RUSSELL, Circuit Judge:
In the early morning hours of April 12, 1978, cousins
John Arnold and John Plath, who were in their early twenties, along with
their respective eleven-year-old and seventeen-year-old girlfriends,
Carol Ullman and Cindy Sheets, borrowed a friend's car and went looking
for wild mushrooms.
During their search they encountered farm worker
Betty Gardner as she walked along the side of the road. Gardner
hitchhiked a ride with the two couples, who took her to her brother's
home. Gardner then asked if the group would take her to work, but they
refused and drove off. However, testimony indicated Arnold suggested
they go back and kill Gardner because he"didn't like niggers." They then
went back, picked Gardner up, and took her to a remote wooded area near
a garbage dump.
When Gardner attempted to leave, Arnold told her that
she was not going anywhere, kicked her in the side, and knocked her down.
Gardner was alternately sexually assaulted, urinated on, stomped, beaten
with a belt, hit with a jagged bottle, stabbed with a knife, and choked
with a garden hose. All four persons at one time or another participated
in physically assaulting Gardner.
Testimony also indicated Arnold dragged Gardner into
the woods to complete her murder, which he did by strangling her with
the garden hose, getting leverage by putting his foot on her neck.
Arnold then carved "KKK" into Gardner's body in an attempt to mislead
law enforcement. As it turned out, Gardner's body was not found until
Sheets' involvement came to light and she provided law enforcement with
the location of Gardner's decomposed remains.
Arnold and Plath were indicted in the Beaufort County
Court of General Sessions on charges of murder and kidnapping. After a
jury trial, they were convicted on February 6, 1979. Both defendants
were sentenced to death by electrocution.
Arnold appealed to the South Carolina Supreme Court
which affirmed his conviction, but remanded the case for resentencing
because of improper prosecutorial argument.
At the resentencing trial, the new jury found Arnold
guilty of committing the murder while in the commission of kidnapping
and recommended the death penalty. In January 1984, the South Carolina
Supreme Court affirmed Arnold's death sentence.
The United States Supreme Court subsequently denied
Arnold's petition for writ of certiorari, with two Justices dissenting
based on Arnold's Sixth Amendment claim regarding the jury view of the
Arnold filed an application for post-conviction
relief in the Beaufort County Court of Common Pleas in November, 1984.
An evidentiary hearing resulted in an order denying his application.
Arnold then filed a petition for writ of certiorari to the South
Carolina Supreme Court, which the court denied.
In 1988, however, the United States Supreme Court
granted a writ of certiorari and remanded the case to the Beaufort
County Court of Common Pleas for reconsideration on the issue of the
trial court's implied malice instruction.
On remand, the court denied the application for post-conviction
relief, holding that the malice instruction did not include an
impermissible presumption, or alternatively, any error was harmless.
Arnold made a number of subsequent motions to amend his application
which, following another hearing in 1990, the court denied as meritless
or untimely. Arnold appealed the denial of post-conviction relief to the
South Carolina Supreme Court. The court concluded that under United
States Supreme Court precedent the implied malice instruction was
The United States Supreme Court denied another
petition for writ of certiorari in 1993.
On August 31, 1993, Arnold presented a petition for
writ of habeas corpus by a person in state custody in the United States
District Court for the District of South Carolina. The United States
Magistrate Judge, after hearing oral arguments on the petition and all
intervening motions, recommended the district court deny the petition.
After objections, the United States District Judge entered an order,
filed September 29, 1995, adopting the findings of the magistrate and
granting the State's motion for summary judgment. Arnold appeals.