Filed: Dec. 17, 2008
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-6 THOMAS TRESHAWN IVEY, Petitioner - Appellant, v. JON OZMINT, Commissioner, South Carolina Department of Corrections, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Rock Hill. G. Ross Anderson, Jr., District Judge. (0:07-cv-04024-GRA-BM) Argued: October 29, 2008 Decided: December 17, 2008 Before NIEMEYER, TRAXLER, and AGEE, Circuit Judges. Affirmed by unpublished
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-6 THOMAS TRESHAWN IVEY, Petitioner - Appellant, v. JON OZMINT, Commissioner, South Carolina Department of Corrections, Respondent - Appellee. Appeal from the United States District Court for the District of South Carolina, at Rock Hill. G. Ross Anderson, Jr., District Judge. (0:07-cv-04024-GRA-BM) Argued: October 29, 2008 Decided: December 17, 2008 Before NIEMEYER, TRAXLER, and AGEE, Circuit Judges. Affirmed by unpublished o..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-6
THOMAS TRESHAWN IVEY,
Petitioner - Appellant,
v.
JON OZMINT, Commissioner, South Carolina Department of
Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. G. Ross Anderson, Jr., District
Judge. (0:07-cv-04024-GRA-BM)
Argued: October 29, 2008 Decided: December 17, 2008
Before NIEMEYER, TRAXLER, and AGEE, Circuit Judges.
Affirmed by unpublished opinion. Judge Agee wrote the opinion,
in which Judge Niemeyer and Judge Traxler concurred.
ARGUED: William Harry Ehlies, II, Greenville, South Carolina,
for Appellant. Donald John Zelenka, SOUTH CAROLINA ATTORNEY
GENERAL’S OFFICE, Columbia, South Carolina, for Appellee. ON
BRIEF: Robert E. Lominack, Columbia, South Carolina, for
Appellant. Henry D. McMaster, Attorney General, John W.
McIntosh, Chief Deputy Attorney General, SOUTH CAROLINA ATTORNEY
GENERAL’S OFFICE, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
AGEE, Circuit Judge:
Thomas Treshawn Ivey, convicted of murder and sentenced to
death by the State of South Carolina, appeals from the district
court’s denial of his petition for a writ of habeas corpus under
28 U.S.C. § 2254. Because Ivey failed to rebut by clear and
convincing evidence the presumption of correctness due the state
court’s factual findings that a disputed juror was qualified to
be empanelled, and that his trial counsel had no actual conflict
of interest, and because the state court’s determination that
Ivey’s appellate counsel was not ineffective was not an
unreasonable application of clearly established Federal law, as
determined by the Supreme Court, we affirm the judgment of the
district court dismissing the petition with prejudice.
I.
A.
In January 1993, Ivey and Vincent Neumon escaped from jail
in Alabama, stole a vehicle, and drove to Neumon’s hometown of
Columbia, South Carolina. They then abducted Robert Montgomery
in his minivan and, according to Neumon, Ivey later shot
Montgomery to death. They subsequently drove to Atlanta with
Patricia Perkins, where they stole another car. The trio then
drove to a mall in Orangeburg, South Carolina, where Perkins and
Neumon aroused suspicion by attempting to buy several hundred
2
dollars of merchandise with checks and identification taken from
the latest stolen car. During a confrontation with Sergeant
Thomas Harrison, an Orangeburg police officer, Ivey shot
Harrison to death.
Neumon subsequently confessed to his role in these crimes
and entered into a plea agreement requiring him to testify
against Ivey. The Harrison case was prosecuted first and Ivey
was found guilty of Harrison’s murder and sentenced to death.
Neumon testified in both the guilt and penalty phases of that
trial. Ivey was subsequently prosecuted for Montgomery’s
kidnapping, robbery, and murder. In July 1995, he was convicted
of these offenses and again sentenced to death.
B.
Kawiana Young was a member of the venire for the Montgomery
trial. During voir dire, Young stated at times that she would
always vote to impose the death penalty upon a defendant
convicted of murder. However, during other portions of her voir
dire, Young stated that she would keep an open mind, listen to
both sides, and determine the best outcome for that particular
case. Ivey moved to strike Young for cause but the state trial
court found “she’s a qualified juror given the totality of her
responses.” (J.A. 41-61.)
3
C.
Although he had already testified against Ivey in the guilt
and sentencing phases of the Harrison trial and the guilt phase
of the Montgomery trial, Neumon refused to testify during the
sentencing phase of the Montgomery trial. The trial court
granted the prosecution’s motion to call Neumon as a court’s
witness. Neumon continued to refuse to testify, whereupon the
court cited him for contempt, declared him an unavailable
witness, and allowed the prosecution to read portions of his
testimony from the Harrison trial. Ivey objected that reading
Neumon’s testimony from the Harrison trial would prevent Ivey
from cross-examining him--that his cross-examination might be
substantially different than that in the Harrison trial and that
this process was prejudicial. The trial court overruled the
objection and Neumon’s testimony from the Harrison trial was
read into the record in the sentencing phase of the Montgomery
trial.
D.
On direct appeal to the Supreme Court of South Carolina for
his convictions and death sentence in the Montgomery trial, Ivey
was represented by Joseph Savitz, deputy chief attorney in the
state’s Office of Appellate Defense. Savitz argued, inter alia,
that juror Young should not have been seated and that the trial
4
court unduly influenced the jury by calling Neumon as a court’s
witness. Savitz did not raise a Confrontation Clause challenge
to the admission of Neumon’s testimony from the Harrison trial.
In South Carolina v. Ivey, 502 S.E.2d 92, 95 (S.C. 1998), cert.
denied,
525 U.S. 1075 (1999), the Supreme Court of South
Carolina affirmed Ivey’s convictions and death sentence from the
Montgomery trial.
E.
In the Montgomery trial, Ivey was represented by Doyet
“Jack” Early, court-appointed counsel, and Michael Culler, a
public defender. In 2001, while pursuing his state collateral
review, Ivey discovered that Culler had been appointed to
represent Perkins in proceedings related to the earlier Harrison
trial. However, Culler had been permitted to withdraw from
representing Perkins based on a letter he wrote to the trial
court stating that he had a “conflict of interest” because
“Officer Tom Harrison, who was killed in this incident, was a
personal friend.” (J.A. 310.) When Ivey then raised the issue
of Culler’s conflict of interest during trial in the state
collateral proceeding, Culler confirmed that he had written the
letter but denied any personal relationship with Harrison or
that any conflict had, in fact, existed. Culler testified that
his relationship with Harrison was merely professional and
5
tangential, that the letter was inaccurate, and that he had no
explanation for how it had come to be written. In addition,
Early testified that “Culler never acted less than zealous in
Ivey’s defense and he appeared to be absolutely interested in
saving Ivey’s life.” (J.A. 481.)
F.
Among the grounds for relief raised in his petition for
state collateral review, Ivey alleged (1) that Culler’s recently
discovered withdrawal from representing Perkins reflected an
actual conflict of interest that deprived Ivey of effective
assistance of trial counsel, and (2) that Savitz deprived him of
effective assistance of appellate counsel by failing to
challenge Young’s inclusion on the jury and failing to challenge
the admission of Neumon’s testimony from the Harrison trial on
Confrontation Clause grounds.
After comparing the contents of Culler’s withdrawal letter
with Culler and Early’s testimony, the state court found that
the letter’s contents were factually inaccurate, that Culler
“had no personal relationship with Officer Harrison,” and “no
conflict of interest existed” in Culler’s representation of
Ivey. (J.A. 482.) The state court also determined that Savitz
had not been ineffective because the use of Neumon’s prior
testimony from the Harrison trial did not violate the
6
Confrontation Clause. Finally, the court ruled that Ivey did
not prove that Savitz had been ineffective for failing to
challenge Young’s inclusion on the jury because Savitz had
raised that challenge on appeal. Accordingly, the state court
denied Ivey’s petition for post-conviction collateral relief.
In a federal habeas petition in the district court, Ivey
renewed his claims that Culler had an actual conflict of
interest that deprived Ivey of effective assistance of counsel
at trial and that Savitz’s failure to challenge Neumon’s
testimony on Confrontation Clause grounds deprived him of
effective assistance of counsel on appeal. Ivey also challenged
on the merits the trial court’s inclusion of Young on the jury.
The district court denied Ivey’s petition. Ivey timely filed a
notice of appeal and the district court granted a certificate of
appealability pursuant to 28 U.S.C. § 2253.
II.
Ivey contends the district court erred in denying his §
2254 petition because (1) Young’s responses to questions during
voir dire show that she was not impartial about the application
of the death penalty, (2) Culler’s letter requesting withdrawal
from representation of Patricia Perkins demonstrates that Culler
had an actual conflict of interest adversely affecting his
performance at trial, and (3) Savitz’s failure to raise a
7
Confrontation Clause challenge to the use of Neumon’s prior
testimony constituted ineffective assistance of appellate
counsel.
This Court reviews the denial of a § 2254 petition de novo,
applying the same standards applicable in the district court.
Jackson v. Johnson, 523 F.3d 273, 276 (4th Cir. 2008). “An
application for a writ of habeas corpus . . . shall not be
granted” on any claim adjudicated in state proceedings unless
that adjudication:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or (2) resulted in a
decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.
28 U.S.C. § 2254(d) (2000). When assessing whether the state
court’s determination of facts is unreasonable, we presume those
determinations are correct unless the applicant rebuts “the
presumption of correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1) (2000); Lenz v. Washington, 444 F.3d 295,
300-01 (4th Cir. 2006). 1
1
Ivey contends that “some tension appears to exist between
§ 2254(e)(1), under which state court factual findings are
presumed to be correct, and § 2254(d)(2), which can only be read
as requiring federal habeas courts to look beneath a state
court’s factual findings to assess their reasonableness in light
of the record that was before the state court.” (Br. Appellant
15.) Ivey argues that the district court should have undertaken
(Continued)
8
A.
Ivey contends that Young’s responses to questioning during
voir dire established that she believed death to be the only
appropriate sentence for a person convicted of murder. Because
this issue was considered during Ivey’s direct appeal, 2 it “was
adjudicated on the merits in State court proceedings” for the
purposes of § 2254(d).
The Sixth Amendment guarantees the accused a right to trial
by an impartial jury, Fullwood v. Lee, 290 F.3d 663, 677 (4th
the latter approach in his case and determined de novo whether
the state court’s factual findings are reasonable.
A similar argument was made by the applicant in Lenz. In
that case, this Court, relying in part on Miller-El v. Dretke,
545 U.S. 231 (2005), held that a state court’s factual findings
are presumed to be sound in a § 2254(d)(2) review for
reasonableness unless rebutted by clear and convincing evidence
as required by § 2254(e)(1). 444 F.3d at 300-01. Our precedent
in Lenz, which the district court applied below, controls here.
See, e.g., McMellon v. United States,
387 F.3d 329, 334 (4th Cir
2004) (restating the well-established rule that one panel of
this Court may not overrule another).
2
Because Ivey raised the issue of Young’s impartiality on
the merits at trial and in the state supreme court on direct
appeal, his failure to present that issue in his state habeas
petition does not preclude our consideration of the issue here.
See Woodford v. Ngo, 548 U.S. 81, 92 (2006) (“A state habeas
petitioner is generally barred from obtaining federal habeas
relief unless the prisoner has presented his or her claims
through one ‘complete round of the State’s established appellate
review process.’” (quoting O’Sullivan v. Boerckel,
526 U.S. 838,
845 (1999)).
9
Cir. 2002), which precludes the qualification of a juror
predisposed in all cases to impose the death penalty:
A juror who will automatically vote for the death
penalty in every case . . . has already formed an
opinion on the merits[;] the presence or absence of
either aggravating or mitigating circumstances is
entirely irrelevant to such a juror. . . . If even
one such juror is empaneled and the death sentence is
imposed, the State is disentitled to execute the
sentence.
Morgan v. Illinois, 504 U.S. 719, 729 (1992).
However, the question of Young’s impartiality is a question
of fact and the state court’s determination of that issue is
entitled to the § 2254(e)(1) statutory presumption of
correctness, see Wainwright v. Witt, 469 U.S. 412, 429 (1985),
which Ivey has not overcome by clear and convincing evidence.
Ivey does nothing more than point to that portion of Young’s
voir dire, already considered by the trial court, where she
stated a preference for the death penalty. However, Ivey’s
argument ignores the totality of Young’s voir dire testimony,
particularly those portions where she indicated she would obey
the court’s instructions, “could vote for a life sentence,” and
would consider all the evidence during the sentencing phase to
arrive at what was “appropriate, given the circumstances of a
particular case.” (J.A. 48.) Accordingly, the state courts’
determination that Young was a qualified juror was not “an
unreasonable determination of the facts in light of the evidence
10
presented.” Thus, we find no error in the district court’s
denial of Ivey’s petition on this ground. 3
B.
Ivey also contends that Culler’s letter requesting
withdrawal from representation of Perkins in the Harrison trial
proves an actual conflict of interest on the part of his trial
counsel, which deprived Ivey of the effective assistance of
counsel. Because this issue was considered during Ivey’s state
habeas review, it “was adjudicated on the merits in State court
proceedings” for the purposes of § 2254(d).
The Sixth Amendment guarantees an accused the
right to effective assistance of counsel, see
Strickland v. Washington, [466 U.S. 668 (1984)], and
an essential aspect of this right is a lawyer
unhindered by conflicts of interest. In general, to
prevail on an ineffective assistance claim, a
petitioner must establish (1) that his lawyer's
performance was deficient by showing that his
performance fell below an objectively reasonable
standard, and (2) that his deficient performance
prejudiced the petitioner's case.
We have recognized that, as a general
proposition, the effective performance of counsel
requires meaningful compliance with the duty of
loyalty and the duty to avoid conflicts of interest,
3
Because we conclude that the state court’s determination,
based upon the totality of the voir dire testimony, was not an
unreasonable determination of the facts in light of the evidence
presented, we need not consider Ivey’s additional claim that the
district court erred, under Snyder v. Louisiana, 128 S. Ct. 1203
(2008), in relying on the trial court’s ability to observe the
juror’s demeanor.
11
and a breach of these basic duties can lead to
ineffective representation. When a petitioner
premises his ineffective assistance claim on the
existence of a conflict of interest, the claim is
subjected to the specific standard spelled out in
Cuyler v. Sullivan, [446 U.S. 335 (1980)], instead of
that articulated in Strickland. To establish that a
conflict of interest resulted in ineffective
assistance, more than a mere possibility of a conflict
must be shown. The petitioner must show (1) that his
lawyer was under an actual conflict of interest and
(2) that this conflict adversely affected his lawyer's
performance. If the petitioner can show an actual
conflict, and that it adversely affected his lawyer's
performance, prejudice is presumed and there is no
need to demonstrate a reasonable probability that, but
for the lawyer's conflict of interest, the trial or
sentencing outcome would have been different. [A]n
adverse effect is not presumed from the existence of
an actual conflict of interest.
United States v. Nicholson, 475 F.3d 241, 248-249 (4th Cir.
2007) (internal quotation marks, alterations, and citations
omitted).
“The question whether a conflict of interest impermissibly
tainted an attorney's performance is a mixed question of law and
fact . . . that calls for ‘the application of legal principles
to the historical facts of [a given] case.’” Familia-Consoro v.
United States, 160 F.3d 761, 764 (1st Cir. 1998) (quoting
Cuyler, 446 U.S. at 342). Nevertheless, the state habeas
court’s findings of those historical facts are entitled to the
statutory presumption of correctness, Freund v. Butterworth,
165
F.3d 839, 862 (11th Cir. 1999), which Ivey has again failed to
overcome by clear and convincing evidence. Ivey has done little
12
more than point to Culler’s letter, already determined by the
state habeas court not to have created a conflict of interest
because its contents were inaccurate. On that basis, Ivey has
fallen far short of rebutting by clear and convincing evidence
the state court’s determination that Culler had no personal
relationship with Harrison, and therefore no actual conflict of
interest. The state habeas court’s determination was thus not
“an unreasonable determination of the facts in light of the
evidence presented.” Accordingly, we find no error in the
district court’s denial of Ivey’s petition on ground of conflict
of interest by Culler.
C.
Ivey further contends that Savitz’s failure to challenge
the admission of Neumon’s prior testimony on Confrontation
Clause grounds constituted ineffective assistance of appellate
counsel. Because this issue was considered during Ivey’s state
habeas review, it “was adjudicated on the merits in State court
proceedings” for the purposes of § 2254(d).
. . . . Th[e] right to effective assistance of
counsel extends to require such assistance on direct
appeal of a criminal conviction.
In order to establish a claim that appellate
counsel was ineffective for failing to pursue a claim
on direct appeal, the applicant must normally
demonstrate (1) that his counsel’s representation fell
below an objective standard of reasonableness in light
of the prevailing professional norms, and (2) that
13
there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.
In applying this test to claims of ineffective
assistance of counsel on appeal, however, reviewing
courts must accord appellate counsel the presumption
that he decided which issues were most likely to
afford relief on appeal. Counsel is not obligated to
assert all nonfrivolous issues on appeal, as there can
hardly be any question about the importance of having
the appellate advocate examine the record with a view
to selecting the most promising issues for review.
Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (internal
quotation marks, alterations, and citations omitted).
The state habeas court determined that the Confrontation
Clause jurisprudence flowing from Ohio v. Roberts, 448 U.S. 56
(1980), applicable at the time of Ivey’s appeal, 4 would not have
barred the use of Neumon’s prior testimony. For that reason,
the state court concluded that Ivey could not meet the second
prong of the ineffectiveness analysis because the results of his
direct appeal would not have been different even if Savitz had
raised the issue. 5
4
The state court correctly noted that Crawford v.
Washington, 541 U.S. 36 (2004), does not apply retroactively and
was not applicable during the Montgomery trial. See Whorton v.
Bockting,
549 U.S. 406, ___,
127 S. Ct. 1173, 1184 (2007).
5
The state habeas court also found that the Confrontation
Clause issue had not been preserved for appeal as a matter of
state law. Because we dispose of this issue under 28 U.S.C.
2254(d)(1), we need not consider the state’s argument that Ivey
procedurally defaulted habeas review of this claim.
14
In Roberts, the Supreme Court stated that the Confrontation
Clause was not offended when the prior testimony of an
unavailable witness was admitted with “indicia of reliability”
allowing the fact-finder to evaluate the truth of the prior
statement. 448 U.S. at 65-66. The Supreme Court ultimately
held that where “there was an adequate opportunity to cross-
examine [the witness], and counsel . . . availed himself of that
opportunity, the transcript . . . bore sufficient indicia of
reliability and afforded the trier of fact a satisfactory basis
for evaluating the truth of the prior statement.” Id. at 73
(internal quotation marks omitted). Roberts therefore did not
bar Neumon’s prior testimony from the Harrison trial, where
Neumon had been available for and subjected to cross-examination
by Ivey in that proceeding. 6 7
Consequently, Ivey’s claim does
not meet the requirements of § 2254(d)(1).
6
The fact that Ivey had different counsel in the Harrison
trial is immaterial. See id. at 72 (“Nor does it matter that .
. . respondent had a different lawyer . . . . Indeed, if we
were to accept this suggestion . . . a defendant could” evade
the rule merely by changing counsel.).
7
The Roberts Court also stated that “[r]eliability can be
inferred without more in a case where the evidence falls within
a firmly rooted hearsay exception.” Id. at 66. Clinging to
this statement, Ivey argues that Neumon’s testimony was
improperly admitted based on state evidentiary rules proscribing
hearsay. Because our review is limited to “clearly established
Federal law” and because Roberts supports the use of Neumon’s
testimony, we do not consider this argument.
15
The state court’s determination that Savitz was not
ineffective because the outcome of Ivey’s direct appeal would
not have been different had Savitz raised the issue was not “a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law.” Thus, we find
no error in the district court’s denial of Ivey’s petition on
this ground.
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
16
