con-
duct an adequate investigation to develop mitigating evidence. We,
however, are unable to conclude that the application of Strickland by
the state PCR court "was contrary to, or involved an unreasonable
application of, clearly established Federal law." 28 U.S.C.A.
§ 2254(d)(1).9 Counsel presented the testimony of two family mem-
bers and a minister. The minister knew Johnson personally and testi-
fied concerning his improved behavior while in prison, the poor
relationship between Johnson and his father, and the lack of a threat
that Johnson posed to others. Johnson's mother testified that Johnson
_________________________________________________________________

9 Johnson maintains that the district court erred in applying the AEDPA
standards of review because the state PCR court simply signed a pro-
posed order submitted by the Attorney General and thus the issues did
not receive the type of independent review that Congress envisioned in
establishing the deferential standards of review adopted in the AEDPA.
We, however, cannot say that the decision of the state court to adopt a
proposed order verbatim proves that the state court did not render a rea-
soned decision on the issues presented. Cf. 

n.11
(rejecting habeas petitioner's argument that the district court should not
have applied the § 2254(d) presumption of correctness to state factual
findings because the state habeas court adopted verbatim the Common-
wealth's proposed findings of fact).

Johnson also contends that the district court misinterpreted the
AEDPA standards of review by failing to apply a de novo review of legal
issues. This argument was recently rejected by our decision in 

.

                    22
did not have a history of violence toward others, grew up with an
alcoholic father who beat him, had a history of drug abuse, and had
a history of head injuries and blackouts. And, Johnson's sister con-
firmed much of the information that Johnson's mother related. On
these facts, we cannot say that the state PCR court was unreasonable
in concluding that counsel did not perform unprofessionally in failing
to investigate further.

Moreover, even if the state PCR court was unreasonable in con-
cluding that counsel's performance was within the broad range of pro-
fessionally acceptable conduct, we are not convinced that the court
was unreasonable in concluding that Johnson failed to satisfy the prej-
udice prong of Strickland. Although evidence that a defendant suffers
from a mental impairment, has abused drugs or narcotics, or suffered
a history of abuse may diminish his blameworthiness for his crime,
this evidence is a double-edged sword that a jury could well find to
be aggravating rather than mitigating. See Howard v. Moore, 

, 421 (4th Cir. 1997) (en banc), petition for cert. filed, ___
U.S.L.W. ___ (U.S. May 22, 1998) (No. 97-9263). As such, the evi-
dence that Johnson argues would have been obtained if counsel had
performed competently does not undermine our confidence in the ver-
dict, much less convince us that the state PCR court was unreasonable
in concluding that Johnson had failed to show prejudice.

IV.

With respect to the Clarendon County convictions, Johnson first
maintains that his guilty plea was involuntary because trial counsel
failed to inform him that a confession he provided to law enforcement
officers concerning the events surrounding Swansen's murder was
inadmissible. If counsel had so informed him, Johnson asserts, he
would not have pled guilty and would have insisted on going to trial.

When a defendant pleads guilty upon advice of counsel, the volun-
tariness of the plea depends upon whether the advice"was within the
range of competence demanded of attorneys in criminal cases." See
Hill v. Lockhart, 

, 56 (1985) (internal quotation marks
omitted). The two-part standard adopted in Strickland for evaluating
claims of ineffective assistance of counsel--requiring that a defendant
show "`that counsel's representation fell below an objective standard

                    23
of reasonableness'" and "`that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceeding
would have been different'"--applies to guilty plea challenges based
on ineffective assistance of counsel. 

, 694). In order to satisfy the second of these require-
ments, Johnson must demonstrate "that there is a reasonable probabil-
ity that, but for counsel's errors, he would not have pleaded guilty and
would have insisted on going to trial." 

state PCR court concluded that Johnson's statements that he
would not have pled guilty and would have gone to trial were self-
serving and lacked credibility. On the other hand, the court found
credible the testimony of Johnson's trial attorney, who testified that
the evidence against Johnson was overwhelming and that Johnson did
not rely upon the admissibility of the statement in determining
whether to plead guilty. Neither this factual finding nor the ruling of
the state PCR court that Johnson cannot show prejudice is unreason-
able. See 28 U.S.C.A. § 2254(d).

V.

Johnson also asserts that his guilty plea to the Clarendon County
crimes was involuntary because the State failed to disclose evidence
that Swansen was mentally ill, unstable, and prone to outbursts of vio-
lence and that Harbert had engaged in a homosexual act with Swan-
sen on the night of the murder. Johnson maintains that the State's
failure to disclose this evidence to him violated his due process rights
under Brady.

The state PCR court, however, disagreed. Again, the state PCR
court concluded that Johnson's assertions that he would have gone to
trial if he had known of this evidence lacked credibility and that John-
son's attorney's statements that this evidence would not have affected
Johnson's decision of whether to go to trial were credible. Under
these circumstances, we cannot say that the determination of the state
PCR court was unreasonable. See 28 U.S.C.A.§ 2254(d).10
_________________________________________________________________
10 Because, as discussed above, Johnson's Clarendon County convic-
tions are not constitutionally invalid, Johnson's argument that the use of
the Clarendon County convictions during the sentencing proceeding in
Jasper County was violative of due process lacks merit.

                    24
VI.

In sum, we conclude that all of Johnson's claims relating to the
guilt phase of the Jasper County proceeding are procedurally
defaulted. Furthermore, Johnson's claims that he was deprived of
effective assistance of counsel in the Jasper County sentencing pro-
ceedings and the Clarendon County proceedings lack merit.

AFFIRMED

ERVIN, Circuit Judge, concurring in part and dissenting in part:

I have no quarrel with the majority's affirmance of the judgment
of the district court denying the writ as to Johnson's Clarendon
County conviction and sentence of life imprisonment. For the reasons
articulated below, however, I cannot agree with the majority's defer-
ence to South Carolina's so-called "admission of guilt" procedural
default rule and its effect on Johnson's claim that material, exculpa-
tory evidence was withheld from him during his trial. On this ques-
tion, I would reverse the judgment of the district court and grant
Johnson's petition for a writ of habeas corpus as to his Jasper County
conviction. Accordingly, I respectfully dissent.

I.

Recognizing the so-called procedural default in this case effects a
complete denial of Johnson's right to due process. For that reason, I
find that South Carolina's procedural rule violates, at the most basic
level, the Due Process Clause of the Fourteenth Amendment. Accord-
ing to the PCR court, Johnson procedurally defaulted any claims he
might have that he was denied constitutionally protected rights at the
guilt phase of his trial because of his closing argument to the jury dur-
ing the sentencing phase.

My understanding of a rule of procedure is that it is one that can
be mechanically and neutrally applied, without regard to the sub-
stance of the argument at issue. We are, of course, familiar with the
operation of these kinds of procedural rules, such as the failure to
present a contemporaneous objection at trial, the failure to raise an

                     25
issue on direct appeal, or the failure to raise an issue in post-
conviction proceedings. These manners of procedural default, which
are well recognized as adequate and independent state law grounds,
illustrate the majority's error in calling the rule in this case a rule of
procedure.

When exactly did Johnson violate a South Carolina rule of proce-
dure such that our court should ignore Johnson's allegation of a fun-
damental violation of his right to a fair trial? According to the State
and the PCR court, this procedural violation occurred during the
closing argument to the jury at the sentencing phase of Johnson's
trial. I cannot concur in the majority's acceptance of a rule of proce-
dural default that can be triggered during the course of closing argu-
ment at the sentencing phase of a capital trial.

Johnson and his counsel were both given the opportunity to present
closing arguments to the jury at the sentencing phase. Johnson told
the jury that "I have no defense for anything," and that "[a]ll I have
is sorrow [for] the lives that I have ruined." Almost immediately
afterward, Johnson broke down in tears and was unable to continue.
This statement should be viewed in the context in which it was spo-
ken. The jury had already determined Johnson's guilt during the guilt-
innocence phase. At the sentencing phase, Johnson was in the position
of trying to convince the same jury that had convicted him to spare
his life. The only reasonable thing to do in that position, I assume, is
to show remorse for the crime, even if he believed he had been
wrongfully convicted of it. Johnson's so-called"admission of guilt"
was no such thing; it was a plea for mercy to a jury that had just found
him guilty of killing a South Carolina trooper.

To understand why South Carolina's rule of procedure cannot sur-
vive constitutional scrutiny, imagine that you have been convicted of
capital murder in South Carolina for a crime you did not commit
because the prosecution has withheld evidence of your innocence.1
During the sentencing phase of your trial you have no knowledge that
the prosecution has denied you access to evidence that would excul-
pate you of the crime. Nonetheless, because of South Carolina's rule
_________________________________________________________________
1 This is precisely Johnson's claim in this federal habeas petition, see
infra p. 37-40.

                     26
of procedural default, you must be very careful in what argument you
present to the sentencing jury. If you or your lawyer, in an attempt to
beg the mercy of the jury to spare your life, present an argument that
could be construed as an "admission of guilt," by operation of South
Carolina procedure you will have waived any right to challenge your
conviction in any subsequent proceeding, including both state post-
conviction and federal habeas.

State procedural rules cannot be used to unduly deprive a litigant
of his right to have his federal constitutional claim adjudicated. See
Spencer v. Kemp, 

, 1470 (11th Cir. 1986) (en banc) ("It
is a dominant theme of the Supreme Court case law . . . that a federal
habeas petitioner shall not be denied federal review of a federal con-
stitutional claim on the basis of an asserted state procedural ground
that is manifestly unfair in its treatment of that claim."). It has long
been within the province of the federal courts to inquire whether a
federal right has been denied, not only in express terms, but in sub-
stance and effect, as by putting forward a state law ground that is
without fair or substantial support. Ward v. Board of County Comm'rs
of Love County, 

, 22 (1920). In state court, when the
assertion of a federal right is "plainly and reasonably made," the fed-
eral claim "is not to be defeated under the name of local practice."
Davis v. Wechsler, 

, 24 (1923).

A fundamental question in this case is whether South Carolina's
rule of procedure adequately protects Johnson's right to due process
of law. The effect of South Carolina's procedural rule in this case is
a serious one: no court will ever consider Johnson's claim that the
prosecutor withheld exculpatory evidence during his trial. Johnson
presented this claim to the state courts as soon as the facts underlying
the claim became available to him. But according to South Carolina's
rule of procedure, Johnson's claim must be defaulted because of com-
ments that Johnson made during the course of closing arguments to
the jury during the sentencing phase. In my view, any rule of proce-
dure that operates in this manner, retroactively defaulting claims of
prosecutorial misconduct or ineffective assistance of defense counsel,
cannot comply with notions of fundamental fairness or due process of
law.

Imagine that the State had failed to provide Johnson a lawyer at all
during his capital trial. Had Johnson made an "admission of guilt"

                    27
during his pro se argument to the jury at the sentencing phase, would
this court be powerless to grant the writ because of the operation of
South Carolina's so-called procedural rule? I take it that the majori-
ty's acceptance of South Carolina's procedural rule in this case would
compel the same result in my hypothetical example.

But we need not go this far in order to reach the merits of this case.
The Supreme Court's decision in Reece v. Georgia , 

(1955), is illustrative. Reece was convicted of rape in a Georgia state
court and, on direct appeal to the Georgia Supreme Court, sought to
challenge the racial composition of the grand jury that indicted him.
That court refused to consider this challenge because, under Georgia
practice, objections to a grand jury must be made before the indict-
ment is returned. The United States Supreme Court granted certiorari
review. The Court observed that the Georgia procedural rule had been
consistently followed in that state since 1882. 

.
The Court also noted, however, that Reece had no knowledge of the
grand jury nor benefit of counsel before his indictment, 

that Reece was semi-illiterate and "of low mentality." 

accepting the general validity of the Georgia procedural rule,
the Court held that the application of the rule in this specific context
violated Reece's right to due process. The Court held that "the right
to object to a grand jury presupposes an opportunity to exercise that
right." 

a companion case, the Court stated that the test
for due process in this situation is whether a defendant was given "a
reasonable opportunity to have the issue as to the claimed right heard
and determined by the state court." Michel v. Louisiana, 

,
93 (1955). In the circumstances of that case, the Court held that "it
[was] utterly unrealistic to say" that Reece had any opportunity to
exercise his right to challenge the composition of the grand jury.

Reece holds that a state procedural rule that is facially valid and has
been consistently followed will not preclude review of federal claims
where its application in a particular case does not satisfy constitu-
tional requirements of due process of law. Paraphrasing Reece, John-
son's right to object to the prosecution's withholding of material,
exculpatory evidence at trial presupposes an opportunity to exercise
that right. I am at a loss to understand how the State has provided any
opportunity for Johnson to present his claim.

                     28
The majority distinguishes Reece by noting that the default at issue
in that case was an attack on the racial composition of the jury, while
Johnson's default was "an admission of guilt." The majority then
observes that a voluntary plea of guilt waives consideration of ante-
cedent constitutional violations. Maj. op. at 15-16 n.8. Lest there be
any confusion, I should emphasize that Johnson did not plead guilty
in Jasper County; his plea was not guilty. Cases that involve waiver
of claims when a defendant enters a guilty plea, therefore, are not
controlling law in the disposition of this case.

The majority seems to argue that waiver of constitutional issues is
not such a remarkable proposition as to warrant concern about the
denial of fundamental fairness. That may be true in a generalized, the-
oretical sense. But in order for that proposition to govern this case,
we must believe that there is no distinction between a defendant's
plea of "guilty" to an offense, and the so-called admission of "guilt"
during a capital murder defendant's attempt to beg for his life before
a sentencing jury. While I believe the first situation properly requires
a defendant to waive challenges to antecedent error, I cannot believe
the second situation is at all related to the first. The first is a legal rec-
ognition of wrongdoing and acceptance of responsibility, while the
second is a practical strategy that is required by the unique context of
a capital sentencing proceeding before a jury that has already ren-
dered a verdict of guilt. The difference between these situations is
illustrated by the procedures that must be followed, and the warnings
that must be given, before a court can even accept a guilty plea. See
Fed. R. Crim. P. 11.

Because of the nature of a capital sentencing proceeding, we can-
not attach the same waiver-consequences to the presentation of the
case in mitigation as we do to the decision to enter a guilty plea to
an offense. Indeed, any rule that prohibits a capital defendant from
presenting relevant evidence in mitigation is not only unwise but con-
trary to the Eighth and Fourteenth Amendments. See Skipper v. South
Carolina, 

, 4-5 (1986) (mitigating evidence defined as evi-
dence that might serve "as a basis for a sentence less than death");
Lockett v. Ohio, 

, 604 (1978) (plurality opinion of Bur-
ger, C.J.) (holding that the sentencer in a capital case cannot be pre-
cluded from considering mitigating factors).

                      29
As in Reece, it is utterly unrealistic to say that the State has
afforded Johnson any meaningful opportunity to exercise his right to
present his Brady claim before a South Carolina court. Whether the
procedural rule in this case is facially invalid, or simply invalid as
applied in this particular instance, it is incompatible with the notion
of fundamental fairness that inheres in the Due Process Clause of the
Fourteenth Amendment.

II.

The arguments above are only the broadest and most general ways
that South Carolina's rule of procedural default impermissibly bur-
dens Johnson's right to have his federal claim heard. More specific
reasons, which exist within the well-established framework for con-
sidering whether a state procedural rule is an adequate and indepen-
dent ground, also compel a finding that we should not defer to South
Carolina's procedural default in this case.

In order to be an adequate state law ground, the rule of procedure
must be regularly or consistently applied by the state court. See
Johnson v. Mississippi, 

, 587 (1988). The majority holds
that South Carolina's "admission of guilt" rule of procedure is regu-
larly and consistently applied. It arrives at this holding after a pains-
taking examination of the South Carolina caselaw that touches on the
so-called procedural rule at issue in this case. According to the major-
ity, five reported cases (Patterson, Sroka, Whetsell, Clifton, and
Craddock) involve a criminal defendant's "admission of guilt," but
careful analysis reveals that only the three most recent cases apply a
procedural rule. The earlier cases, Patterson and Sroka, instead
involve a harmless error analysis. For the reasons that follow, I
believe that the majority's analysis is in error in several respects.

We should begin our analysis with the decision of the South Caro-
lina court that invoked the procedural rule at issue here -- the state
PCR court. In its discussion of the rule at issue in this case, the PCR
court held: "The State Supreme Court has long held that an admission
of guilt constitutes a waiver of all claims that one's conviction is
improper." The authorities cited for this proposition are, first, State v.
Sroka, 

(S.C. 1976), and second, Whetsell v. State, 

(S.C. 1981). According to the majority, however, State v.

                     30
Sroka is not a case in which this procedural rule was applied. In fact,
the majority asserts that the "admission of guilt" procedural rule "had
not yet come into existence" at the time Sroka was decided. Maj. op.
at 15. According to the majority, then, the PCR court's citation to
Sroka as justification for invoking the procedural rule is wrong.2

In effect, the majority holds that the PCR court erred in its interpre-
tation of South Carolina law. As the majority itself recognizes, the
law of our circuit forbids us from correcting errors of state law on
federal habeas review. Barnes v. Thompson, 

, 974 n.2 (4th
Cir. 1995). This point alone compels a rejection of the majority's
analysis. Not only does the majority err in reviewing an issue of state
law, however, but its analysis of South Carolina law is incorrect.
Although we are precluded on habeas review from telling South Caro-
lina courts what their own state law is, I must come to the defense of
the PCR court's interpretation of South Carolina law, given the
majority's extended discussion of South Carolina law which holds
that the PCR court has misinterpreted its own state's precedents.

According to the majority, the "admission of guilt" procedural rule
has its genesis in the South Carolina Supreme Court's decision in
Whetsell. In Whetsell, two criminal defendants who pled guilty to
charges of housebreaking and grand larceny sought relief from their
convictions based on ineffective assistance of counsel. The court
rejected the claim, citing the "general rule that guilty pleas, freely and
voluntarily entered, act as a waiver of all non-jurisdictional defects
and defenses," including a claim of ineffective assistance of counsel.

. Of course, because Johnson pled not
guilty in this case, this is not the rule at issue here.

The court in Whetsell continued: "Furthermore, review of a trial
error is unnecessary where a defendant admits in open court after his
conviction that he is guilty." 

to this portion of
_________________________________________________________________
2 On several occasions, the majority refers to the "procedural rule on
which the PCR court relied." When the majority uses this phrase, it does
so in a theoretical sense -- in effect, "the rule on which the PCR court
would have relied, had it properly understood South Carolina law with
regard to `admissions of guilt' and procedural default." The rule on
which the PCR court actually relied in its written opinion is Sroka.

                     31
Whetsell, the majority underlines the entire sentence and announces:
"This ruling is the first time that the South Carolina Supreme Court
announced clearly that an admission of guilt would result in a waiver
of trial errors, thus establishing the rule that was applied by the state
habeas court here." Maj. op. at 11. According to the majority's analy-
sis, this holding is a clear break from any rule previously invoked by
South Carolina courts. Curiously, however, the majority chooses to
omit the citation that immediately follows this ground-breaking sen-
tence. See 

clever to omit the citation because the
case which is cited as authority for this rule is Sroka. 

. The majority propounds an elaborate theory of how
Sroka does not announce the same rule upon which the Whetsell court
relies, but omits the citation in Whetsell (the smoking gun, as I see it)
that definitively contradicts the majority's creative and novel interpre-
tation of South Carolina caselaw.

How the majority can read Whetsell, and its citation to Sroka, and
claim that Sroka and Whetsell are premised on different legal doc-
trines (harmless error versus procedural default) is utterly bewilder-
ing. Any fair reading of Whetsell (and Clifton, for that matter, which
also cites Sroka) indicates that the rules invoked in all these cases
(Sroka, Whetsell, Clifton, and Craddock) are the same. The majority's
interpretation of these cases has no support in South Carolina
caselaw. Not only is there no South Carolina case that supports the
majority's interpretation, the cases themselves, when read in a com-
monsense, reasonable manner, are not consistent with the majority
opinion.

I am confident that my interpretation of the South Carolina caselaw
is correct, in part, because it is in accord with the position of the
South Carolina Attorney General. In its brief, the State agrees with
the PCR court that all Johnson's claims challenging his conviction are
procedurally defaulted by virtue of his "admission of guilt." In sup-
port of this argument, the State cites to Sroka and no other case.
Appellees' Br. at 59. The State then offers argument that the admis-
sion of guilt procedural rule "is a well recognized procedural bar that
is regularly followed in State court." 

the paragraphs that
follow this claim, the State's brief discusses two cases: Sroka and
Patterson. In contrast, the majority holds that Sroka and Patterson are
not cases that invoke the procedural rule at issue in this case.

                    32
The following paragraphs in the State's brief discuss Whetsell and
Clifton with no mention that Whetsell was the case that supposedly
originated the procedural rule invoked here. The State makes no men-
tion of the subtle distinctions that the majority perceives in South Car-
olina caselaw; rather, the Attorney General, in accord with the
decisions of the South Carolina courts, treats Sroka, Patterson,
Whetsell, and Clifton as authorities which support a single rule of pro-
cedure. I am perplexed by the majority's holding that Sroka did not
invoke the procedural rule at issue in this case when both the state
PCR court and the South Carolina Attorney General have told us that
Sroka does stand for that proposition.

This entire argument, the definition of the "admission of guilt" pro-
cedural rule and whether it has been consistently applied, is much like
the enterprise of trying to fit a square peg in a round hole. The diffi-
culty of even defining what South Carolina's rule is in this case
should be an indication that this "admission of guilt" doctrine, what-
ever it is, is not a rule of procedure. The South Carolina Supreme
Court's recent decision in Craddock v. State, 

(S.C.
1997), makes clear that the so-called "rule" at issue in this case is
harmless error review disguised in waiver and procedural garb. In
Craddock, the court refused to apply the "admission of guilt" proce-
dural default line of cases to bar the PCR application of a prisoner
who alleged the ineffective assistance of counsel in his armed rob-
bery, assault and battery, and grand larceny convictions. In his PCR
hearing, Craddock admitted his guilt, but alleged that he would not
have pled guilty but for the fact that his counsel promised that he
would receive a twenty-five year sentence in exchange for his plea.
The PCR court directed a verdict for the State, invoking procedural
default for the "admission of guilt," but the supreme court vacated
that order. The court held that the "admission of guilt" rule could not
apply because "his admission of guilt did not render [Craddock's inef-
fective assistance of counsel claim] non-prejudicial." 

.

The majority recognizes the problems of deferring to a rule of pro-
cedure that only operates when it would be "non-prejudicial," and for
that reason, believes that Craddock "constitutes merely a refinement
of the waiver rule set forth in Whetsell." Maj. op. at 13. True proce-
dural rules (for example, filing deadlines and requirements of contem-

                    33
poraneous objection) may require interpretation in various contexts,
but the rules themselves are not subject to "tinkering" in the way the
majority believes the court "refined" the rule in Craddock. Craddock
illustrates that what we are dealing with in this case is not a proce-
dural rule at all, but rather, a harmless error doctrine that has been
infiltrated by the language of waiver and default.

The majority would be content to allow South Carolina to adopt a
procedural rule that is contingent upon a South Carolina court's case-
by-case determination that a defendant will not be prejudiced by its
invocation. According to the majority, so long as South Carolina
terms this exercise a rule of "procedural default," we shall not inquire
as to whether it can be said that this rule has been, or can be, consis-
tently applied. As I have argued, I do not believe there is any such
thing as an "admission of guilt" procedural rule in South Carolina.
Even if there is such a rule, the South Carolina courts' interpretation
of that rule demonstrates that it has not been, and cannot be, consis-
tently applied. The majority attempts to save this so-called rule by
whittling away those decisions which render its invocation inconsis-
tent, leaving us with a rule of procedure that has been applied by
South Carolina courts in only three reported cases.

In sum, a state may not insulate important constitutional claims
from federal review by categorizing harmless error review as a rule
of procedure, then making application of the "rule" contingent upon
both the substance of the closing argument at the sentencing phase of
trial and a case-by-case determination of the prejudice that resulted
from the constitutional error alleged by the defendant. If South Caro-
lina's so-called procedural rule exists, it has not been consistently
applied, and therefore it is not an adequate and independent state law
holding to which we as a federal court must defer.

III.

A.

Assuming that I have been wrong in all my previous observations,
Johnson is still entitled to have his Brady claim heard on the merits.
If Johnson has defaulted his federal claims in state court pursuant to
an independent and adequate state procedural rule, he is barred from

                    34
raising those claims on federal habeas unless he can show cause for
the default and prejudice resulting therefrom.3 Coleman v. Thompson,

, 750 (1991); Wainwright v. Sykes , 

, 87-91
(1977). Johnson may demonstrate cause with "a showing that the fac-
tual or legal basis for a claim was not reasonably available to counsel"
at the time of the default. Murray v. Carrier , 

, 488
(1986); George v. Angelone, 

, 364 (4th Cir. 1996).

Johnson's showing of "cause" for his default is irrefutable. Johnson
presented his Brady claim to the state PCR court, which considered
and denied the claim on its merits. In the alternative, the PCR court
held that Johnson had procedurally defaulted this claim during the
course of his remarks to the jury at the sentencing phase of his trial.4
_________________________________________________________________
3 The majority is correct that the law in our circuit forbids us from con-
sidering whether "cause and prejudice" excuse a procedural default
unless the petitioner presents the argument, Gilbert v. Moore, 

, 656 n.10 (4th Cir. 1998) (en banc), although, contrary to our cir-
cuit's precedent, I do not believe such a rule is required under, or even
suggested by, Teague v. Lane, 

, 298 (1989). Nevertheless,
the majority believes that Johnson has not advanced a cause and preju-
dice argument, and for that reason, we should not consider it.

I must concede that Johnson's briefs do not indicate an argument using
the language of "cause and prejudice" that would excuse the default.
However, my recollection from oral argument, and the handwritten notes
of my law clerk, indicate that Johnson's counsel offered a "cause and
prejudice" argument at oral argument in response to questions on this
issue from Judge Wilkins. Unfortunately, the tape of the oral argument
has been misplaced, and there is no way to independently confirm the
accuracy of my memory or the notes of my law clerk.

Due to the seriousness of Johnson's Brady claim, and the conse-
quences to Johnson should we choose not to address the merits of that
claim, I am disposed to consider a claim of cause and prejudice in this
case, even one raised for the first time at oral argument. I should also
note that the cause and prejudice analysis is an alternative argument, and
that my principal concern lies in the majority's holding that the so-called
procedural rule that has been invoked in this case is an adequate state law
ground for decision -- that it has been regularly and consistently applied
by the South Carolina courts. On this issue, Johnson has offered exten-
sive, and persuasive, arguments.
4 The federal district court below, after rejecting the Brady claim on the
merits, relied on the PCR court's "procedural default" alternative holding
in its own alternative holding. J.A. at 533.

                    35
Johnson therefore can show cause for this default if he proves that the
factual basis for his Brady claim was not reasonably available to
counsel during the sentencing phase of the trial. There can be no
doubt that Johnson has made such a showing.

By definition, a Brady claim cannot be reasonably available to a
defendant during the course of his trial. A Brady claim is an allega-
tion of concealment that can only come to light after a trial when the
withholding is made known to the defense during post-conviction
fact-finding. If the defense knows of exculpatory information in the
prosecutor's possession during trial, he would surely ask for it. And
even if defense counsel did not ask for the information, it does noth-
ing to excuse the prosecutor's independent duty to disclose any mate-
rial, exculpatory information on his own initiative. Like an allegation
of ineffective assistance of counsel, the factual basis for a Brady
claim can only be reasonably available to the defendant after trial.

This discussion highlights the absurdity of the"procedural rule" at
issue in this case. Under South Carolina's rule of procedure, certain
defendants who make "admissions of guilt" (those defendants who
fail to demonstrate prejudice pursuant to Craddock) must make a
Brady claim prior to the sentencing phase of their trial in order to
avoid a procedural default. The consequence of failing to raise your
Brady claim during trial is that no state or federal court (direct appeal,
PCR, or federal habeas) will ever consider your Brady claim on its
merits. Assuming once again that this scheme is constitutional, John-
son, at the very least, has shown cause for his failure to conform to
South Carolina's rules of procedure.

B.

In order to overcome procedural default, Johnson must also show
that he was prejudiced at trial by the error of which he complains.

. I believe that Johnson easily meets this
burden, and this discussion illustrates what troubles me so greatly
about the majority's holding.

Johnson was convicted on the basis of the testimony of two wit-
nesses, the only two people who can offer an eyewitness account of

                     36
the events that led to Trooper Smalls's death.5 The two witnesses
were Johnson's cohorts in the RV when Trooper Smalls was killed:
Curtis Harbert and Connie Sue Hess. After the shooting, in her first
statement to the police, Connie Sue Hess stated that Harbert had
killed Trooper Smalls. Later, Hess changed her testimony and averred
that Johnson had killed Trooper Smalls. At Johnson's first trial, Hess
and Harbert both testified that Johnson shot the trooper, while Hess
admitted that in her first statement she had said Harbert killed
Trooper Smalls. After Johnson's conviction was reversed by the
South Carolina Supreme Court on direct appeal, Harbert again testi-
fied against Johnson at his second trial. Hess' testimony from the first
trial was read to the jury at the second trial, presumably because Hess
had returned to her home in Nebraska and was unable to return to
South Carolina. Although Harbert and Hess had both been indicted
for the murder of Trooper Smalls, the Jasper County prosecutor
dropped all charges against them after their testimony against John-
son.

There is no physical evidence that links Johnson to the murder of
Trooper Smalls. What little physical evidence that does exist in this
case appears to exonerate Johnson of the crime. After Johnson's
arrest, the police took swabs of his hands for gunpowder residue. The
tests were negative even though, as a state law enforcement officer
admitted, the swabs were taken well within the time frame in which
gunpowder residue should have been present on Johnson's hands if
he had fired a gun. See J.A. at 953-54. Harbert's hands were not tested
until approximately three hours after Johnson was tested. While Har-
bert's test was also negative, the result was inconclusive because too
much time had elapsed between the murder and the test in order to
obtain an accurate result. See id.
_________________________________________________________________

5 A third witness, Ronnie Dale Stevenson, also testified against Johnson
at trial, although his testimony surely had little effect on the jury. Steven-
son, a regular police informant with a long criminal history, was one of
Johnson's fellow inmates and testified that Johnson once said, "I don't
remember shooting [Trooper Smalls], but I know I did it." J.A. at 1003.
This statement is consistent with Johnson's contention throughout this
matter, that he cannot remember any part of the events regarding the
shooting of Trooper Smalls because of his profound intoxication.

                     37
Unknown to Johnson's defense counsel, Hess had contacted her
defense counsel in Clarendon County, Marion Riggs, after her testi-
mony in Johnson's first trial, but prior to Johnson's second trial. From
Nebraska, Hess informed Riggs that Harbert, and not Johnson, had
committed the two murders, and that she would be willing to testify
to that effect. Riggs wrote a letter to the Clarendon County sheriff that
informed him his client was recanting her testimony that Johnson had
killed Dan Swansen. As the district court found, while Riggs' letter
only mentioned Hess' recantation as to Swansen's murder, Riggs
understood Hess to be recanting her testimony about both murders.
J.A. at 500 & 2116-17.

The majority deems it critically important that Riggs' letter to the
Clarendon County sheriff only mentioned Hess' recantation as to the
shooting of Swansen in Clarendon County. Based on this fact, the
majority holds that the letter cannot be deemed"material" because a
jury would not have found Johnson's lack of culpability in the murder
of Swansen exculpatory with respect to the murder of Trooper Smalls.
The majority's analysis is incorrect for two reasons.

First, the entire Jasper County prosecution was premised on a the-
ory that Johnson murdered Trooper Smalls in order to prevent the
officer from discovering that he had previously murdered Swansen in
Clarendon County. This was the reason that the prosecution presented
the testimony of Stevenson, the jailhouse informant, who testified, "I
asked [Johnson] why did he shoot [Smalls] and he said, because there
was a dead man in the back of the RV." J.A. at 1003. Evidence that
Johnson had not committed the Clarendon County murder, by itself,
would have attacked the heart of the prosection's theory in this case.

Second, had counsel for Johnson been given Riggs' letter to the
Clarendon County sheriff, indicating that she recanted her testimony
as to the murder of Swansen, it is certain that they would have con-
tacted Hess in Nebraska prior to the second Jasper County trial. Once
in contact with Hess, they would have learned that Hess was willing
to testify that Harbert shot both Swansen and Trooper Smalls. At a
deposition during the PCR proceedings, when Johnson's trial counsel
was shown for the first time Riggs' letter to the Clarendon County
sheriff, he responded by saying, "I think an innocent man is up there
in prison." J.A. at 1936. Given that reaction to the exculpatory value

                     38
of this information, I am certain that had Riggs' letter been given to
Johnson's trial counsel, they would ultimately have learned that Hess'
most recent recollection of the events in this case implicates Harbert
as the murderer, not Johnson.

At the PCR hearing, undisputed testimony established that the
Clarendon County sheriff, "to the best of [his] recollection," see J.A.
at 1842, passed the letter on to the chief state agent investigating the
Jasper County murder. This agent was in the courtroom throughout
the PCR proceedings, yet the State never called him as a witness to
testify that he had not, in fact, received the letter. From this evidence,
I gather that the lead agent in the Jasper County investigation was on
notice that one of only two witnesses against Johnson had recanted
her testimony. Under these circumstances, the law is clear that it is
irrelevant, for purposes of a Brady claim, whether the exculpatory
evidence is in the hands of the police rather than the prosecutor. See
Boone v. Paderick, 

, 450-51 (4th Cir. 1976); Barbee v.
Warden, Md. Penitentiary, 

, 846 (4th Cir. 1964).

The State never informed Johnson's counsel at the second trial that
one of the two witnesses on whose testimony he was soon to be con-
victed had recanted and was willing to testify that it was the other wit-
ness against Johnson who had indeed murdered Trooper Smalls. Hess
would have no motive to lie in her recantation and, in fact, her recan-
tation could only work to her own detriment by exposing her to crimi-
nal charges of perjury for her sworn testimony during the first trial.
I believe there can be no doubt that information of Hess' recantation
was material, exculpatory evidence that should have been turned over
to defense counsel prior to Johnson's second trial, and that the failure
to do so was sufficiently prejudicial to excuse Johnson's procedural
default. For this reason, I would reverse the judgment of the district
court and grant the writ as to Johnson's Jasper County conviction.

IV.

It disturbs me greatly that Johnson stands convicted of murder, and
is sentenced to die, based on the testimony of two persons, the first
of whom has since recanted her testimony and the second of whom
has now been identified as the murderer by the first. It is even more
disturbing that the State may have had knowledge of the first wit-

                     39
ness's recantation, but concealed that information from the defense
during Johnson's trial. What is unconscionable, however, is that John-
son may be put to death without any court, state or federal, ever con-
sidering the substance of his Brady claim because of a so-called
procedural rule that purportedly waives Johnson's right to contest his
conviction because of his plea for mercy before the sentencing jury.
The majority's disposition of this case violates the most basic notion
of fairness that our Constitution provides -- that a person not be
deprived of his life without due process of law. I must, therefore,
respectfully dissent.

                    40