Filed: Apr. 03, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-6172 LUTHER JAMES FORD, Petitioner – Appellant, v. WARDEN ROBERT M. STEVENSON, III, Broad River Correctional Institution, Respondent – Appellee, and SOUTH CAROLINA, STATE OF, Respondent. Appeal from the United States District Court for the District of South Carolina, at Aiken. David C. Norton, District Judge. (1:11-cv-00775-DCN) Argued: January 29, 2013 Decided: April 3, 2013 Before TRAXLER, Chief Judge, and GREGORY and SHE
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-6172 LUTHER JAMES FORD, Petitioner – Appellant, v. WARDEN ROBERT M. STEVENSON, III, Broad River Correctional Institution, Respondent – Appellee, and SOUTH CAROLINA, STATE OF, Respondent. Appeal from the United States District Court for the District of South Carolina, at Aiken. David C. Norton, District Judge. (1:11-cv-00775-DCN) Argued: January 29, 2013 Decided: April 3, 2013 Before TRAXLER, Chief Judge, and GREGORY and SHED..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6172
LUTHER JAMES FORD,
Petitioner – Appellant,
v.
WARDEN ROBERT M. STEVENSON, III, Broad River Correctional
Institution,
Respondent – Appellee,
and
SOUTH CAROLINA, STATE OF,
Respondent.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. David C. Norton, District Judge.
(1:11-cv-00775-DCN)
Argued: January 29, 2013 Decided: April 3, 2013
Before TRAXLER, Chief Judge, and GREGORY and SHEDD, Circuit
Judges.
Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Chief Judge Traxler and Judge Gregory joined.
ARGUED: Katie A. Croghan, UGA APPELLATE LITIGATION CLINIC,
Athens, Georgia, for Appellant. James Anthony Mabry, OFFICE OF
THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South
Carolina, for Appellee. ON BRIEF: Peter B. Rutledge, Rory A.
Weeks, UGA APPELLATE LITIGATION CLINIC, Athens, Georgia, for
Appellant. Alan Wilson, Attorney General, John W. McIntosh,
Deputy Attorney General, Donald J. Zelenka, Senior Assistant
Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH
CAROLINA, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
SHEDD, Circuit Judge:
Luther James Ford appeals the dismissal of his 28 U.S.C.
§ 2254 petition, contending that his attorney was
constitutionally ineffective in advising him to plead guilty to
voluntary manslaughter. We agree with the district court that
Ford’s claim is without merit and, accordingly, affirm.
I.
On November 26, 2006, Luther James Ford spent the day with
his girlfriend, Patricia Thompson, eventually returning that
evening to Thompson’s home in Bennettsville, South Carolina. 1
Both had been consuming alcohol that day and, at some point,
began arguing. Ford retrieved a knife and stabbed Thompson 39
times, killing her. Ford then rode a bicycle to a nearby house
where he told two individuals that he “killed” Thompson or
“thought he had killed her.” (J.A. 47). Thompson was
discovered by police sprawled on her bed with her arms in a
defensive posture.
Ford was arrested the following day and subsequently
indicted for murder. The State then served Ford with notice
that it was seeking a sentence of life without parole (LWOP)
because he had a 1979 conviction for voluntary manslaughter.
1
Ford and Thompson had previously lived together, but
Thompson had moved out several months earlier because Ford had
cut her face.
3
Under South Carolina’s “Two Strikes/Three Strikes” statute, a
conviction for voluntary manslaughter is considered a “most
serious offense.” Two convictions for a “most serious offense”
require a sentence of LWOP. S.C. Code Ann. § 17-25-45(A).
Prior to trial, the State offered to let Ford plead guilty to
voluntary manslaughter and receive a mandatory LWOP.
Ultimately, Ford pled guilty to voluntary manslaughter.
During the plea colloquy, Ford admitted that he killed Thompson
and did not dispute the State’s summary of the killing. The
trial judge noted that a competency exam found Ford competent to
stand trial and explained the mandatory LWOP sentence he was
facing if he pled guilty. During the plea hearing, the
following exchange took place:
THE COURT: Are you entering this plea of your own free
will and accord?
MR. FORD: In a way.
THE COURT: All right. If you don’t mind explain that
to me. Is anybody forcing you to do this?
MR. FORD: No, sir.
THE COURT: Okay, anybody intimidating you or anybody
promised you anything?
MR. FORD: No, sir.
THE COURT: If it’s any problem, now, tell me about it
now.
MR. FORD: No, no problem.
(J.A. 45).
4
Thereafter, the trial judge found that Ford’s plea was
voluntary and accepted it. Ford, through his counsel, Daniel
Blake, apologized to Thompson’s family. Blake also informed the
trial judge that he had investigated the case thoroughly and
explained how they reached the decision to plead guilty:
Luther and I had had numerous discussions during [the
18 months Ford had been imprisoned prior to the plea].
Always the question was whether or not to go to trial
understanding that the end result of loosing [sic] a
trial would be the same as it would be today. . . .
And I believe, really, because of the prior
convictions, it’s a mandatory sentence.
(J.A. 48-49). The trial judge then imposed the LWOP sentence.
Thereafter, Ford filed a pro se application for post-
conviction relief (PCR) in the Marlboro County Circuit Court.
Relevant here, Ford claimed that his counsel was ineffective
because he failed to inform Ford that, had Ford gone to trial,
he could have requested and possibly received an instruction for
the lesser included offenses of voluntary and involuntary
manslaughter (the involuntary manslaughter claim). A conviction
for involuntary manslaughter would not have carried the
mandatory LWOP sentence under South Carolina’s recidivist
statute.
The PCR Court held an evidentiary hearing on Ford’s
application. During the hearing, Ford testified that his guilty
plea was not knowing and voluntary because he “didn’t understand
that” he was in court to plead guilty and thought he was in
5
court that day for his trial. (J.A. 68). Ford testified that
he “understood” some of the plea process, that “he say I could
have went to trial and got a lesser sentence.” (J.A. 66). Ford
testified that, on the day he pled guilty, Blake “took me back
in the room and he shut the door,” and told Ford to “sign” a
“paper.” (J.A. 65). Ford testified that he did not know he was
signing a guilty plea. On cross-examination, Ford testified
that he “kept telling [Blake] I wanted a trial. He kept telling
me that he didn’t think I could stand a trial.” (J.A. 69).
Ford reiterated that he did not know he was in court to plead
guilty and that, when he figured that out, “I tried to say
something and my voice went away.” (J.A. 70).
Contrary to Ford’s testimony, Blake testified that he
talked “extensively” with Ford from November 2006 through April
2008 when Ford pled guilty. (J.A. 72). Blake stated that Ford
decided to plead guilty because “he was literally embarrassed.
He didn’t want to go to trial due to his embarrassment.” (J.A.
72). Blake recounted that at one point Ford said he just wanted
the death penalty, and that he vacillated between whether to
plead and just be done with the process or to fight at trial.
Blake said that Ford knew that a conviction would carry at least
LWOP and that the State’s case was strong because Ford had told
one witness that he had killed Thompson and told another witness
that he thought he had killed her. Blake also testified that he
6
spoke with family members about the decision to plead guilty and
that Ford knew that he was in court to plead guilty and that the
decision had been made “in the weeks and months before.” (J.A.
74). Blake further testified that Ford had been found competent
to stand trial and fully understood how strong the State’s case
against him was. In Blake’s view, “I don’t see how we could
have won the case.” (J.A. 77). Although Ford’s PCR application
accused Blake of ineffective assistance for failing to inform
him of the possibility of an involuntary manslaughter
instruction at trial, neither Ford nor Blake was questioned or
provided testimony on this point.
The PCR Court denied Ford’s application. The PCR Court
found Ford’s testimony “not credible,” and found Blake’s
testimony “credible.” (J.A. 85). The PCR Court likewise found
Blake “conducted a proper investigation,” “adequately conferred”
with Ford, and was “thoroughly competent.” (J.A. 85). The PCR
Court found that Ford’s plea was knowing and voluntary and that
Ford knew he would receive an LWOP sentence if he pled guilty.
The PCR Court found that Blake informed Ford of the consequences
of a plea and “specifically finds credible plea counsel’s
testimony that they had discussed this very issue.” (J.A. 86).
The PCR order does not specifically discuss the
availability of the involuntary manslaughter instruction if Ford
had gone to trial. However, the order does provide that “any
7
and all allegations that were raised in the application or at
the hearing . . . and not specifically addressed in this Order,”
were “waived” and Ford “failed to meet his burden of proof” on
those allegations because Ford failed to present evidence
supporting them. 2 (J.A. 87). Ford appealed the PCR Court’s
denial of his application to the South Carolina Supreme Court,
raising the involuntary manslaughter claim. The South Carolina
Supreme Court denied certiorari on all of Ford’s claims.
Ford next filed a pro se petition for habeas corpus under
28 U.S.C. § 2254 in the District of South Carolina. Ford’s
petition raised four claims, including the involuntary
manslaughter claim. After the State moved for summary judgment,
the petition was referred to a magistrate judge, who issued a
Report and Recommendation, recommending the grant of summary
judgment to the State. The magistrate judge concluded that Ford
was not procedurally barred from bringing the involuntary
2
Contrary to Ford’s argument, this resolution clearly
counts as an “adjudication on the merits in State court” of
Ford’s claim under 28 U.S.C. § 2254(d). See Johnson v.
Williams, -- S.Ct. --, 2013 WL 610199, *7 (2013) (noting
presumption that “the federal claim was adjudicated on the
merits” when the claim is “reject[ed]” without being expressly
addressed); Harrington v. Richter,
131 S. Ct. 770, 784-85 (2011)
(“When a federal claim has been presented to a state court and
the state court has denied relief, it may be presumed that the
state court adjudicated the claim on the merits in the absence
of any indication or state-law procedural principles to the
contrary.”).
8
manslaughter claim, but that the claim failed on the merits
because Ford would not have been entitled to an involuntary
manslaughter charge under South Carolina law. The district
court, conducting a de novo review, adopted the Report. This
court granted Ford a certificate of appealability on the
involuntary manslaughter claim, and we now affirm.
II.
“We review de novo the district court’s decision to deny
[Ford’s] § 2254 petition based on the record before the [state
court], applying the same standards as did the district court.”
Golphin v. Branker, 519 F.3d 168, 178 (4th Cir. 2008).
“Pursuant to the Antiterrorism and Effective Death Penalty Act
of 1996 (‘AEDPA’), the scope of our review in cases on
collateral review from a state court proceeding that adjudicated
a claim on the merits is both deferential and highly
constrained.” Id. That is, under § 2254, federal habeas relief
may not be granted unless a petitioner shows that the earlier
state court’s decision “was contrary to” clearly established
federal law, § 2254(d)(1); or that it “involved an unreasonable
application of” such law, § 2254(d)(1); or that it “was based on
an unreasonable determination of the facts” in light of the
record before the state court, § 2254(d)(2). In cases alleging
ineffective assistance of counsel, the Supreme Court recently
reminded lower courts that, even without § 2254’s deference, the
9
Strickland v. Washington, 466 U.S. 668 (1984), standard “is a
most deferential one.” Harrington v. Richter,
131 S. Ct. 770,
788 (2011). Moreover, “[w]hen combined with the extra layer of
deference that § 2254 provides, the result is double deference
and the question becomes whether ‘there is any reasonable
argument that counsel satisfied Strickland’s deferential
standard.’” Johnson v. Sec’y, DOC,
643 F.3d 907, 910-11 (11th
Cir. 2011) (quoting Harrington, 131 S.Ct. at 788).
Indisputably, “[d]ouble deference is doubly difficult for a
petitioner to overcome, and it will be a rare case in which an
ineffective assistance of counsel claim that was denied on the
merits in state court is found to merit relief in a federal
habeas proceeding.” Id. at 911.
On appeal, Ford argues that Blake was ineffective for
failing to advise him that, had Ford gone to trial, he was
“likely entitled” to an involuntary manslaughter charge.
(Appellant’s Br. at 26). “To prevail on a claim of ineffective
assistance of counsel, a petitioner ordinarily must satisfy both
parts of the two-part [Strickland] test,” Richardson v. Branker,
668 F.3d 128, 139 (4th Cir. 2012), by showing that “counsel’s
representation fell below an objective standard of
reasonableness,” Strickland, 466 U.S. at 688, and that “there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,”
10
Strickland, 466 U.S. at 694. If Ford fails to make this showing
on either prong, our inquiry ends. Strickland, 466 U.S. at 697
(noting “there is no reason for a court deciding an ineffective
assistance claim . . . to address both components of the inquiry
if the defendant makes an insufficient showing on one”).
In South Carolina, “[i]nvoluntary manslaughter is the
killing of another without malice and unintentionally while
engaged in either: (1) an unlawful act not amounting to a felony
and not naturally tending to cause death or great bodily harm;
or (2) a lawful act with reckless disregard for the safety of
others.” State v. Reese, 633 S.E.2d 898, 900 (S.C. 2006). It
is “a lesser included offense of murder only if there is
evidence the killing was unintentional.” Tisdale v. State,
662
S.E.2d 410, 412 (S.C. 2008). “If there is any evidence
warranting a charge on involuntary manslaughter, then the charge
must be given.” Reese, 633 S.E.2d at 900.
Ford contends that there is evidence in the record
supporting his claim that Thompson’s death was unintentional and
was the result of engaging in a lawful act with reckless
disregard for the safety of others. He relies primarily on
three cases—State v. Light, 664 S.E.2d 465 (S.C. 2008), State v.
Crosby,
584 S.E.2d 110 (S.C. 2003), and State v. Burriss,
513
S.E.2d 104 (S.C. 1999). In each case, the defendant shot and
killed someone with a handgun. Moreover, each defendant
11
testified that he did not mean to shoot the gun—either because
it went off during a struggle (Light), while the defendant was
getting up off the ground (Burriss), or accidentally while the
defendant’s eyes were closed (Crosby). Analogizing to these
cases, Ford argues that there is no evidence he intentionally
wielded the knife, and that in his habeas petition he alleges
that Thompson drew the knife on him. Ford also points to
evidence that he told one witness that he was not sure if he had
killed Thompson and that he and Thompson had been drinking on
the day of the murder.
Even assuming this “evidence” was properly before the PCR
court, 3 Ford was not prejudiced by Blake’s alleged failure to
inform Ford that he could pursue an involuntary manslaughter
charge at trial because he was not entitled to an involuntary
manslaughter charge. First, none of this evidence suggests that
Thompson’s death was accidental or unintentional. Instead, the
record evidence indicates that Ford was drinking on the day of
the murder and that he spoke to two people after killing
Thompson. In addition, when Thompson’s body was discovered, her
hands were raised in a defensive posture. In South Carolina,
“voluntary intoxication . . . is never an excuse for or defense
3
Ford’s suggestion that Thompson held the knife first does
not appear in his state court filings and was not introduced
during the PCR hearing.
12
to crime,” State v. Vaughn, 232 S.E.2d 328, 330 (S.C. 1977),
and, in cases of murder, “[v]oluntary intoxication does not
impair a person’s ability to act with malice aforethought so as
to reduce murder to voluntary manslaughter.” State v. Davis,
298 S.E.2d 778 (S.C. 1983). Thus, Ford’s voluntary drinking is
not evidence supporting a voluntary manslaughter charge, yet
alone a charge of involuntary manslaughter. Regarding Ford’s
confessions, he told one witness that he had killed Thompson and
another that he “thought” he had killed her. Neither statement
suggests that Thompson’s death was accidental. In addition to
this record evidence, in his habeas petition Ford suggests that
Thompson had the knife first. This “evidence” again does not
suggest that Ford accidentally stabbed Thompson.
Moreover, missing from Ford’s “evidence” is any assertion
that, at the time Ford entered his guilty plea, he had told
Blake that the stabbing was unintentional or accidental, or
provided Blake with any information that would have suggested
Thompson’s death was involuntary manslaughter. At the PCR
hearing, Blake testified only that Ford told Blake, after Ford’s
memory returned, that he remembered stabbing Thompson. This
admission, coupled with Ford’s confession to two witnesses and
13
the physical evidence do not suggest the crime of involuntary
manslaughter. 4
Second, Ford’s argument is legally unsound. In each case
Ford relies upon, a single gunshot was fired during a struggle
or altercation, raising at least a plausible inference that the
firearm was not intentionally wielded. In contrast, the South
Carolina Supreme Court has held that involuntary manslaughter
charges are not available in cases where defendants
intentionally wielded a weapon but claimed to be aiming at
something else. See State v. Cooney, 463 S.E.2d 597, 600 (S.C.
1995) (no involuntary manslaughter charge “when the defendant
admitted intentionally firing the gun, but claimed he only meant
to shoot over the victim’s head”); Harris v. State,
581 S.E.2d
154, 156 (S.C. 2003) (no error in failing to charge involuntary
manslaughter where defendant claimed he was only firing warning
shots); Douglas v. State, 504 S.E.2d. 307, 310 (S.C. 1998)
(same); State v. Smith,
446 S.E.2d 411, 412-13 (S.C. 1994) (no
error in failing to charge involuntary manslaughter when
defendant was intentionally wielding a knife but did not mean to
harm the victim). In addition, the “any evidence” standard Ford
cites does not require a charge on a lesser-included offense
4
In fact, there is no evidence that Ford has ever asserted
to anyone that Thompson’s death was unintentional or accidental.
14
unless the “evidence presented” would “allow a rational
inference the defendant was guilty only of the lesser offense.”
State v. Geiger, 635 S.E.2d 669, 673 (S.C. Ct. App. 2006). See
also State v. Gilmore,
719 S.E.2d 688, 693 (S.C. Ct. App. 2011)
(noting when the evidence supporting the lesser-included offense
is circumstantial, an instruction is warranted if the evidence
would “permit a reasonable inference that the defendant is
guilty only of the lesser crime”). Thus, “it is not error to
refuse to submit a lesser included offense unless there is
testimony tending to show that the defendant is only guilty of
the lesser offense.” State v. Funchess,
229 S.E.2d 331, 332
(S.C. 1976) (emphasis in original); Suber v. State,
640 S.E.2d
884, 886-87 (S.C. 2007) (finding evidence was “insufficient” to
support claim that defendant was guilty only of lesser included
offense because evidence suggested only that defendant may have
been not guilty of the greater offense).
In this case, even taking Ford’s “evidence” at face value,
he stabbed Thompson 39 times. The line of cases for
“accidental” or “unintentional” discharge of a firearm do not
suggest that an involuntary manslaughter charge would be
required in such circumstances. Instead, it seems clear as a
matter of law that, when a defendant stabs a victim 39 times,
the wielding of the knife was intentional. Put another way,
stabbing someone 39 times, without more, precludes the “rational
15
inference” that the knife was unintentionally wielded. Indeed,
we have been unable to find any case in which a victim was
stabbed more than one time and an involuntary manslaughter
charge was required. See, e.g., Commonwealth v. Burgess, 879
N.E.2d 63, 78-79 (Mass. 2008) (no error in failing to instruct
on involuntary manslaughter where victim had two deep stab
wounds); State v. Mason,
272 S.W.3d 257, 260-62 (Mo. Ct. App.
2008) (four stab wounds); State v. Carey,
558 S.E.2d 650, 662
(W.Va. 2001) (“There is simply no credible argument that a death
which results from the brutal delivery of three fatal stab
wounds . . . is accidental”); Ohio v. Campbell,
630 N.E.2d 339,
349-50 (Ohio 1994) (upholding trial court’s refusal to give
involuntary manslaughter instruction when evidence showed four
separate stab wounds in vital areas).
Because Ford would not have been entitled to an involuntary
manslaughter charge had he gone to trial, the PCR court did not
unreasonably apply Strickland in denying Ford’s petition.
Savino v. Murray, 82 F.3d 593, 599 (4th Cir. 1996) (“However, if
there exists no reasonable probability that a possible defense
would have succeeded at trial, the alleged error of failing to
disclose or pursue it cannot be prejudicial.”).
16
III.
For the foregoing reasons, the district court’s denial of
Ford’s § 2254 petition is affirmed.
AFFIRMED
17
