Summary:

Longworth and his co-defendant David Rocheville decided to go to the WestGate Mall movie theater in Spartanburg where they used to work and rob it.

They dragged Hopps, an usher and University of South Carolina student, outside. Longworth pinned Hopps against a bar and Rocheville shot Hopps in the head.

The pair convinced Green, a theater manager, to let them back inside. They ordered Green at gunpoint to empty the safe and forced him into a van.

After driving away from the theater, Longworth stopped and ordered Green to get out, walk five paces, get on his knees and face forward. Rocheville then shot Green in the head.

Upon arrest, Longworth gave a complete confession. Rocheville was executed in 1999.

Citations:

State v. Longworth, 438 S.E.2d 219 (S.C. 1993) (Direct Appeal).
Longworth v. Ozmint, 302 F.Supp.2d 535 (2003) (Habeas).
Longworth v. Ozmint, 377 F.3d 437 (4th Cir. 2004) (Habeas).

Final Meal:

A hamburger, french fries and chocolate milkshake.

Final Words:

In the statement read by attorney David Belser, Longworth said he would not ask the families of Alex Hopps and Todd Green for forgiveness, because he knew it wouldn't be granted. "I am morally and legally responsible for what happened," Longworth said in the statement. "I hope they also know how deeply, truly sorry I am for what I have done. I hope my death brings them the peace they deserve."

Wikipedia.org

Spartanburg man executed for movie theater killings in 1991

By Michael Kerr - Myrtle Beach Online

Associated Press April 16, 2005

COLUMBIA, S.C. - In his final statement, a Spartanburg man convicted in the killings of two Upstate movie theater employees more than 14 years ago said he didn't pull the trigger, but he apologized to the victims' families. Richard Longworth, 36, died by lethal injection at 6:14 p.m. Friday.

In the statement read by attorney David Belser, Longworth said he would not ask the families of Alex Hopps and Todd Green for forgiveness, because he knew it wouldn't be granted. "I am morally and legally responsible for what happened," Longworth said in the statement. "I hope they also know how deeply, truly sorry I am for what I have done. I hope my death brings them the peace they deserve."

Green's mother and Hopps' father and sister witnessed the execution, the second stemming from a brutal double murder that Spartanburg residents still remember more than a decade later. Longworth stared at the ceiling, never turning his head to look at the witnesses through the barred window. Shortly after 6 p.m. he was given the lethal injection. His chest moved up and down rapidly for a minute or two and then all was still.

The final chapter in a 14-year story was complete. Longworth was the second of two men executed in the shooting deaths of 19-year-old Hopps and 24-year-old Green on Jan. 7, 1991. He lost a final appeal to the U.S. Supreme Court on Friday afternoon.

Longworth and his co-defendant David Rocheville decided to go to the WestGate Mall movie theater in Spartanburg where they used to work and rob it, prosecutors said. They dragged Hopps, an usher and University of South Carolina student, outside. Longworth pinned Hopps against a bar and Rocheville shot Hopps in the head.

The pair convinced Green, a theater manager, to let them back inside. They ordered Green to empty the safe and forced him into a van. After driving away from the theater, Longworth stopped and ordered Green to get out, get on his knees and face forward. Rocheville then shot Green in the head. Rocheville was executed in 1999.

"I hope my family knows how much I love them, and how ashamed I am that I have tarnished their name," Longworth said in his statement. "For the last 14 years I have tried to live my life as cleanly and as honorably as I was raised." Longworth had a hamburger, french fries and chocolate milkshake for his final meal.

"I would just like to say that two young men, two bright shining stars of South Carolina are no longer with us," Hopps' sister, Caroline Short, said after Longworth's execution. "They had a future. It's hard to really say how much I love my brother ... He told me he loved me regularly." Todd was Mary Ann Green's only child. "I can't explain how hard it is to go along without him," she said, fighting back tears.

About ten people protested outside the Broad River Correctional Facility carrying signs denouncing the death penalty. Margaret Abbott said she's been protesting executions at the facility for ten years, and that she is a friend of Longworth's mother. "Execution is not a solution," Abbott said before Longworth was put to death. "It doesn't solve anything. It doesn't heal anybody. You've got victims on both sides."

In 1991, Richard Longworth was convicted in a South Carolina state court for the murders of Alex Hopps and James Greene, employees of a Spartanburg, South Carolina movie theater that Longworth and an associate robbed. Longworth was sentenced to death.

In the evening of January 7, 1991, Longworth and his friend David Rocheville decided, while driving around in their minivan, to rob the WestGate Mall Cinema in Spartanburg, South Carolina. After entering the theater, Longworth took his handgun from his shoulder holster and gave it to Rocheville, and the two viewed a movie for a short time. The two then proceeded into the lobby to implement their plan to rob the theater of money located in the ticket booth.

When they encountered an usher, Alex Hopps, walking down the hallway, Longworth knocked Hopps down, jumped on him, held his hand over Hopps’ mouth, and dragged him outside of the theater through the side exit. As Longworth pinned Hopps against a waist-high bar that protected the air conditioning unit, Rocheville shot Hopps in the left side of the head. Rocheville then returned the gun to Longworth, who placed it back in his shoulder holster.

To reenter the theater, Longworth and Rocheville walked around to the front of the cinema and found the front doors locked. They motioned to James Greene, a cinema employee to whom they had waved when they initially entered the theater, and Greene opened the door. At that point, Longworth drew his gun and demanded that Greene open the safe in the ticket booth. Longworth took several money bags from the safe and ascertained from Greene that there were more bags in Greene’s automobile, ready for deposit.

After retrieving those bags, Longworth and Rocheville forced Greene into their minivan, which Longworth drove. Longworth again handed his gun to Rocheville and instructed him to shoot Greene if he moved. After driving away from the theater, Longworth stopped the vehicle and instructed Greene to get out, walk five paces, get on his knees, and stare straight ahead. At that point, Rocheville shot Greene in the back of the head.

Man executed for role in 1991 theater killings

Charleston Post and Courier

AP April 15, 2005

COLUMBIA--In his final statement, a Spartanburg man convicted in the killings of two Upstate movie theater employees more than 14 years ago said he didn't pull the trigger, but he apologized to the victims' families. Richard Longworth, 36, died by lethal injection at 6:14 p.m. Friday.

In the statement read by attorney David Belser, Longworth said he would not ask the families of Alex Hopps and Todd Green for forgiveness, because he knew it wouldn't be granted.

"I am morally and legally responsible for what happened," Longworth said in the statement. "I hope they also know how deeply, truly sorry I am for what I have done. I hope my death brings them the peace they deserve."

Green's mother and Hopps' father and sister witnessed the execution, the second stemming from a brutal double murder that Spartanburg residents still remember more than a decade later.

Longworth was the second of two men executed in the shooting deaths of 19-year-old Hopps and 24-year-old Green on Jan. 7, 1991. He lost a final appeal to the U.S. Supreme Court on Friday afternoon.

Longworth and his co-defendant David Rocheville decided to go to the WestGate Mall movie theater in Spartanburg where they used to work and rob it, prosecutors said. They dragged Hopps, an usher and University of South Carolina student, outside. Longworth pinned Hopps against a bar and Rocheville shot Hopps in the head. The pair convinced Green, a theater manager, to let them back inside. They ordered Green to empty the safe and forced him into a van. After driving away from the theater, Longworth stopped and ordered Green to get out, get on his knees and face forward. Rocheville then shot Green in the head.

Richard Longworth - South Carolina - April 15, 2005

The state of South Carolina is set to execute Richard Longworth, 37, on April 15, 2005 for the 1991 murders of Alex Hopps and James Greene in Spartanburg County.

On January 7, 1991, Longworth and accomplice David Rocheville robbed a Spartanburg movie theatre, shooting and killing employees Hopps and Greene. Police arrested both men, who later confessed to the crimes. Longworth and Rocheville were both convicted of armed robbery, kidnapping, and two counts of murder in separate trials. Rocheville was executed in December of 1999.

Longworth’s attorneys have raised several issues in his appeals, including evidence supporting claims of ineffective assistance of counsel. Longworth’s trial attorney represented both Longworth and his parents, resulting in a conflict of interest that allowed for the suppression of potentially important mitigating evidence. In interviews with her son’s attorney, Longworth’s mother mentioned a history of domestic violence and alcohol abuse while he was growing up.

However, in the interest of saving the family from publicly admitting their problems, which may have resulted in the loss of her husband’s job or her position as a foster parent, Mrs. Longworth requested that the information remain private. Longworth’s attorney agreed, and this information was not brought up at trial in an effort to spare her son’s life.

The ineffective assistance of counsel claim was expanded in Longworth’s appeals to include his attorney’s incompetence and inexperience through his failure to disclose Longworth’s use of cocaine at the time of the crime and his full family and childhood background.

Although the Fourth Circuit U.S. Court of Appeals maintained that these claims have no merit, they refused to review them due to a procedural matter. Longworth’s attorneys failed to raise these issues in his petition for certiorari to the South Carolina Supreme Court. Because the claims were not made at the state level before turning to the federal court system, the judges in the U.S. Court of Appeals found them to be procedurally barred from their review.

Spartanburg man executed for movie theater killings in 1991

By Michael Kerr - The Sumpter Item

AP April 15, 2005

In his final statement, a Spartanburg man convicted in the killings of two Upstate movie theater employees more than 14 years ago said he didn't pull the trigger, but he apologized to the victims' families. Richard Longworth, 36, died by lethal injection at 6:14 p.m. Friday.

In the statement read by attorney David Belser, Longworth said he would not ask the families of Alex Hopps and Todd Green for forgiveness, because he knew it wouldn't be granted. "I am morally and legally responsible for what happened," Longworth said in the statement. "I hope they also know how deeply, truly sorry I am for what I have done. I hope my death brings them the peace they deserve."

Green's mother and Hopps' father and sister witnessed the execution, the second stemming from a brutal double murder that Spartanburg residents still remember more than a decade later. Longworth stared at the ceiling, never turning his head to look at the witnesses through the barred window. Shortly after 6 p.m. he was given the lethal injection. His chest moved up and down rapidly for a minute or two and then all was still. The final chapter in a 14-year story was complete.

Longworth was the second of two men executed in the shooting deaths of 19-year-old Hopps and 24-year-old Green on Jan. 7, 1991. He lost a final appeal to the U.S. Supreme Court on Friday afternoon.

Longworth and his co-defendant David Rocheville decided to go to the WestGate Mall movie theater in Spartanburg where they used to work and rob it, prosecutors said. They dragged Hopps, an usher and University of South Carolina student, outside. Longworth pinned Hopps against a bar and Rocheville shot Hopps in the head. The pair convinced Green, a theater manager, to let them back inside. They ordered Green to empty the safe and forced him into a van. After driving away from the theater, Longworth stopped and ordered Green to get out, get on his knees and face forward. Rocheville then shot Green in the head. Rocheville was executed in 1999.

"I hope my family knows how much I love them, and how ashamed I am that I have tarnished their name," Longworth said in his statement. "For the last 14 years I have tried to live my life as cleanly and as honorably as I was raised." Longworth had a hamburger, french fries and chocolate milkshake for his final meal.

"I would just like to say that two young men, two bright shining stars of South Carolina are no longer with us," Hopps' sister, Caroline Short, said after Longworth's execution. "They had a future. It's hard to really say how much I love my brother ... He told me he loved me regularly." Todd was Mary Ann Green's only child. "I can't explain how hard it is to go along without him," she said, fighting back tears.

About ten people protested outside the Broad River Correctional Facility carrying signs denouncing the death penalty. Margaret Abbott said she's been protesting executions at the facility for ten years, and that she is a friend of Longworth's mother. "Execution is not a solution," Abbott said before Longworth was put to death. "It doesn't solve anything. It doesn't heal anybody. You've got victims on both sides."

Longworth Executed For Spartanburg Double Murder

TheCarolinaChannel.com

April 15, 2005

COLUMBIA -- A Spartanburg man convicted in the shooting deaths of two movie theater employees 14 years ago has put to death for the crime. Richard Longworth died by lethal injection shortly after 6:14 p.m. Friday evening

A three-judge panel with the 4th Circuit denied an appeal for a stay of execution filed by Longworth's attorney, as did the U.S. Supreme Court.

Prosecutors said Longworth and David Rocheville dragged 19-year-old Alex Hopps outside of the movie theater and Rocheville shot him in the head. Longworth and Rocheville then ordered 24-year-old Todd Greene to empty the safe and forced him into their van. Rocheville later shot Greene in the head. Rocheville was executed in 1999.

State to Execute 1991 Cinema Murderer

WHNS-FOXTV

Monday, April 11, 2005

A convicted killer in the 1991 cinema murders will die this week by lethal injection. Sunday night, one victim's father says death is the only punishment, but he wishes his son's killer would die in pain. At 6:00 p.m. Friday there will be one less person on South Carolina's death row and for some it couldn't come any sooner.

January 1991. Richard Longworth and David Rocheville carry out a robbery they planned well in advance. The target, Westgate Cinemas in Spartanburg County. Longworth and Rocheville thought they might have to kill, they just didn't know who would take their bullets.

Alec Hopps, the father of one of the victims says, “I don’t think there’s a day that goes by I don’t think about my son.” Their first victim was Alec Hopps' only son, who bares the same name. Longworth and Rocheville held the 19-year-old USC student against his will and forced him outside, where they shot him in the head with .44 caliber handgun. After stealing the cash in the safe, the two convicted murderers forced another man, Todd Green, in a van and drove to Inman where they killed him too. “It gets more simple in how you deal with it you sort of shut it to the back of your mind but it comes back again,” says Alec.

After 14 years Alec’s death doesn't get any easier, but this Friday it will. Both of Alec's son's killers will be dead. Alec watched as Rocheville died by lethal injection in 1997. This week, it's Longworth's turn. And Alec will watch with satisfaction as a medical team injects the deadly serum. Alec says, “Garbage. He’s a killer and he deserves everything he gets as a consequence of what he did. All this happened because of what he did and that doesn’t take away anything. I have no sympathy whatsoever.”

In fact, Alec feels Longworth is getting off easy. Death with the prick of a needle pales in comparison to a bullet in the head. “My son didn’t die a simple peaceful death. He knew where he was going and so did Green. This guy has had 14 years. Hopefully this week he'll be thinking about what he did and what's going to happen on Friday.”

Alec would prefer the killer die sitting in the electric chair but South Carolina law allows the convicted to opt for a deadly needle. The last person to die in the chair was last year. And in the last two decades 32 people in South Carolina were executed.

Defendant was convicted in the Circuit Court, Spartanburg County, E.C. Burnett, III, J., of kidnapping, armed robbery, and two counts of murder, and was sentenced to death. Defendant appealed. The Supreme Court, Moore, J., held that: (1) trial court did not abuse discretion in transferring jury to county in which indictment was returned following jury's selection in another county; (2) defendant was not prejudiced when voir dire of two veniremen was limited, since defendant exercised two of his peremptory strikes to remove them; and (3) disallowing defendant's argument regarding general deterrence resulted in no fundamental unfairness where trial judge permitted neither solicitor nor defendant to argue general deterrence. Affirmed. Finney, J., dissented with statement.

MOORE, Justice: Appellant was convicted of kidnapping, armed robbery, and two counts of murder in connection with the deaths of Alex Hopps and James Todd Greene, employees of the Westgate Mall Cinema in Spartanburg. Appellant was sentenced to death for the murders and kidnapping plus twenty-five years for armed robbery. Appellant's co-defendant, David Rocheville, was convicted in a separate trial and sentenced to death. See State v. Rocheville, 310 S.C. 20, 425 S.E.2d 32 (1993). We affirm.

* * *

The murders in this case occurred on the night of January 7, 1991. An off-duty employee, David Hopkins, returned to the Westgate Mall Cinema and found no employees present although films were still being shown. The body of nineteen-year-old Alex Hopps was discovered behind the theatre outside an exit door. He had been shot at close range in the left temple.

When Hopkins arrived at the theatre he had seen and recognized appellant's co-defendant, David Rocheville, rummaging through James Greene's car in the parking lot. Both appellant and Rocheville were former employees of the theatre owner. Greene was the other employee on duty with Alex Hopps and he was missing from the theatre. Police arrested Rocheville at 5:00 a.m. the next morning. A few hours later, Rocheville led police to the body of James Greene which was found in a shallow ditch on the side of a rural road several miles from the cinema. Appellant was arrested later that day.

Appellant consented to be interviewed by police officers after waiving his rights. At the end of the interview, Chief Murray prepared the following statement from his notes:

[Longworth] stated that on January 7, 1991, he left his home at approximately four o'clock p.m. in route to meet his friend, David Rocheville, at a television repair shop where Rocheville worked. After meeting him, they both traveled to Rocheville's home in Duncan, South Carolina where Rocheville cleaned up. They left there in Longworth's mini van that is actually owned by his father in route to the Continental Cafe located in the Hillcrest Mall in Spartanburg.

They arrived there at approximately 7:30 p.m. where he, Longworth, drank approximately six beers and three kamikazes. While there, they spoke to a bartender by the name of Larry, last name unknown, who works there and knows them. After leaving the cafe, he and Rocheville drove around town in the mini van for a short time, and eventually stopped at an unknown place between Hillcrest and West Gate where they purchased a twelve pack of beer. They continued driving around all the while drinking beer, and decided to rob the West Gate Cinema.

They arrived at the West Gate Theatre at an unknown time. But he knows it was before twelve o'clock midnight. Upon entering the theatre, Longworth remembered seeing James Greene, an employee, and, in fact, waved to him. Longworth and Rocheville walked around inside the theater for a short time, and believed the two of them went inside where the movie Dances with Wolves was playing. Longworth remembers that when they entered the theater through the front door, there was no one in the ticket booth. And accordingly, they walked in without having to pay.

After being seated in the theater for a short time, they decided it was time to rob the place. As they walked out toward the lobby of the theater, Longworth saw the usher, Alex Hopps, standing near the end of a counter. He went over to him, and they started walking down a hallway talking. His plan was to take the usher outside and knock him unconscious. As they walked down the hallway, he knocked the usher to the floor by sweeping his feet out from under him.

He then immediately jumped on him, and placed his hands over the usher's mouth. Rocheville, who had been given the gun that Longworth had carried into the theater in a shoulder holster hidden under his coat, was watching the activity. As Longworth and the usher walked outside using a side exit near where he and Rocheville had been seated in the theater, they were followed by Rocheville.

Once outside, Longworth stated that he grabbed the usher by the right arm and twisted it up behind his back. He then forced the usher to lean over a waist high bar that was in place to, to protect the building or a cooling unit, and then took his left hand pushing the usher or pinning him on the bar. Rocheville then shot the usher in the left side of the head while Longworth was holding him. The weapon used and the one which Longworth earlier had given to him is [a] .44 magnum Ruger, and it was loaded with semi wod cutters.

After the shooting, Rocheville returned the weapon to Longworth, and he placed it in the aforementioned shoulder *369 holster. **224 Longworth stated that he did not know the usher although it was pointed out to him that the usher had at one time worked for him at the Converse Theaters when Longworth was an assistant manager. After the shooting, Longworth advised that he and Rocheville walked around to the front of the theater to proceed with the robbery. However, when they arrived at the front, the doors were locked.

Longworth stated that he again saw James Greene, and motioned to him to open the doors. Greene complied. Once inside, Longworth stated that he drew this same gun on Greene, and stated something to the effect that he was sorry. But he was going to rob the theater. And requested that Greene open the safe. Greene, upon seeing the gun, became so nervous that it took him three tries to successfully open the safe.

Longworth took several money bags from the safe, and then asked Greene if he had made the deposits. Greene responded yes, and Longworth stated don't lie to me. Greene stated that the deposits were in his personal car. The three of them, Longworth, Greene, and Rocheville then walked to Greene's vehicle parked at the side of the cinema, obtained the remaining money bags, and gave them all to Rocheville. They then all got into the aforementioned mini van, which was parked next to Greene's vehicle. Longworth was driving. Rocheville was in the back. And Greene was seated in the passenger side.

Longworth stated that he then gave the .44 magnum Ruger to Rocheville, and stated if he moves shoot him referring to Greene. The three of them then proceed to drive up highway number 176 toward Inman, and then turned right off number 176 onto an unknown road.

They drove a short distance and stopped the van. Longworth then told Greene to get out of the van, walk five paces, get down on your knees, and stare straight ahead. He did as instructed. And at this point, Rocheville got partially out of the van perhaps with one foot on the ground and the other in the van, and shot Greene in the back of the head. Greene then rolled over into the ditch near where he had been kneeling. . . . . [Longworth] did mention that he initially told James Greene that he would not hurt him, and that he was going to let him out in a field unharmed. He stated that Greene apparently did not believe him as he pleaded for them not to hurt him, and assured them that he would not identify them. He just wanted to live so that he could see his girlfriend.

At one point during the interview, Longworth slammed his fist on the table, and exclaimed my god we killed those kids for fifteen hundred dollars. When asked to sign this statement, appellant declined saying he wanted an attorney to read it first. The statement was admitted at trial during Chief Murray's testimony. The Solicitor then asked Murray if he recalled anything else not included in the statement and Murray responded:

A. Yes, sir, I do recall at one point during the interview he said that something to the effect that no one was suppose to be killed or was not intended that anyone get killed.
Q. Uh-huh. (Affirmative)
A. And, and one other thing that, that he had mentioned was that when he had taken Alex outside and put him over the bar, he observed Rocheville raising the gun up to Alex's head, and he did nothing to stop him. He just watched him.
Q. Who did nothing to stop him?
A. Longworth did nothing to stop him.
Q. Did he say he knew what was happening?
A. He said he knew what was going to happen.
Q. All right, sir.
A. But he did nothing to stop him.

Appellant objected and the trial judge sent the jury out. Appellant then complained he had never received notice of any statement to the effect that he knew what was going to happen before Rocheville killed Alex Hopps. The trial judge questioned Chief Murray himself and determined that such a statement was not included in Murray's notes. The trial judge then called the jury back and gave the following instruction:

THE COURT: Now, Mr. Foreman, and ladies and gentlemen, the, during the testimony that was being presented, the defense counsel objected properly. You had heard testimony from the statement by Chief Murray that the defendant says I saw Rocheville with the gun, and I did nothing to stop it. That's part of the statement. The solicitor went on to say did Longworth say I knew what, he knew what was going to happen. And Chief Murray says yes, he says he knew what was going to happen. And that's not true. And that's not in the statement.

And I have conferred with Chief Murray here in this courtroom on the record. And that is his interpretation. That is not a statement by the defendant. I must ask you to disregard that, to wipe that comment from your mind. It is improper thing to be injected into this trial, and you disregard it entirely please. It is so important. The only statement made was I saw Rocheville, and I did nothing to stop him. And that's the end of it as best I can tell. Disregard anything further from Chief Murray on that point as I have outlined to you. All right. Thank you.

* * *

Background: Following affirmance of his kidnapping, armed robbery, and murder convictions and death sentence, 438 S.E.2d 219, petitioner sought writ of habeas corpus.
Holdings: The District Court, Blatt, Senior District Judge, held that:
(1) petitioner's claim that trial and appellate counsel were ineffective was procedurally defaulted because it was not fully raised and adjudicated on appeal from post-conviction proceedings in a capital case, and petitioner's asserted "cause" for excusing the procedural default, his appellate counsel's ineffectiveness, was procedurally defaulted as well;
(2) failure to review habeas petitioner's procedurally defaulted ineffective counsel claim would not constitute a "fundamental miscarriage of justice;"
(3) government's failure to disclose that petitioner expressed remorse over the murders did not constitute a Brady violation entitling him to habeas relief; and
(4) petitioner was not prejudiced by petitioner's counsel's representation of both petitioner and petitioner's parents, who were not charged with any crime. Petition denied.

BLATT, Senior District Judge.

INTRODUCTION

The Petitioner is an inmate under a sentence of death which was entered by the Court of General Sessions for Spartanburg County on September 10, 1991. He has filed this petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254. [FN1] *538 For the reasons that follow, the petition for writ of habeas corpus is denied. FN1. The caption of this case was originally Longworth v. Maynard and Condon. However, since the filing of this action, Jon E. Ozmint has succeeded Gary D. Maynard as Commissioner of the South Carolina Department of Corrections, and Henry D. McMaster has succeeded Charles Condon as Attorney General of the State of South Carolina. The parties have not requested a change in the caption, but have noted the new officers in all pleadings and motions filed since March 2003.

BACKGROUND AND PROCEDURAL HISTORY

As described by the Supreme Court of South Carolina on direct appeal, see State v. Longworth, 313 S.C. 360, 438 S.E.2d 219 (1993), the underlying facts of this case are as follows:

[Longworth] was convicted of kidnapping, armed robbery, and two counts of murder in connection with the deaths of Alex Hopps and James Todd Greene, employees of the Westgate Mall Cinema in Spartanburg. [Longworth] was sentenced to death for the murders and kidnapping plus twenty-five years for armed robbery. [Longworth's] co-defendant, David Rocheville, was convicted in a separate trial and sentenced to death. See State v. Rocheville, [310 S.C. 20,] 425 S.E.2d 32 (1993).

The murders in this case occurred on the night of January 7, 1991. An off-duty employee, David Hopkins, returned to the Westgate Mall Cinema and found no employees present although films were still being shown. The body of nineteen- year-old Alex Hopps was discovered behind the theatre outside an exit door. He had been shot at close range in the left temple. When Hopkins arrived at the theatre he had seen and recognized [Longworth's] co-defendant, David Rocheville, rummaging through James Greene's car in the parking lot. Greene was the other employee on duty with Alex Hopps and he was missing from the theatre. Police arrested Rocheville at 5:00 a.m. the next morning. A few hours later, Rocheville led police to the body of James Greene which was found in a shallow ditch on the side of a rural road several miles from the cinema. [Longworth] was arrested later that day. Both [Longworth] and Rocheville were former employees of the theatre owner.

[Longworth] consented to be interviewed by police officers after waiving his rights. At the end of the interview, Chief [Deputy James] Murray prepared the following statement from his notes:

[Longworth] stated that on January 7, 1991, he left his home at approximately four o'clock p.m. in route to meet his friend, David Rocheville, at a television repair shop where Rocheville worked. After meeting him, they both traveled to Rocheville's home in Duncan, South Carolina where Rocheville cleaned up. They left there in Longworth's mini van that is actually owned by his father in route to the Continental Café located in the Hillcrest Mall in Spartanburg.

They arrived there at approximately 7:30 p.m. where he, Longworth, drank approximately six beers and three kamikazes. While there, they spoke to a bartender by the name of Larry, last name unknown, who works there and knows them. After leaving the café, he and Rocheville drove around town in the mini van for a short time, and eventually stopped at an unknown place between Hillcrest and West Gate where they purchased a twelve pack of beer. They continued driving around all the while drinking beer, and decided to rob the West Gate Cinema.

They arrived at the West Gate Theatre at an unknown time. But he knows it was before twelve o'clock midnight. Upon entering the theatre, Longworth remembered seeing James Greene, an employee, and, in fact, waved to him. Longworth and Rocheville walked around inside the theater for a short time, and believed the two of them went inside where the movie Dances with Wolves was playing. Longworth remembers that when they entered the theater through the front door, there was no one in the ticket booth. And accordingly, they walked in without having to pay.

After being seated in the theater for a short time, they decided it was time to rob the place. As they walked out toward the lobby of the theater, Longworth saw the usher, Alex Hopps, standing near the end of a counter. He went over to him, and they started walking down a hallway talking. His plan was to take the usher outside and knock him unconscious.

As they walked down the hallway, he knocked the usher to the floor by sweeping his feet out from under him. He then immediately jumped on him, and placed his hands over the usher's mouth. Rocheville, who had been given the gun that Longworth had carried into the theater in a shoulder holster hidden under his coat, was watching the activity. As Longworth and the usher walked outside using a side exit near where he and Rocheville had been seated in the theater, they were followed by Rocheville.

Once outside, Longworth stated that he grabbed the usher by the right arm and twisted it up behind his back. He then forced the usher to lean over a waist high bar that was in place to, to protect the building or a cooling unit, and then took his left hand pushing the usher or pinning him on the bar. Rocheville then shot the usher in the left side of the head while Longworth was holding him. The weapon used and the one which Longworth earlier had given to him is [a] .44 magnum Ruger, and it was loaded with semi wod cutters.

After the shooting, Rocheville returned the weapon to Longworth, and he placed it in the aforementioned shoulder holster. Longworth stated that he did not know the usher although it was pointed out to him that the usher had at one time worked for him at the Converse Theaters when Longworth was an assistant manager. After the shooting, Longworth advised that he and Rocheville walked around to the front of the theater to proceed with the robbery. However, when they arrived at the front, the doors were locked.

Longworth stated that he again saw James Greene, and motioned to him to open the doors. Greene complied. Once inside, Longworth stated that he drew this same gun on Greene, and stated something to the effect that he was sorry. But he was going to rob the theater. And requested that Greene open the safe. Greene, upon seeing the gun, became so nervous that it took him three tries to successfully open the safe.

Longworth took several money bags from the safe, and then asked Greene if he had made the deposits. Greene responded yes, and Longworth stated don't lie to me. Greene stated that the deposits were in his personal car. The three of them, Longworth, Greene, and Rocheville then walked to Greene's vehicle parked at the side of the cinema, obtained the remaining money bags, and gave them all to Rocheville. They then all got into the aforementioned mini van, which was *540 parked next to Greene's vehicle. Longworth was driving. Rocheville was in the back. And Greene was seated in the passenger side.

Longworth stated that he then gave the .44 magnum Ruger to Rocheville, and stated if he moves shoot him referring to Greene. The three of them then proceed to drive up highway number 176 toward Inman, and then turned right off number 176 onto an unknown road. They drove a short distance and stopped the van. Longworth then told Greene to get out of the van, walk five paces, get down on your knees, and stare straight ahead. He did as instructed. And at this point, Rocheville got partially out of the van perhaps with one foot on the ground and the other in the van, and shot Greene in the back of the head. Greene then rolled over into the ditch near where he had been kneeling. Id. at 220, 222-24 (footnotes included but renumbered).

After the South Carolina Supreme Court rejected the appeal, id. at 225-26, and the United States Supreme Court denied certiorari, Longworth v. South Carolina, 513 U.S. 831, 115 S.Ct. 105, 130 L.Ed.2d 53 (1994), the Petitioner filed an application for state post-conviction relief (PCR). The state PCR court permitted discovery and held a lengthy evidentiary hearing. After requesting supplemental briefs, the PCR court directed the Respondents to submit a proposed order, which was substantially adopted by the PCR court in denying relief. The Supreme Court of South Carolina denied review.

The Petitioner then filed the instant petition for federal habeas relief, challenging his conviction and sentence on nineteen grounds. This Court stayed the Petitioner's scheduled execution in March, 2002, in order that his petition could be fully and completely evaluated. By local rule, this matter was referred to United States Magistrate Judge Joseph R. McCrorey for preliminary determinations. The Petitioner filed a substantive brief, to which the Respondents filed a motion for summary judgment. The Petitioner then filed a reply to the motion and requested partial summary judgment or, in the alternative, an evidentiary hearing on one of the grounds presented.

On June 6, 2003, the Magistrate Judge issued a report analyzing the issues presented and recommending that the Respondent's motion for summary judgment be granted, that the Petitioner's motion and request be denied, and that the petition for writ of habeas corpus be denied. The Petitioner filed objections to the report and recommendation on June 30, 2003, to which the Respondents have not responded. The matter is now ripe for decision.

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CONCLUSION

Background: Following affirmance of his conviction and death sentence, 313 S.C. 360, 438 S.E.2d 219, and denial of postconviction relief, petitioner sought habeas corpus review. After relief was denied, 302 F.Supp.2d 535, petitioner sought certificate of appealability (COA).

Background: After petitioner's convictions for murder, kidnapping, and armed robbery and sentence of death were affirmed on appeal, 313 S.C. 360, 438 S.E.2d 219, and his petition for postconviction relief was denied, petitioner sought writ of habeas corpus. The United States District Court for the District of South Carolina, Solomon Blatt, Jr., J., denied petition and granted certificate of appealability.

Holdings: The Court of Appeals, Niemeyer, Circuit Judge, held that:
(1) retained counsel did not have a conflict of interest because he represented petitioner's parents as well as petitioner;
(2) even if retained counsel had conflict of interest, petitioner did not show how anything that retained counsel did on his behalf compromised his interest or prejudiced his representation;
(3) state post-conviction relief court acted reasonably in concluding that deputy's statement that petitioner knew what was going to happen was not false; and
(4) deputy's mental impression that defendant expressed remorse during post-arrest interview was not Brady material that had to be disclosed to defendant. Affirmed.

NIEMEYER, Circuit Judge:

In 1991, Richard Longworth was convicted in a South Carolina state court for the murders of Alex Hopps and James Greene, employees of a Spartanburg, South Carolina movie theater that Longworth and an associate robbed. Longworth was sentenced to death. Following direct appeals and petitions for post-conviction relief in state courts, Longworth filed this petition in the district court for a writ of habeas corpus, under 28 U.S.C. § 2254, raising 19 grounds in support of his petition. The district court denied Longworth's petition but granted a certificate of appealability with respect to ground 4 (that the State presented "knowingly false" testimony of a deputy sheriff), ground 11 (that one of Longworth's attorneys had an actual conflict of interest), ground 15 (that the State failed to disclose to Longworth exculpatory evidence of a deputy sheriff who believed that before trial Longworth had expressed remorse), and ground 19 (that Longworth was, for numerous reasons, deprived of the effective assistance of counsel).

We affirm. We conclude, with respect to grounds 4, 11, and 15, that the state court's post-conviction relief decision rejecting these claims was neither contrary to clearly established federal law, as determined by the U.S. Supreme Court, nor involved an unreasonable application of that law, and that the state court's decision did not involve an unreasonable determination of the facts before it. And with respect to ground 19, we conclude that it was procedurally defaulted.

In the evening of January 7, 1991, Longworth and his friend David Rocheville decided, while driving around in their minivan, to rob the WestGate Mall Cinema in Spartanburg, South Carolina. After entering the theater, Longworth took his handgun from his shoulder holster and gave it to Rocheville, and the two viewed a movie for a short time. The two then proceeded into the lobby to implement their plan to rob the theater of money located in the ticket booth.

When they encountered an usher, Alex Hopps, walking down the hallway, Longworth knocked Hopps down, jumped on him, held his hand over Hopps' mouth, and dragged him outside of the theater through the side exit. As Longworth pinned Hopps against a waist-high bar that protected the air conditioning unit, Rocheville shot Hopps in the left side of the head. Rocheville then returned the gun to Longworth, who placed it back in his shoulder holster.

To reenter the theater, Longworth and Rocheville walked around to the front of the cinema and found the front doors locked. They motioned to James Greene, a cinema employee to whom they had waved when they initially entered the theater, and Greene opened the door. At that point, Longworth drew his gun and demanded that Greene open the safe in the ticket booth. Longworth took several money bags from the safe and ascertained from Greene that there were more bags in Greene's automobile, ready for deposit.

After retrieving those bags, Longworth and Rocheville forced Greene into their minivan, which Longworth drove. Longworth again handed his gun to Rocheville and instructed him to shoot Greene if he moved. After driving away from the theater, Longworth stopped the vehicle and instructed Greene to get out, walk five paces, get on his knees, and stare straight ahead. At that point, Rocheville shot Greene in the back of the head.

Longworth and Rocheville were arrested the next day, after Rocheville had led law enforcement officers to Greene's body. After Longworth was arrested, he provided officers with a detailed state-ment of the crimes that he and Rocheville had committed. Each was indicted on two counts of murder, one count of kidnapping, and one count of armed robbery. Separate juries convicted them and sentenced them to death.

The South Carolina Supreme Court affirmed the convictions and sentences on direct appeal. State v. Longworth, 313 S.C. 360, 438 S.E.2d 219 (1993); State v. Rocheville, 310 S.C. 20, 425 S.E.2d 32 (1993). Longworth's petition to the U.S. Supreme Court was denied. Longworth v. South Carolina, 513 U.S. 831, 115 S.Ct. 105, 130 L.Ed.2d 53 (1994).

In December 1994, Longworth filed an application for post-conviction relief in the Spartanburg County Court of Common Pleas, ultimately raising more than 30 grounds for relief. The state post-conviction court ("State PCR Court") permitted discovery and held a lengthy evidentiary hearing, after which it requested supplemental briefing from both parties and directed the State to submit a proposed order. The State PCR Court denied all of Longworth's claims for relief and substantially adopted the State's proposed 132-page order. Longworth v. Evatt, C.A. No. 95-CP-42 0014 (S.C.Ct. C.P. Aug. 3, 2000). The South Carolina Supreme Court denied Longworth's petition for review, and the U.S. Supreme Court denied Longworth's petition for a writ of certiorari. Longworth v. South Carolina, 536 U.S. 928, 122 S.Ct. 2599, 153 L.Ed.2d 787 (2002).

Longworth then filed the petition in this case, raising 19 grounds for relief. On 15 of the grounds, Longworth did not object to the magistrate judge's recommendations to deny the claims, and, as a result, the district court adopted the magistrate judge's recommendations and denied the claims. Longworth v. Ozmint, 302 F.Supp.2d 535, 542 (D.S.C.2003).

On the remaining four grounds (grounds 4, 11, 15, and 19), the court held that ground 19 (Longworth's general claim for ineffective assistance of counsel) was procedurally defaulted and that the remaining three grounds lacked merit. Id. at 542-69. With respect to all four grounds, the district court granted a certificate of appealability pursuant to 28 U.S.C. § 2253(c). Longworth v. Ozmint, 302 F.Supp.2d 569, 575 (D.S.C.2004). This appeal followed.

In his most substantial argument (ground 11), Longworth contends that he was denied his Sixth Amendment guarantee of effective assistance of counsel because his attorney Hubert Powell represented both Longworth and Longworth's parents and therefore labored under an actual conflict of interest that adversely affected his representation. Longworth contends:

The conflict was manifested by: 1) Powell's failure to disclose to co- counsel, defense experts or the jury mitigation evidence concerning family alcoholism and turmoil, which would have adversely affected his clients, petitioner's parents, but would have benefitted petitioner, and [Powell's failure to] develop mitigation evidence, 2) Powell's duty to protect the parents' income stream for their benefit and his own benefit, by concealing evidence of [Longworth's] parents['] alcoholism and marital discord[,] which would have cost the parents their jobs, 3) Powell's duty to protect the parents as material witnesses and/or as suspects, and 4) all other relevant facts....

Following Longworth's arrest, his parents hired Powell to represent Longworth in his capital murder trial, agreeing to pay Powell $12,000 in attorneys fees. On Powell's request for additional resources with which to represent Longworth, the state trial court appointed private attorney Andrew J. Johnston and the Spartanburg County Public Defender Office as additional counsel to "represent Richard W. Longworth ... along with Hubert H. Powell, Jr. of the Spartanburg County Bar who[ ] has been retained by the parents of Richard W. Longworth." (Emphasis added).

Three days later, however, the same trial court amended its order on the initiation of the Public Defender Office to "clarify" that "Hubert H. Powell, Jr. of the Spartanburg County Bar has the position of attorney for the parents of the Defendant, Richard W. Longworth." This clarification was initiated without any request by Longworth, his parents, or Powell and without their knowledge.

The apparent purpose of seeking the revised order was to make Longworth eligible for public funds to support his defense. According to Powell, he only learned of the amended order shortly before trial. He nevertheless continued to participate as a member of the defense team for Longworth and continued to prepare for trial, acting as a liaison with Longworth's family and doing substantial work on the development of mitigation evidence for the sentencing phase of the trial.

At the State PCR hearing, Longworth's mother testified that she had told Powell about alcohol abuse and domestic violence within the family and that she did not want such evidence to come out during sentencing "unless it was absolutely necessary," for fear that her foster children would be taken away and Longworth's father might lose his job. Longworth accordingly contended in the State PCR Court that the mitigation evidence was incomplete and inadequate.

He pointed specifically to the testimony of Dr. David Raskin, a forensic psychiatrist, who explained in a deposition that his evaluation did not include certain information about domestic problems between Longworth's parents and that he had assumed that Longworth had grown up in "a stable, caring environment."

According to Raskin, information about alcohol abuse and violence "would have changed dramatically the way [he] did [his] interview" of Longworth and that he would have presented the new information about family environment to the jury.

As revealed during the PCR hearing, however, it turned out that it was co- counsel Andrew Johnston who provided Dr. Raskin with the relevant social history report on which Raskin relied. Johnston testified that he was aware of Longworth's social history and that if he failed to provide it to Dr. Raskin, it was an oversight.

Even though the social history report included little detail about drinking or marital problems in Longworth's household--Johnston conceded that he did not believe that the social worker did "that great of [a] job" in preparing the report--Mrs. Longworth testified that she did tell the social worker about the marital problems and excessive drinking. It was also Johnston, not Powell, who told Raskin that Longworth "came from a middle class background, that his family [members] were nice people, that they may have had some problems with alcohol abuse at times and there may have been a bit of marital discord in the house at times, but [that] the family history [was] unremarkable as far as explaining what happened later." And it was Johnston who led the development of Longworth's mitigation defense strategy. He testified at the State PCR hearing that he did not think that Longworth's family history was a key point to the case. Johnston explained that he made a strategic decision to focus the defense on (1) Longworth's history of substance abuse and intoxication at the time of the murders, and (2) Longworth's lesser role and Rocheville's influence over Longworth.

Following the State PCR hearing, the State PCR Court found that Longworth's parents hired Powell to represent Longworth and entered into a contract for that purpose. The court found that after he was retained, Powell contacted other lawyers for advice in handling capital cases and for the purpose of putting together a defense team. The court also found that after Powell spoke with Andrew Johnston and members of the Public Defender Office, he prepared a petition for a declaration of indigency and appointment of counsel and presented it to the trial court.

Accordingly, the trial court appointed Andrew Johnston and the Public Defender Office to represent Longworth, "along with" Powell. The State PCR Court found that subsequently, without Powell's apparent knowledge, Charles E. Sanders, a deputy Public Defender, prepared an amended order that included the statement that Powell "has the position of attorney for parents of the Defendant."

The State PCR Court found, however, that Powell did not know of Sanders' initiative or the revised order and that when he did learn of it, it did not affect his representation of Longworth. The court noted that Powell considered Richard Longworth "his 'true client' " and that he continued to represent Longworth, meeting with him 44 separate times and "probably more."

The court concluded, "It is undisputed that Powell considered his actual client to be [Longworth], and his interests were solely directed to saving his life." With respect to any potential differences of opinion on Powell's performance, the State PCR Court found "attorney Powell's testimony persuasive that he did not prevent any pertinent information of family background from being provided the defense- retained social worker, Dorothy Harmon, in order for her to complete a social history of [Longworth]." The State PCR Court concluded:

[T]here was no actual conflict interest in attorney Powell's role in the defense of Richard Longworth. Further, Powell's role in the representation of [Longworth] did not adversely affect the representation by attorneys Johnston or Dillard. Powell's role and interests did not diverge with respect to a material fact or legal issue or course of action on [Longworth's] behalf.

There is no credible evidence which tends to establish that any of [Longworth's] defense counsel engaged in any course of conduct which was designed to protect the Longworth family to the detriment of [Longworth's] interest. The evidence is persuasive that at all times attorney Powell considered the applicant his only client and his only obligation to [Longworth's] parents was to present the best defense possible for their son.

Based on the State PCR Court record, the district court concluded that there was no actual conflict of interest and that, although there was conflicting evidence as to whether family information was prevented from being disclosed, the State PCR Court's credibility determinations should not be disturbed. Deputy Murray, who participated in the post-arrest interrogation of Longworth, took notes of the interrogation and prepared a statement for Longworth to sign.

Even though Longworth refused to sign the statement, opting to have the advice of an attorney, Deputy Murray read the statement during trial as an accurate representation of what Longworth had said. After completing presentation of the statement, the State asked Deputy Murray whether he recalled any other remarks by Longworth that were not included in the statement.

Deputy Murray replied that Longworth "had mentioned ... that when he had taken Alex [Hopps] outside and put him over the bar, he observed Rocheville raising the gun up to Alex's head, and he did nothing to stop him. He just watched him." The State then asked, "Did [Longworth] say he knew what was happening?" Murray replied, Longworth "said he knew what was going to happen. ... But he did nothing to stop him." At that point, Longworth's counsel objected because the defense had never been made aware that Longworth had stated that he knew what was going to happen and such a statement was potentially important.

Following the objection, the court questioned Deputy Murray outside of the jury's presence, and Deputy Murray told the court that the alleged statement was a paraphrase, not a "quote per se." The court asked Deputy Murray directly, "Did [Longworth] say I knew what was gonna happen or is that your interpretation of the statement?" Deputy Murray responded, "I think that from what he said that was my interpretation of what he meant."

The court emphasized the important difference between a statement that Longworth saw Rocheville point the gun yet did nothing to stop him and a statement that he knew what was going to happen, and the court determined from Deputy Murray that the latter statement was not reflected in the deputy's notes. Accordingly, after recalling the jury, the court gave the following curative instruction to the jury:

You had heard testimony from the statement by Chief Murray that the defendant says I saw Rocheville with the gun, and I did nothing to stop it. That's part of the statement. The solicitor went on to say did Longworth say I knew what, he knew what was going to happen. And Chief Murray says yes, he says he knew what was going to happen. And that's not true. And that's not in the statement. And I have conferred with Chief Murray here in this courtroom on the record. And that is his interpretation.

That is not a statement by the defendant. I must ask you to disregard that, to wipe that comment from your mind. It is [an] improper thing to be injected into this trial, and you disregard it entirely please. It is so important. The only statement made was I saw Rocheville, and I did nothing to stop him. And that's the end of it as best as I can tell. Disregard anything further from Chief Murray on that point as I have outlined to you.

On direct appeal, the South Carolina Supreme Court held that the trial court's "curative instruction was clearly sufficient to ensure the jury did not attribute Chief Murray's statement to [Longworth]." Longworth, 438 S.E.2d at 225.

During the State PCR hearing, the state solicitor testified that he had met with Deputy Murray and another witness about one week before trial. At that time, Deputy Murray told him that Longworth said "something like" he knew or intended that the killings would take place. According to the solicitor, because such a statement was not recorded in Deputy Murray's notes, the solicitor told Deputy Murray that it was not sufficiently reliable and would not be used at trial.

The solicitor testified that he was surprised at trial when Deputy Murray testified that Longworth said he knew what was going to happen. The State PCR Court concluded that Deputy Murray's testimony at trial was not false, finding that his statement revealed his "honest, but vague, recollection that Longworth indicated to him during the interrogation that he knew what was going to happen, but was unable to recall the precise words used." The State PCR Court also concluded that the state trial court's curative instruction cured any prejudice that may have resulted from Deputy Murray's statement.

We agree with the district court's rejection of Longworth's contention that habeas relief is warranted on this ground. The State PCR Court acted reasonably in concluding from the facts before it that Deputy Murray's statement was not false. Longworth incorrectly insists that the state trial court explicitly found that the statement was knowingly false. The trial court in fact found that Longworth did not make the alleged statement but that it was Deputy Murray's "interpretation" of Longworth's statement. As the district court observed, "There is a clear distinction between (1) knowing a statement was not made but testifying that it was made, and (2) honestly believing that the statement was implicit in the words spoken but, because it was based on interpretation, the statement is inadmissible." Longworth, 302 F.Supp.2d at 557.

At trial, when questioned by the state trial court, Deputy Murray stated that, although "not verbatim" and not "a quote per se," the statement he attributed to Longworth was Deputy Murray's interpretation of Longworth's words. At the State PCR hearing, Deputy Murray testified repeatedly that his response at trial was a true statement, that it was what he thought Longworth meant (e.g., "What I was saying there was that I couldn't recall exactly what was being said [by Longworth, but that] [w]hatever he said, that's what I thought he meant"). The State PCR Court credited Deputy Murray's testimony on this matter, and we conclude that that was not an unreasonable determination of the facts.

In addition, to protect any potential prejudice, the state trial court gave a forceful curative instruction that instructed the jury not to consider the statement and told them that "that's not in the statement" attributable to Longworth. "The only statement made [by Longworth] was I saw Rocheville, and I did nothing to stop him."

The trial court also emphasized to the jurors that it was "so important" that they disregard the challenged testimony and that it was not Longworth's statement but Deputy Murray's interpretation. Reviewing this on appeal, the South Carolina Supreme Court concluded that "the curative instruction was clearly sufficient to ensure the jury did not attribute Chief Murray's statement to [Longworth]." Longworth, 438 S.E.2d at 225. And we conclude that the South Carolina Supreme Court's determination was not an unreasonable one.

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