In the afternoon of November 21, 1987, Susan Babich parked her car
in the rear lot of the Charles Towne Square Shopping Mall in
Charleston, South Carolina.
After shopping at the mall, she returned to her car. Before she
could drive away, however, she was approached by Green, who advanced
rifle in hand. Green then shot Ms. Babich in the head, stole her
pocketbook, and fled the scene in another car.
Based on a description from an eyewitness, the police soon
apprehended Green in the vicinity of the mall.
The police found the
rifle and Ms. Babich's checkbook in Green's car, and Green
ultimately gave a statement admitting to his involvement in these
State v. Green, 301 S.C. 347, 392 S.E.2d 157 (1990) (Direct
Green v. South Carolina, 498 U.S. 881 (1990) (Cert. Denied).
Green v. Catoe, 220 F.3d 220 (4th Cir. 2000) (Habeas).
Green v. South Carolina, 121 S.Ct. 2002 (2001) (Cert. Denied).
Green chose not to give a final statement before his execution.
The South Carolina Supreme Court voted 4-1 to let
Anthony Green's death sentence stand. Green was convicted of
shooting a woman in the head with a rifle in the parking lot of the
Charles Towne Shopping Mall in November 1987 and taking her purse.
The Court has set an Aug. 23 execution date Green.
Green has exhausted all of his appeals. Susan Babich was shot
moments after she parked her car at the Charles Town Square Mall in
Based on an eyewitness's description, police
apprehended Green in the mall vicinity within thirty minutes. They
found a rifle and Susan's checkbook in his car. He told police he
killed Susan Babich because she saw him sneaking up on her.
Anthony Green was put to death Friday
evening for the killing of a Naval wife and mother out shopping at a
mall 15 years ago. On Thursday, Gov. Jim Hodges denied requests from
Green's attorneys and humanitarian groups to halt the execution.
state Supreme Court had earlier denied Green's call to stop the
execution and the 4th U.S. Circuit Court of Appeals denied his
appeal Thursday afternoon. The U.S. Supreme Court, Green's last
chance for a stay, refused to block Green's execution Friday
afternoon. Green died by lethal injection at 6:18 p.m., a prisons
Green, 37, had been on death row since 1988 for
the murder of 36-year-old Susan Barbara Babich of Hanahan. "Because
of the act of one selfish individual, our family's perspective on
society, as well as how we approach everyday activities, has been
forever changed," the Babich family wrote in a statement forwarded
by her brother Daniel Merton.
No one from Babich's or Green's families was
present for the execution. The Babich family thanked the jurors on
Green's case and the South Carolina justice system. The Babich
family's statement said they chose not to attend Friday "for it will
serve no purpose in our lives. We seek not mere revenge but what the
justice system has deemed necessary and appropriate. Justice has
prevailed," they wrote, "and will be served in our conscious absence."
Man Executed for Killing Woman at Mall
AP August 23, 2002
COLUMBIA, South Carolina (AP) -- A man was
executed Friday for shooting a woman in the head with a rifle in a
shopping mall parking lot 15 years ago. Anthony Green was sentenced
to death in 1988 for the murder of 36-year-old Susan Barbara Babich,
a mother of two. He was put to death by injection.
Babich was mugged and shot moments after she
parked her car at a Charleston mall in November 1987. Green was
arrested about a half-hour later with a rifle and Babich's checkbook
in his car. He told police he shot Babich because she saw him
sneaking up on her.
Green, 37, chose not to issue a statement before
his execution. Nobody from Babich's or Green's families was among
the eight witness in gallery. "Because of the act of one selfish
individual, our family's perspective on society, as well as how we
approach everyday activities, has been forever changed," the Babich
family wrote in a statement.
Green is the 27th person executed since South
Carolina reinstated the death penalty in 1977 and the second this
Convicted Murderer Executed
By Web Producer:
WFMY - Associated Press
Columbia, SC - Anthony Green was put to death
Friday evening for the killing of a Naval wife and mother out
shopping at a mall 15 years ago.
On Thursday, Gov. Jim Hodges denied requests from
Green's attorneys and humanitarian groups to halt the execution. The
state Supreme Court had earlier denied Green's call to stop the
execution and the 4th U.S. Circuit Court of Appeals denied his
appeal Thursday afternoon. The U.S. Supreme Court, Green's last
chance for a stay, refused to block Green's execution Friday
Green died by lethal injection at 6:18 p.m., a
prisons official said. No protesters were seen outside the prisons
complex where executions are held. Green is the 27th person executed
since South Carolina reinstated the Death Penalty in 1977 and the
second this year.
Green, 37, had been on death row since 1988 for
the murder of 36-year-old Susan Barbara Babich of Hanahan. She was
robbed and shot in the head with a rifle moments after she parked
her car at The Charles Towne Mall in November 1987. Green was
arrested about a half-hour later with a rifle and Babich's checkbook
in his car. He told police he shot the woman because she saw him
sneaking up on her.
"Because of the act of one selfish individual,
our family's perspective on society, as well as how we approach
everyday activities, has been forever changed," the Babich family
wrote in a statement forwarded by her brother Daniel Merton. Green
did not issue a statement before his sentence was carried out. No
one from Babich's or Green's families attended for the execution.
Green's attorney Teresa Norris was present and
flipped through a Bible before the maroon curtain to the death
chamber was opened. As the lethal chemicals were administered,
Green's mouth shut tight and his chest rose and fell with steady
breaths. His breathing soon became rushed and his head jerked
slightly to the left. Norris clutched her Bible as Green lay dying.
The Babich family thanked the jurors on Green's
case and the South Carolina justice system. The Babich family's
statement said they chose not to attend Friday "for it will serve no
purpose in our lives. We seek not mere revenge but what the justice
system has deemed necessary and appropriate. "Justice has prevailed,"
they wrote, "and will be served in our conscious absence."
Opponents of the death penalty argued that
Green's execution showed the racial bias in sentencing in South
Carolina. Green is black, Babich was white. During his time as a
solicitor, now-state Attorney General Charlie Condon sought death
sentences in 40 percent of his cases of black-on-white homicide, the
South Carolina Coalition to Abolish the Death Penalty said. Condon
only sought death, the coalition said, in 2.9 percent of cases in
which the victim and defendant were black.
In July, the Inter-American Commission on Human
Rights asked South Carolina not to execute Green while it studied
whether putting him to death would violate his human rights. The
group said if Green were to die at the state's hand before "an
opportunity to examine his case, any eventual decision would be
rendered moot ... and he would suffer irreparable damage." Condon
has said the brutality of Green's crime spoke for itself.
Execution date set for man convicted in shooting
Anthony Green sentenced to die August 23 for slaying
Jeffrey Collins, Associated Press.
The Greenville News, July 27, 2002
COLUMBIA – The state Supreme Court has set an Aug.
23 execution date for a man convicted of shooting a woman in the
head with a rifle during a robbery in the parking lot of a
Charleston mall 15 years ago. Anthony Green has exhausted all of his
His lawyer, John Blume, said Green decided
against seeking clemency when Gov. Jim Hodges failed to stop the
execution of Richard Charles Johnson in May. “If they weren’t going
to give it to Richard Johnson when he white and had proof of his
innocence, he (Green) figures the governor is certainly not going to
give clemency to a black man who admitted to having a role in the
shooting,” Blume said.
Susan Babich was shot moments after she parked
her car at the Charles Town Square Mall in November 1987. Green was
arrested a half-hour later with a rifle and Babich’s checkbook in
his car. He told police he killed Babich because when saw him
sneaking up on her.
If Green is executed, he would be the 27th man
put to death since South Carolina reinstated the death penalty in
1974 and the second executed this year.
Blume has asked an international human rights
organization to review whether state Attorney General Charlie Condon,
who sent Green to death row as a local prosecutor in Charleston
County, is racially biased. Condon was 20 times more likely to seek
the death penalty when a black defendant was accused of killing a
white victim than when the victim and suspect were black Blume said.
If the Inter-American Commission on Human Rights rules Green’s human
rights were violated, Blume said he will present the finding to the
state Supreme Court and ask for a new trial.
Condon’s spokesman, Robb McBurney, said Green’s
appeal to the international organization shows his lawyers are
desperate to find anyone who will agree with them. “They have
brought this complaint about General Condon up at just about every
level in the appeals process, and it has been rejected every time,”
McBurney said. “They just can’t find any judges that will agree with
The state Supreme Court ruled 4-1 in May to let
Green’s execution move forward despite defense arguments that a
racially biased juror was allowed into the jury pool. The justices
said Green’s rights weren’t violated because the juror wasn’t picked
to hear the trial. But in a spirited dissent, Associate Justice
Costa Pleicones said that decision broke the high court’s rulings in
S.C. to Execute Man Today for 1987 Slaying
Rick Brundrett - TheState.com
August 23, 2002
The state plans today to execute a man convicted
of killing and robbing a mother of two at a Charleston mall 15 years
ago. Barring a reprieve, Anthony Green will die by lethal injection
at 6 p.m. at the state Department of Corrections' Capital Punishment
Facility off Broad River Road in Columbia.
Gov. Jim Hodges and the U.S. 4th Circuit Court of
Appeals on Thursday declined to stop the execution. Green's last
chance is with the U.S. Supreme Court. Green, 37, would be the
second person executed this year in South Carolina and the 27th to
die since 1977, when legislators restored the death penalty. Richard
Charles Johnson was executed May 3.
Green was sentenced to death in 1988 for fatally
shooting Susan Babich with a rifle on Nov. 21, 1987, in the Charles
Towne Square Mall parking lot. After he killed her, the jury ruled,
he stole her purse. Her husband was in the Navy. They had two
children. "We are relieved that the decision to put this individual
to death made by the jury so many years ago will finally be honored
this week," Babich's relatives wrote to The State.
Green was tried by Charlie Condon, now South
Carolina's attorney general. Death penalty opponents say that when
Condon was Charleston's solicitor, he targeted blacks who had been
charged with killing whites for the death penalty. Condon, the
prosecutor from 1981 to 1992 in Charleston and Berkeley counties,
denies those allegations. "Those statistical arguments they have
been making have been routinely rejected (by the courts). I think my
record speaks for itself."
Of the eight death penalty trials he handled,
three involved a black defendant and a white victim; two other cases
involved a black and a white victim, and a black or white defendant;
and the other three cases were "black-on-black" or "white-on-white"
murders, Condon said Thursday.
Green's lawyers have said Condon
sought the death sentence in 40 percent of "black-on-white"
homicides, compared with only about 3 percent of "black-on-black"
murders. They couldn't be reached Thursday for comment.
appealed his conviction because, his lawyers argued, a judge allowed
a racially biased juror into the jury pool. The state Supreme Court
said Green's rights weren't violated because that person wasn't on
Green's lawyers have tried to postpone the
execution by appealing to the Inter-American Commission on Human
Rights, but Condon said Thursday the organization has no legal
standing in Green's case. Another execution is scheduled for Sept.
13. In that case, the state Supreme Court granted Michael Passaro's
wish to die for burning his 2-year-old daughter to death in Myrtle
Beach in 1998.
Racism in the S.C. Death House
By Wendy Brinker, Guest Columnist.
August 22, 2002
Anthony "Tony" Green is a 38-year-old African-American
man scheduled for execution by the state of South Carolina on Friday.
He was convicted in 1987 for the botched robbery and murder of Susan
Babich in Charleston County. So why should you care what happens to
You should care because at the time of his trial
in 1988, Charlie Condon, the Charleston County solicitor who made
known his preference for an "electric sofa" over an electric chair,
pursued the death penalty in an alarmingly racist manner.
the death penalty in 40 percent of the cases where the defendant was
black and the victim was white, compared to only 2.9 percent of the
cases where the defendant and the victim were both black. Likewise,
his office pursued the death penalty in 32.3 percent of all cases
where the victim was white, but only 5.2 percent when the victim was
In Charleston County, the state was 14 times more
likely to seek the death penalty in a black defendant/white victim
scenario. Such racial bias in the imposition of the death penalty
means that, regardless of the circumstances surrounding Tony's case,
his race and his victim's race were determining factors in the
state's decision to seek death and the jury's willingness to impose
Between 1977 and 1990, 13 of 20 cases in which
Condon sought the death penalty involved minority defendants. It is
implausible that this pattern would emerge if race-neutral criteria
were used to determine when to seek the death penalty. Evidence from
numerous studies demonstrates that racial bias in the imposition of
the death penalty is disturbingly pervasive throughout South
In South Carolina, blacks that kill whites are
sentenced to death at about three times the rate of whites that kill
whites. Even though most murder victims in South Carolina are black,
only a fraction of black victim cases result in death sentences. In
fact, a person charged with killing someone white is eight times
more likely to be sentenced to death than a person charged with
killing a black person.
Senseless, random violence is difficult to
comprehend. Susan Babich was a daughter, sister, wife and mother.
It's hard to imagine the injustice her family must feel. It's hard
to understand what possessed Tony that afternoon. Although he had a
drug problem, people who knew him were shocked. He had no prior
arrests and, by all accounts, was a good, well-mannered kid with an
impressive high school record and stellar basketball skills.
It's understandable for Susan's family to want
revenge for her death, but revenge is not what drives our judicial
system. Everyone, even people suspected of heinous crimes, is equal
and entitled to certain protections under the law. That is how we,
as a society, prevent further injustices from happening. The laws
and rules of due process, as they apply to misdemeanors right up to
capital offenses, must be administered fairly and available to
Race plays a dominant role in the courtrooms
across our state. There are 3,855 black men per 100,000 in prison,
compared to 588 per 100,000 white men. Blacks are admitted to prison
on drug charges at a rate that is 13.4 times greater than that of
whites. And race undeniably plays a factor in the most profound
decision a government can make -- who lives and who dies.
Both the legality and motive for such a practice
demand critical examination. Anthony Green is looking to a federal
court to prohibit his execution while his case is under
consideration by the Inter-American Commission on Human Rights. This
commission has asked the state not to go forward until it can
determine if any international human rights laws, such as race
discrimination in the application of South Carolina's death penalty,
have been violated.
While it may be difficult for us to view Tony
Green as a victim as he awaits execution on Friday, it is not
difficult to see the statistical patterns emerging as we delve into
the race disparities present in capital sentencing. When the system
fails one of us, the system fails us all.
South Carolina Attorney General
High Court Sets Date of Execution Date for
(Columbia, S.C.) Attorney General Charlie Condon
announced today that the South Carolina Supreme Court has issued an
Execution Order for Anthony Green and has set the date of execution
for August 23.
Green was convicted on September 28, 1988 of
murder and armed robbery arising from the November 21, 1987 shooting
of Ms. Susan Babich at the Charles Town Square Mall parking lot. Ms.
Babich, 36 years old at the time, was shot in the head and was
robbed moments after she parked her car.
On October 1, 1988, a jury
recommended a sentence of death for Green. The case was prosecuted
by Condon when he was Solicitor of the Ninth Circuit.
Green has exhausted all state and federal court
appeal remedies. Barring further court intervention, he will be
executed four weeks from today. “Fourteen years have gone by since
Anthony Green was sentenced to death by a jury of his peers for this
brutal slaying,” Condon said. “The victim’s family and friends
deserve closure to this traumatic experience. Justice needs to be
done and the jury’s sentence of death needs to be carried out.”
NCADP National Execution Alert
Richard Johnson - Scheduled Execution Date and
Time: 5/3/02 6:00 PM EST
Anthony Green - Scheduled Execution Date and
Time: 8/23/02 6:00 PM EST.
Anthony Green, a 37-year old black male, is
scheduled to be executed by the State of South Carolina for the
murder of Susan Babich. Green, who is near the end of his appeals,
has appealed to the Inter-American Commission on Human Rights
alleging that South Carolina’s justice system is racially biased.
Green was sentenced to death in Charleston County,
South Carolina in 1988. At this time, statistics show that
prosecutors were 20 times more likely to seek a death sentence
against a black man who murdered a white, than a white who murdered
In his term as Solicitor General, Charlie Condon
sought the death penalty in 40 percent of the cases involving a
black defendant and a white victim, and only 2.9 percent of the time
in which both defendant and victim were white. Green’s lawyers have
also alleged they were denied the right to appeal the fact that
Green’s jury included one person who admitted to racial bias.
Green has not asked his lawyers to seek clemency
from Gov. Hodges after the execution of Richard Johnson earlier this
year. Seeing that the Governor would not grant clemency to a white
man on death row, Green believes he has little chance since he is
black. Please petition Gov. Hodges and ask that the justice system
of South Carolina be examined for racial bias.
Death-row Inmate Says Execution Needs Study
By Herb Frazier - Charleston.net
August 17, 2002
COLUMBIA - Death row inmate Anthony Green asked
the U.S. Supreme Court Friday to stop his Aug. 23 execution while an
international commission studies whether putting him to death would
violate his human rights. Green, who was convicted of killing a
Hanahan woman in 1987, also has asked Gov. Jim Hodges to grant him a
reprieve. That request is pending.
The S.C. Supreme Court on Thursday denied Green's
request for a stay. Executing Green, who is black, could violate
international law because South Carolina is more likely than other
states to seek the death penalty against black people whose victims
were white, said Green's attorney, E. Fielding Pringle of Columbia.
Last month, the Inter-American Commission on Human Rights asked
South Carolina not to execute Green until it can complete its review,
It also asked the U.S. Department of State to respond
in 60 days, she said. If Green were executed "before the commission
has an opportunity to examine his case, any eventual decision would
be rendered moot ... and he would suffer irreparable damage," the
Green, 37, of Charleston, is scheduled to die by
lethal injection for the shooting death of Susan Barbara Babich in
November 1987. If Green is put to death, Babich's relatives said
they do not plan to watch him die. Green was convicted in October
1988 of shooting Babich, 36, in the head and robbing her after she
had been shopping at Charles Towne Square Mall. She had returned to_
her car when Green shot her with a rifle. Green was arrested a
half-hour later with a rifle and Babich's checkbook in his car.
Babich's relatives reject the idea that his
planned execution would violate his human rights. A spokesman for
the S.C. Attorney General has said the IAHRC has no jurisdiction in
the case. But as an IAHRC member, the United States has signed
treaties that forbid the arbitrary use of the death penalty and
supports the elimination of all forms of racial discrimination,
Pringle said. In the years that Green has been on death row, the
series of appeals in his case has caused Babich's family to
painfully relive her death, said Babich's sister, Jane Zoon of New
"It is about time," she said. "My family is very
happy to see that it will finally be over with." Babich's daughter,
Michele Lutzkanin of New Mexico, said if executing Green would be a
deterrent to murder she supports it. "But I do not gain any personal
satisfaction from this," she said. A 15-year delay in setting an
execution date, she said, dilutes the reason for the death penalty.
"I believe (the execution) should have been swifter," she said. "People
have forgotten what happened in Charleston and forgotten my mother."
AP, May 7, 2002
SOUTH CAROLINA: Appeal of death sentence denied;
S.C. Supreme Court upholds conviction.
Just 3 days after South Carolina's latest
execution, the state Supreme Court has made a decision that places
another inmate closer to the death chamber.
Justices voted 4-1 Monday to let Anthony Green's
death sentence stand. Green was convicted of shooting a woman in the
head with a rifle in the parking lot of the Charles Towne Shopping
Mall in November 1987 and taking her purse.
Green can ask the state Supreme Court to
reconsider its ruling, and if that fails, appeal to the U.S. Supreme
Court, attorney general's office spokesman Robb McBurney said. After
that, the state will set an execution date. Unless a court
intervenes, Green could be put to death by the end of the year,
Green's lawyers argued that his conviction should
be overturned because the trial judge allowed a racially biased
juror into the jury pool. But the justices ruled that since the
juror wasn't picked to hear the trial, Green's rights weren't
violated. That's a change from earlier rulings, which said if a
juror was improperly put into the jury pool and defense lawyers had
dismissed as many people off the jury as they could, then a
conviction could be overturned even if the juror never heard
testimony in the case.
The court's decision to break from earlier
rulings is fine, but the court shouldn't apply the new standard to a
man who faces the death penalty, Justice Costa Pleicones said in his
dissent. He called the move "shocking to the universal sense of
In his 2 years on the high court, Pleicones has
sided with the defense in at least 3 death penalty cases, often
advocating the state take extreme caution before sending an inmate
to the death chamber.
(source: Associated Press)
220 F.3d 220
ANTHONY GREEN, Petitioner-Appellant,
WILLIAM D. CATOE, Director, South Carolina Department of Corrections;
CHARLES M. CONDON, Attorney General, State of South Carolina,
UNITED STATES COURT OF APPEALS, FOR THE FOURTH
Argued: May 4, 2000.
Decided: August 1, 2000.
Appeal from the United States
District Court for the District of South Carolina, at
Before WILKINS, MOTZ, and
KING, Circuit Judges.
Affirmed by published opinion.
Judge King wrote the majority opinion, in which Judge Wilkins
joined. Judge Motz wrote a dissenting opinion.
KING, Circuit Judge:
appeals from the judgment of the district court in South
Carolina denying his petition for habeas corpus relief. In this
appeal, Green challenges the dismissal of two claims: (1) that
the Supreme Court of South Carolina denied him procedural due
process in the course of resolving his direct appeal; and (2)
that he was denied effective assistance of counsel at sentencing,
in violation of the Sixth Amendment. We have carefully
considered these claims and agree that Green is not in custody
in violation of the Constitution or laws of the United States.
We therefore affirm the judgment of the district court.
In the afternoon of November
21, 1987, Susan Babich parked her car in the rear lot of the
Charles Towne Square Shopping Mall in Charleston, South
Carolina. After shopping at the mall, she returned to her car;
before she could drive away, however, she was approached by
Green, who advanced rifle in hand. Green then shot Ms. Babich in
the head, stole her pocketbook, and fled the scene in another
car. Based on a description from an eyewitness, the police soon
apprehended Green in the vicinity of the mall. The police found
the rifle and Ms. Babich's checkbook in Green's car, and Green
ultimately gave a statement admitting to his involvement in
Green was tried by jury in
Charleston County, South Carolina. The jury found Green guilty
of murder and armed robbery and, after a separate sentencing
proceeding, recommended a sentence of death. On direct appeal,
the Supreme Court of South Carolina upheld Green's conviction
and sentence. See State v. Green, 392 S.E.2d 157, 158 (S.C.
1990). Following the exhaustion of his remaining state remedies,
including an application for post-conviction relief, Green filed
a petition for federal habeas corpus relief. The district court
then considered and dismissed his petition. With its dismissal,
the district court granted Green a certificate of appealability
to this Court. See 28 U.S.C. § 2253. From the dismissal, Green
brings this appeal, and we possess jurisdiction pursuant to 28
U.S.C. § 1291.
Under the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), a federal court
may not grant a writ of habeas corpus unless the state's
adjudication of a claim 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." 28 U.S.C. § 2254(d). As the Supreme Court
recently made clear:
[Section] 2254(d)(1) places a
new constraint on the power of a federal habeas court to grant a
state prisoner's application for a writ of habeas corpus with
respect to claims adjudicated on the merits in state court. . .
. Under the "contrary to" clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion
opposite to that reached by this Court on a question of law or
if the state court decides a case differently than this Court
has on a set of materially indistinguishable facts. Under the "unreasonable
application" clause, a federal habeas court may grant the writ
if the state court identifies the correct governing legal
principle from this Court's decisions but unreasonably applies
that principle to the facts of the prisoner's case.
Williams v. Taylor, 120 S. Ct.
1495, 1523 (2000).
In this appeal, Green asserts
two constitutional grounds for habeas corpus relief: (1) a Due
Process violation and (2) a Sixth Amendment violation. With
respect to Green's Sixth Amendment claim, the South Carolina
trial court that considered Green's application for
postConviction relief (the "state PCR court") issued an
extensive opinion explaining why Green was not entitled to
relief on that basis. However, the separate Due Process claim
raised by Green is in a different procedural posture, since it
was only presented to the Supreme Court of South Carolina in the
petition for rehearing submitted to that court following
resolution of Green's direct appeal. The"adjudication" of this
claim is explained by two sentences: "Petition for Rehearing is
denied," signed by four Justices; and "I would grant," signed by
Under our precedent, this
perfunctory rejection of Green's Due Process claim does
constitute an "adjudication" for purposes of section 2254(d)(1).
See Cardwell v. Greene, 152 F.3d 331, 339 (4th Cir. 1998);
Wright v. Angelone, 151 F.3d 151, 156-57 (4th Cir. 1998).
Nonetheless, as we made clear in Cardwell:
[B]ecause the state court
decision fails to articulate any rationale for its adverse
determination of Cardwell's claim, we cannot review that court's
"application of clearly established Federal law," but must
independently ascertain whether the record reveals a violation
of [a constitutional right]. . . . Where, as here, there is no
indication of how the state court applied federal law to the
facts of a case, a federal court must necessarily perform its
own review of the record. Thus, on the facts of this case, the
distinction between de novo review and "reasonableness" review
Cardwell, 152 F.3d at 339 (emphasis
added) (quotation omitted). Accordingly, because there is no
indication of how the Supreme Court of South Carolina applied
federal law to the facts of Green's Due Process claim, we must
review that claim under the Cardwell standard.
During jury selection, the
trial court declined to remove three jurors, whom Green had
moved to excuse for cause, from the jury venire, so Green used
peremptory challenges on all three. Green ultimately exhausted
his peremptory challenges, after which two jurors were seated on
the jury that convicted Green and condemned him to death.
Green asserts that under the
law of South Carolina, as it existed prior to the resolution of
his direct appeal, he was entitled to a new trial if he made two
showings: (1) that he had been forced to use a peremptory
challenge on a venireperson who should have been excused for
cause, and (2) that he had exhausted his peremptory challenges
before the jury was impaneled. On direct review, the Supreme
Court of South Carolina concluded that the trial court had erred
in denying Green's motion to excuse, for cause, one of the three
jurors at issue. Green, 392 S.E.2d at 159-61. According to Green,
at that point, he had satisfied the two then-existing
prerequisites for a new trial. However, in his direct appeal,
the Supreme Court of South Carolina declined to award Green a
new trial, instead imposing what Green characterizes as a "new"
third requirement -that "this error deprived him of a fair trial"
(the "fair trial element"). Green, 392 S.E.2d at 160. Because
Green could not make this third showing, he was denied a new
trial by the Supreme Court of South Carolina. Green asserts that
the imposition of this fair trial element, which previously had
not been required under South Carolina law, was effected without
proper notice, in violation of his right to procedural due
process. Specifically, Green asserts that the law was changed
and retroactively applied to his appeal, and if he had been
given proper notice, he could have (1) made a record at trial
sufficient to demonstrate that he had been denied a fair trial,
and (2) argued against a change in the law on direct appeal.
Before turning to the merits
of Green's Due Process claim, we note that the State agrees with
Green that this claim has been properly preserved; indeed, it
could not have argued otherwise. The alleged Due Process
violation arose from the Supreme Court of South Carolina's
resolution of his direct appeal; thus, this claim could not have
been raised prior to Green's petition for rehearing thereon. In
Sellers v. Boone, 200 S.E.2d 686, 687 (S.C. 1973), the Supreme
Court of South Carolina stated that if an error arose out "of[an]
affirmance by an appellate court," an appellant may seek a
review of the alleged error on the merits in a petition for
rehearing. Green included his argument in his petition for
rehearing, and we thus agree with the State that Green presented
the Due Process claim to the State, the State adjudicated the
claim, and Green has exhausted his state remedies with respect
to the claim.
Under the Fourteenth Amendment,
no state "may deprive any person of life, liberty, or property,
without due process of law." U.S. Const. amend. XIV, § 1.
Inasmuch as Green has alleged a deprivation of procedural due
process, our analysis involves two steps. Stewart v. Bailey, 7
F.3d 384, 392 (4th Cir. 1993). First, we must determine "whether
there exists a liberty or property interest which has been
interfered with by the State." Id. Second, we must ascertain "whether
the procedures attendant upon that deprivation were
constitutionally sufficient." Id.
With respect to the first step
of the Due Process analysis, many state-created rights have been
accorded the status of liberty or property interest within the
meaning of the Fourteenth Amendment. See, e.g., Brinkerhoff-Faris
Trust & Savings Co. v. Hill, 281 U.S. 673, 677 (1930); Wolff v.
McDonnell, 418 U.S. 539, 557-58 (1974). Thus, state-conferred
rights have been recognized as liberty or property interests
that are "sufficiently embraced within Fourteenth Amendment `liberty'
to entitle [defendants] to .. . minimum procedures appropriate
under the circumstances." Wolff , 418 U.S. at 557. Of course, a
state has "the authority to create, or not," each of these
rights; however, once created, the Due Process clause guarantees
"that the state-created right is not arbitrarily abrogated." Id.
Within this context, we must examine the right that Green claims
was abrogated by South Carolina.
According to Green, prior to
the resolution of his appeal, a defendant who established two
elements: (1) that he was forced to use a peremptory challenge
on a venireperson who should have been excused for cause; and
(2) that he had exhausted his peremptory challenges before the
jury was impaneled, was absolutely entitled to a new trial.
Under the then-controlling law of South Carolina as articulated
by Green, the Supreme Court of South Carolina was without
discretion to deny him a new trial under the facts present in
his appeal. In other words, Green's asserted state-created right,
which would be subject to the guarantee of procedural due
process, is his right to a new trial.
For authority that he was
previously guaranteed a new trial under these circumstances,
Green first relies upon State v. Sanders, 88 S.E. 10, 12 (S.C.
1916). There, the Supreme Court of South Carolina reversed and
remanded a criminal conviction based solely on an argument
raised by the appellant that a motion to excuse for cause had
been erroneously rejected, causing him to use a peremptory
challenge. The court remanded for a new trial based upon the
His honor, the presiding judge
ruled that the juror was competent, and that he should be
presented to the prisoner who rejected him [using a peremptory
challenge]. It is admitted that the defendant exhausted his
peremptory challenges before the panel of jurors was completed.
It is true the juror stated that he could give the prisoner and
the state a fair and impartial trial; but, as he also stated
that he felt a resentment in this particular case, which might
prejudice him in rendering a verdict, that, as stated, he felt a
prejudice in this particular case, and that he felt a natural
resentment against a lawyer of the colored race, pleading to a
jury of which he was a member, this court is satisfied that his
honor, the circuit judge, erroneously exercised his discretion
in ruling that the juror was competent.
Id. at 12. The import of this
holding is clear: if a motion to excuse a juror is improperly
denied, the defendant then uses a peremptory challenge on that
juror, and the defendant runs out of peremptory challenges
before the last juror is seated, then the defendant is entitled
to a new trial.
Green also relies upon State
v. Anderson, 281 S.E.2d 111, 112 (S.C. 1981), to assert that he
was previously guaranteed a new trial. During Anderson's trial,
the court had allotted the defendant five peremptory challenges,
instead of the ten required by statute. Id. The Supreme Court of
South Carolina held: "We think appellant, having objected to the
limitation and having exhausted her allotted challenges, has
shown prejudice. To venture a sixth challenge would have been
futile." Id. at 112. The court thus granted a new trial in
Anderson with no mention whatsoever of a "fair trial" element;
instead, it was sufficient that an objection was raised and the
defendant's peremptory challenges were exhausted.
Significantly, in a case
decided nine years after the 1990 decision resolving Green's
direct appeal, the Supreme Court of South Carolina again noted
that no "fair trial" demonstration was necessary in the context
of an error relating to peremptory challenges. See State v.
Short, 511 S.E.2d 358, 360-61 (S.C. 1999). There, in
circumstances analogous to Green's, the court "adopt[ed] the
majority rule that no showing of actual prejudice is required to
find reversible error for the denial or impairment of the right
to a peremptory challenge." Id. at 360. It did so in agreement
with the Court of Appeals of South Carolina, which had concluded
that "there was no way to determine with any degree of certainty
whether [the defendant's] right to a fair trial by an impartial
jury was abridged." Id. Although Short was decided in the
context of a challenge under Batson v. Kentucky, 476 U.S. 79
(1986), the broad language and rationale of Short are applicable
to cases in which a defendant is denied a peremptory challenge
by a trial court's improper denial of a motion to excuse a juror
The State responds with two
arguments. First, it asserts that we should not be attempting to
ascertain whether the fair trial element was "new" because the
Supreme Court of South Carolina has indicated that it was not.
Specifically, in the course of discussing the fair trial element
during the resolution of Green's appeal, the court stated:
In most of the South Carolina
cases involving peremptory challenges, appellants have failed to
satisfy the first step of this process. In only one South
Carolina case have we reached the second step of the review
procedure. State v. Cooper, 291 S.C. 332, 353 S.E.2d 441
Cooper, appellant asserted that the trial court erroneously
qualified a highway patrolman as a juror who should have been
excused for cause because he fell under a statutory exclusion.
For purposes of that opinion, we clarified the application of
the statute and noted the judge's error in his interpretation of
the statute. However, because we reversed that case for other
reasons, it was not necessary for us to determine whether that
error alone would have warranted reversal. In other words, we
did not engage in the third[, fair trial] step of the process. .
392 S.E.2d at 160. This
passage at least implies that the fair trial element has always
been an unstated element of the test for a new trial. In
reliance thereon, the State argues that we are not entitled to
secondguess, in a federal habeas corpus proceeding, a state
court's construction of its own law.
Second, the State relies upon
two pre-1990 decisions in which the Supreme Court of South
Carolina alluded to the fair trial element ultimately made
explicit in Green. See State v. Weaver, 36 S.E. 499, 501 (S.C.
1900); State v. Plath, 284 S.E.2d 221, 227 (S.C. 1981). A
century ago, in Weaver, one ground upon which an appellant
sought review was the trial court's erroneous denial of a motion
to excuse a juror for cause, which the defendant claimed
resulted in the premature exhaustion of his peremptory
challenges. The Supreme Court of South Carolina rejected this as
a basis for a new trial for several reasons. First, it noted
that this assertion was "speculative" because none of the jurors
who were actually seated had been challenged -either
peremptorily or for cause. Id. at 500. Second, the court found
that the trial court had not erred in declining to excuse the
juror for cause. Id. at 501. Third, the court noted, in the
alternative, that "in view of the fact that, so far as appears
from the record before us, there was not a single person on the
jury which tried the case to whom any objection was interposed,
we do not see that the appellants have any legal ground of
complaint." Id. Fourth, the court found that the defendant had
not exhausted his peremptory challenges before the jury was
impaneled. Id. Although the first and third bases relied upon in
Weaver were holdings in the alternative, the court, in those
bases, at least suggested the "fair trial" showing to be
necessary before a new trial would be ordered.
Subsequently, in the 1981
Plath decision, South Carolina again appeared to endorse a fair
trial element. Plath , 284 S.E.2d at 227. There, the defendant
claimed error in the trial court's rejection of his attempt to
exercise a peremptory challenge after the jury had been seated
but before it had been sworn. The court essentially assumed that
the denial had been error but nonetheless found no abuse of
discretion because the defendant could not demonstrate the
deprivation of a fair trial flowing from this error:
[T]he rationale of the court
in [State v. Holland, 201 S.E.2d 118, 118 (S.C. 1973)] is
applicable: . . . "No showing was made to the court at trial,
nor has any been made since, to indicate bias or lack of
impartiality on the part of this juror[, whom defendant had
attempted to excuse by peremptory challenge on the third day of
trial]". . . .
[Similarly,] Plath had ample
opportunity to examine the prospective juror on voir dire. The
record shows the trial judge gave counsel for Plath two
opportunities to strike the juror; one when she was accepted and
the other later in the jury selection process. Furthermore, co-defendant
Arnold contended removing a juror after all of the jurors and
alternates had been seated would prejudice his case. Plath has
not shown the requisite prejudice to him in order to hold the
trial judge abused his discretion by refusing to allow the
belated peremptory challenge to be exercised.
Id. at 227 (emphasis added).
This passage implied that, even if it was error to deny the use
of a peremptory challenge, that error would not constitute an
abuse of the trial court's discretion unless some "showing"
could be made that a juror seated on the panel was "bias[ed]" or
"impartial[ ]." Id. The Staterelies upon Weaver and Plath in
asserting that the fair trial element -articulated as the third
element in the 1990 decision resolving Green's direct appeal
-has actually been, for the last century, an unstated element of
the new trial test.
On the contrary, we believe
that under the South Carolina law in effect prior to Green's
appeal, he had a clearly established right to a new trial upon a
demonstration of two elements -(1) that he had wasted a
peremptory challenge on a juror who should have been excused for
cause, and (2) that he exhausted his peremptory challenges
before the jury was impaneled -but without the third element -a
demonstration that he had been deprived of a fair trial.
Although the view of the Supreme Court of South Carolina
relating to the law in that state would ordinarily be conclusive
on this question, we are unable to rely upon that view here
because the highest court has articulated conflicting
characterizations of its law. In its 1990 Green decision, the
Supreme Court of South Carolina arguably implied that the fair
trial element had always been an unstated part of the new-trial
test, but, in its 1999 Short opinion, the court stated that such
a showing had never been required:
We now overrule Plath and
adopt the majority rule that no showing of actual prejudice is
required to find reversible error for the denial or impairment
of the right to a peremptory challenge. We note that Plath is
distinguishable from our other decisions discussing "prejudice"
in the denial of a peremptory challenge where the issue actually
turned on whether the complaining party had established he was
denied the right to exercise a peremptory challenge. Where such
a denial was established, we implicitly applied the majority
rule discussed above and reversed without a show ing of actual
prejudice. See State v. Anderson, 276 S.C. 578, 281 S.E.2d 111
(1981) (prejudice in wrongfully limiting number of peremptory
challenges where defendant exercised all permitted); Moore v.
Jenkins, 304 S.C. 544, 405 S.E.2d 833 (1991) (failure to use
side-to-side procedure in allowing peremptory challenges in a
case with multiple defendants prejudiced the plaintiff as a
matter of law). In cases finding no prejudice, on the other hand,
we actually determined the complaining party had not established
the denial of a peremptory challenge. See Laury v. Hamilton, 317
S.C. 503, 455 S.E.2d 173 (1995) (no prejudice where party
received greater number of strikes than that to which he was
entitled under side-to-side method); State v. Holland, 261 S.C.
488, 201 S.E.2d 118 (1973) (no prejudice in limiting number of
peremptory challenges where defendants used fewer than allowed).
Before reversible error can be found, the complaining party must
of course establish the denial of his right to exercise a
Id. at 360-61 (emphasis added).
Thus faced with two statements -(1) an initial statement that
the fair trial element has always been implied in the test, and
(2) a subsequent statement that the fair trial element had, by
negative implication, never been part of the test -we cannot
unquestioningly rely on the Supreme Court of South Carolina's
statement in Green.
We have thus independently
reviewed the applicable law. From our review, it is immediately
apparent that no decision, prior to Green's, required a
demonstration that the defendant had been deprived of a fair
trial; indeed, the Green court acknowledged as much. Green, 392
S.E.2d at 160. The heretofore absence of this requirement is
significant because the South Carolina courts had granted a new
trial at least twice, in Sanders and Anderson, without
mentioning the fair trial element. We also give some weight to
the fact that numerous South Carolina decisions had considered
the question presented in this case without mentioning the "fair
trial" element. See supra note 1. Under the facts present here,
we can only conclude that the rule in effect prior to Green's
case was that he was entitled to a new trial upon a
demonstration of the two elements discussed above.
In this light, we must
conclude that -prior to the resolution of his direct appeal in
1990 -Green would have received a new trial. The change in law -to
add the third, so-called "fair trial" element, effectively
deprived him of that previously guaranteed right. On these facts,
"there exists a liberty or property interest which has been
interfered with by the State." Stewart, 7 F.3d at 392.
Having resolved the first
question in Green's favor, we next turn to the second issue: "whether
the procedures attendant upon that deprivation were
constitutionally sufficient." Id. Assessing the adequacy of
procedure here requires that we balance the interest of the
state against those of Green: "[T]he very nature of due process
negates any concept of inflexible procedures universally
applicable to every imaginable situation." Wolff, 418 U.S. at
560 (quotation omitted). Thus, "[c]onsideration of what
procedures due process may require under any given set of
circumstances must begin with a determination of the precise
nature of the government function involved as well as of the
private interest that has been affected by government action."
Id. (quotation omitted).
There are two competing
interests underlying our determination of whether Green was
afforded sufficient process in connection with this change in
law. On one hand, our common-law system requires that courts
have the opportunity to make law through decisions rendered in
individual cases, necessarily requiring that rules will develop
and change through the cases themselves. See Brinkerhoff, 281
U.S. at 681 n.8. On the other hand, defendants must have fair
warning of the law under which they are tried, and "[t]here can
be no doubt that a deprivation of the right of fair warning can
result . . . from an unforeseeable and retroactive judicial
expansion of narrow and precise statutory language." Bouie v.
City of Columbia, 378 U.S. 347, 352 (1964). Our task here is to
balance these interests, without unduly burdening the right of
the state courts to resolve questions under common law or the
right of defendants to fair warning.
In this light, a change in
substantive law by a state that effects a deprivation of a right
can occasion a violation of procedural due process. See, e.g.,
Douglas v. Buder, 412 U.S. 430, 432 (1973); Bouie, 378 U.S. at
352-55; Brinkerhoff, 281 U.S. at 681-82; cf. NAACP v. Alabama ex
rel. Patterson, 357 U.S. 449, 455 (1958) (discussing state
procedure in context of Supreme Court jurisdiction). Brinkerhoff
illustrates an application of this principle. There, the Supreme
Court of Missouri had held, in a decision preceding
Brinkerhoff's case, that a specific state administrative body ("state
tax commission") did not have the power to consider an
application for tax relief. Then, when Brinkerhoff sought tax
relief in state court, the Supreme Court of Missouri held that
he could not sue in state court until he had first presented an
application for tax relief to the state tax commission. Because
the previous rule -barring applications for tax relief to the
state tax commission -had been clear and unambiguous, because
the change in law was unforeseeable, and because the
unforeseeable change effectively deprived the plaintiff of any
remedy, the Supreme Court concluded that there had been a Due
Process violation. In so holding, the Court noted:
But our decision in the case
at bar is not based on the ground that there has been a
retrospective denial of the existence of any right or a
retroactive change in the law of remedies. We are not now
concerned with the rights of the plaintiff on the merits,
although it may be observed that the plaintiff's claim is one
arising under the federal Constitution and, consequently, one on
which the opinion of the state court is not final; or with the
accuracy of the state court's construction of [state law]. Our
present concern is solely with the question whether the
plaintiff has been accorded due process in the primary sense -whether
it has had an opportunity to present its case and be heard in
its support. Undoubtedly, the state court had the power to
construe the statute dealing with the state tax commission; and
to reexamine and overrule [its own authority]. Neither of these
matters raises a federal question; neither is subject to our
review. But, while it is for the state courts to determine the
adjective as well as the substantive law of the state, they must,
in so doing, accord the parties due process of law. Whether
acting through its judiciary or through its Legislature, a state
may not deprive a person of all existing remedies for the
enforcement of a right, which the state has no power to destroy,
unless there is, or was, afforded to him some real opportunity
to protect it.
Id. at 681 (footnotes omitted).
A defendant thus must
establish several elements to prove a deprivation of procedural
due process based on a state's change of its law. First, he must
establish that there was a clear, settled rule in effect prior
to his case. See Brinkerhoff, 281 U.S. at 678 ("Under the
settled law of the state, that remedy was the only one available.");
Bouie, 378 U.S. at 352 (noting that statutory language
was"narrow and precise"); Wolff, 418 U.S. at 557 (noting that
statute created "right to good time"); cf. NAACP, 357 U.S. at
456 (noting that prior rule arose from "past unambiguous
holdings"). Second, he must establish that the decision in his
case constituted a change in the heretofore clearly established
rule. See Brinkerhoff, 281 U.S. at 677 ("No one doubted the
authority of [a prior holding] until it was expressly overruled
in the case at bar."); Bouie, 378 U.S. at 352 (expansion of
narrow language); Wolff, 418 U.S. at 557 (denial of right to
good time credits); cf. NAACP, 357 U.S. at 456 (change in
procedure). Third, the defendant must establish that the change
in law effecting a deprivation of a right occurred in the
absence of sufficient procedure -that the state did not "afford[
] to him some real opportunity to protect [his right]."
Brinkerhoff, 281 U.S. at 682.
Because the first and second
elements above are established here, see supra at 12, we must
focus on the third. Green asserts that he did not receive enough
notice (1) to make a record sufficient to satisfy the "fair
trial" showing on appeal nor (2) to preserve, brief, or argue
against this change in law. Therefore, we have carefully
examined the notice that Green was afforded.
In that regard, the prior
South Carolina authorities on this issue guide our review.
Although South Carolina had, prior to Green's appeal, granted a
new trial upon a demonstration of two elements, the Supreme
Court of South Carolina had at least suggested, in both its
Weaver and Plath decisions, that a third, "fair trial" showing
might be required. Further, there had been no prior explicit
rejection, in any decision, of the fair trial element that was
ultimately adopted by the court in resolving Green's appeal. Cf.
Brinkerhoff, 281 U.S. at 682 n.9 ("Had there been no previous
construction of the statute by the highest court, the plaintiff
would, of course, have had to assume the risk that the ultimate
interpretation by the highest court might differ from its own.").
In assessing the notice given, we also must give weight to the
fact that, in the 1999 Short decision, the Supreme Court of
South Carolina considered the "fair trial" element sufficiently
established to necessitate overruling its 1981 Plath decision.
The Supreme Court has indicated that if prior state law "suggest[ed]"
a new rule, then the change of law was foreseeable, NAACP, 357
U.S. at 457; accord, Reich v. Collins, 513 U.S. 106, 112 (1994)
(reviewing Georgia case law), and in the factual context present
here, we thus conclude that the change in law effected in
Green's case was reasonably foreseeable.
We agree with Green that the
state was required to afford him "an opportunity to present [his]
case and be heard in its support." Brinkerhoff, 281 U.S. at 681.
However, we believe that a defendant has sufficient notice to
(1) make a record for appeal and (2) preserve, brief, and argue
against a change in the law if that change in the law was
reasonably foreseeable under the prior applicable law. See Bouie,
378 U.S. at 352 (deprivation of right of fair warning from "unforeseeable
and retroactive judicial expansion of narrow and precise
statutory language"); Douglas, 412 U.S. at 432 ("unforeseeable
application of that interpretation . . . deprived petitioner of
due process"); cf. NAACP, 357 U.S. at 457 (implying no Due
Process violation if petitioner "could . . . fairly be deemed to
have been apprized of [the] existence [of local procedural rule]").
In reaching our conclusion today, we do not necessarily endorse
foreseeability as the benchmark in Due Process claims; we merely
conclude that if the change of law was reasonably foreseeable
based on indications in prior case law, then the defendant had
sufficient notice in the Due Process sense.
In so holding, we are acutely
aware that changes in applicable law of this kind can produce
results reasonably perceived as unfair; however, we are equally
cognizant of the Supreme Court's admonition in Brinkerhoff:
The process of trial and
error, of change of decision in order to conform with changing
ideas and conditions, is traditional with courts administering
the common law. Since it is for the state courts to interpret
and declare the law of the State, it is for them to correct
their errors and declare what the law has been as well as what
Brinkerhoff, 281 U.S. at 681
In this context, we must also
briefly address the arguments supporting the dissenting opinion
of my good friend Judge Motz. Judge Motz appears to endorse the
adoption of a rule that when"a state's highest court itself has
established and for many years . . . consistently adhered to a
rule" (see post at 232), a departure therefrom is per se
unforeseeable. With respect, we cannot agree with this position.
The Supreme Court itself has recognized that state courts may
overrule clear, established rules consistent with Due Process:
"State courts . . . may ordinarily overrule their own decisions
without offending constitutional guaranties, even though parties
may have acted to their prejudice on the faith of earlier
decisions." Brinkerhoff, 281 U.S. at 681 n.8. This observation,
in our view, undermines any notion of a per se bar on changing a
clear and established rule.
This brings us to what "process"
must be provided in any specific case, and we have concluded
that a reasonably foreseeable change in law satisfies the Due
Process requirement. On this point, Judge Motz asserts that the
suggestions incorporated into Weaver and Plath were insufficient
to make a change in the law reasonably foreseeable. Again, we
must disagree. Of course the "suggestions" forecasting a change
in law will not come in controlling authority, for if those
suggestions had, they would have constituted the change in law
themselves. In other words, something not co-extensive with the
actual change in law must be sufficient to meet the measure of "reasonable
foreseeability." While we cannot say that indications in prior
case law will always be sufficient, we have concluded that the
indications in Weaver and Plath were sufficiently analogous to
the debate that might ensue when a state's highest court is
considering a question in the first instance that counsel here
had notice in the Due Process sense. Any other approach would
tend to convert any change in law into a federal Due Process
violation. In short, we simply do not believe that the change of
law effected here deprived Green of procedural due process,
and the approach endorsed by Judge Motz would be likely to
constrain development of the common law. Green's claim thus
Next, we address Green's
assertion that he was deprived of effective assistance of
counsel at the sentencing stage. Specifically, he maintains that
his counsel was deficient in failing to submit two mitigating
factors to the jury: (1) lack of future dangerousness, and (2)
adaptability to prison life. The state PCR court, federal
magistrate judge, and district court each rejected this claim.
We have carefully considered Green's asserted instances of
ineffective assistance, and we are convinced that the state PCR
court properly rejected these claims. In any case, we certainly
cannot conclude that the dismissal of these claims was
unreasonable under Williams , supra.
For above-stated reasons, we
affirm the denial of Green's petition for habeas corpus.
MOTZ, Circuit Judge, dissenting:
I agree with most of Judge
King's fine opinion. I agree that a "clear, settled rule"
existed in South Carolina prior to Green's case. Ante at 229. I
agree that this rule provided that a defendant was entitled to a
new trial (1) if he had wasted a peremptory challenge on a juror
who should have been excused for cause and (2) had exhausted his
peremptory challenges before the jury was impaneled. I agree
that Green satisfied both portions of this rule. I agree that
the Supreme Court of South Carolina's holding that Green must
demonstrate an additional element--deprivation of a fair trial,
or actual prejudice-constituted a change in this established
rule. And I agree that such a change, unless reasonably
foreseeable, requires reversal, because if Green could not
foresee the change, he would not have had the opportunity to
develop at trial a record that could support a finding of
prejudice. These are the difficult questions presented by the
case; the majority persuasively and correctly deals with all of
them. Yet it slips in its ultimate holding, somehow finding that
Green could have foreseen the abolition of this settled state
rule in his case. From that ultimate holding, I must
As the majority recognizes,
more than eighty years ago, the Supreme Court of South Carolina
established the clear rule at issue here, a rule under which a
petitioner need not demonstrate actual prejudice. See State v.
Sanders, 88 S.E. 10, 12 (S.C. 1916). Moreover, South Carolina's
highest court has followed that rule on numerous occasions. See,
e.g., State v. Short, 511 S.E.2d 358, 360 (S.C. 1999); State v.
South, 331 S.E.2d 775, 778 (S.C. 1985); State v. Elmore, 308
S.E.2d 781, 784 (S.C. 1983); State v. Hardee, 308 S.E.2d 521,
524 (S.C. 1983); State v. Anderson, 281 S.E.2d 111, 112 (S.C.
1981); State v. Britt, 117 S.E.2d 379, 385-86 (S.C. 1960); State
v. Gregory, 174 S.E. 10, 11 (S.C. 1934); State v. King, 155 S.E.
409, 420 (S.C. 1930); see also Moore v. Jenkins, 405 S.E.2d 833,
835 (S.C. 1991) (finding "prejudicial as a matter of law" the
method of allotting peremptory strikes in a multiple-defendant
case by which each party, rather than each side, exercised the
statutorily-mandated number of strikes); William Shepard
McAninch & W. Gaston Fairey, The Criminal Law of South Carolina
146 (2d ed. 1989) ("South Carolina treats the wrongful
deprivation of a peremptory challenge as error per se so long as
all peremptory challenges are exhausted."). As the majority
observes, "it is immediately apparent that no decision, prior to
Green's, required a demonstration that the defendant had been
deprived of a fair trial; indeed, the [Supreme Court of South
Carolina in] Green . . . acknowledged as much." Ante at 227.
Nevertheless, the majority concludes that prior to Green's case,
the Supreme Court of South Carolina "suggested" a change in this
long established rule, making that change "foreseeable" by Green.
How is that possible? The
majority's conclusion seems to me to be paradoxical. I have not
found a single case (and the majority cites none) which has held,
as the majority does here, that a state's supreme court, after
establishing and for eighty years invariably following a "clear,
settled rule," has somehow simultaneously "suggested" a radical
change in that rule. A state rule is not clear and settled for
due process purposes until enunciated by the state's highest
court. When "there [has] been no previous" ruling on point by
that court, a litigant must "assume the risk that the ultimate
interpretation by the highest court might differ from its own."
See Brinkerhoff-Faris Trust & Sav. Co. v. Hill, 281 U.S. 673,
682 n.9 (1930). Indeed, even if a litigant relies on a valid
state court decision, the state's highest court may overrule
that decision without violating the litigant's due process
rights. But when, as here, a state's highest court itself has
established and for many years so consistently adhered to a rule
such that it is "clear" and "settled," how can a litigant,
consistent with Due Process, be required to "assume the risk"
that the highest court will refuse to follow its own established
rule in his case? The answer is that he cannot.
Rather, as the Supreme Court
noted in Brinkerhoff, when a state's highest court has clearly
established a rule as"the settled law of the State, . . . it
would . . . be[ ] entirely futile" for a litigant to pursue a
defense based on the possibility that the rule might be
different in his case. 281 U.S. at 678-79. Indeed, it would run
contrary to our expectation that litigants assert only
potentially meritorious arguments to require them to present a
defense on the assumption that a "clear, settled rule"
established and consistently followed by the state's highest
court might change. Yet such is the effect of the majority's
To support its conclusion that
the Supreme Court of South Carolina "suggested" a change in its
own clear and settled rule requiring no showing of prejudice,
the majority relies on State v. Weaver, 36 S.E. 499, 501 (S.C.
1900), and State v. Plath, 284 S.E.2d 221, 227 (S.C. 1981). But
the Supreme Court of South Carolina decided Sanders,
establishing this rule, sixteen years after Weaver, thus
implicitly overruling any holding to the contrary in Weaver.
Moreover, just last year in Short, the Supreme Court of South
Carolina carefully explained that Plath did not govern cases
like that at hand. See 511 S.E.2d at 360-61 (explaining that
Plath did not address timely peremptory challenges improperly
denied during the normal course of voir dire, but rather
addressed only belated peremptory challenges, asserted after the
jury had been impaneled). In Short, South Carolina's highest
court not only extended its rule requiring no showing of actual
prejudice to belated peremptory challenges, but also, and more
importantly for our purposes, emphasized that it had always
followed and continued to follow this well-established rule for
timely peremptory challenges. Id.
In sum, the two cases--Weaver
and Plath--that form the entire basis of the majority's "foreseeability"
holding do not provide any evidence that the Supreme Court of
South Carolina contemplated changing its well-established rule
to require an additional element. Weaver is 100 years old and
was implicitly overruled by South Carolina's highest court more
than 80 years ago; as for Plath, the Supreme Court of South
Carolina has expressly stated that Plath never applied to or
governed cases like that at hand. The majority's reliance on
these two non-controlling cases to hold that Green should have
foreseen a radical change in well-established state law is
directly contrary to the Supreme Court's express refusal to lend
non-controlling cases such weight. See Bouie v. City of
Columbia, 378 U.S. 347, 357-59 (1964) (rejecting contention that
indications of change in state civil trespass law should have
led a litigant to anticipate a change in criminal trespass law).
In this case, no one disputes
that the state trial court clearly erred in failing to
disqualify a juror for prejudice on the basis of his racial bias,
and today's opinion correctly holds that under the clear and
settled state rule in effect at the time, that error warranted a
new trial. And yet the majority looks to cases that the state's
highest court has either overruled or deemed non-controlling to
find that even though the trial court erred, even though on
appeal the state rule was changed only for this one petitioner,
still his counsel could have foreseen, from review of such non-controlling
case law, that the state rule could change. I cannot vote to
uphold a capital conviction when a defendant has not had a full
opportunity to demonstrate prejudice in the composition of the
jury that convicted him. I therefore respectfully dissent.