Executed May 8, 2009 6:15 p.m. by Lethal Injection in South Carolina
25th murderer executed in U.S. in 2009
1161st murderer executed in U.S. since 1976
2nd murderer executed in South Carolina in 2009
42nd murderer executed in South Carolina since 1976
(Race/Sex/Age at Murder-Execution)
(Race/Sex/Age at Murder)
Thomas Treshawn Ivey
B / M / 18 - 34
W / M / 38
W / M / 30
State v. Ivey, 325 S.C. 137, 481 S.E.2d 125 (S.C. 1997) (Direct Appeal) (Harrison).
State v. Ivey, 331 S.C. 118, 502 S.E.2d 92 (S.C. 1998) (Direct Appeal) (Montgomery).
Ivey v. Ozmint, 304 Fed.Appx. 144 (4th Cir. 2008) (Habeas).
Pizza and donuts.
South Carolina Department of Corrections
Inmate: Ivey, Thomas T.
Date Received: 01/20/95
Trial Judge: L. Brown, Jr.
Charleston Post Courier"Double murderer put to death; Alabama man killed businessman, officer," by Meg Kinnard. (AP Saturday, May 9, 2009)
COLUMBIA — An Alabama man who broke out of jail 16 years ago and fatally shot a police officer and another man in the midst of a crime spree was executed by lethal injection Friday in South Carolina's death chamber. Thomas Treshawn Ivey, 34, of Union Springs, Ala., was pronounced dead at 6:15 p.m. He was put to death for killing Tommy Harrison, a 38-year-old Orangeburg police sergeant.
Ivey, whose bid for a stay was denied by the U.S. Supreme Court about an hour before he was put to death, made no final statement. He kept his eyes trained on the ceiling as the drugs were administered, blinking several times but never looking to his left, where several witnesses looked on. A few moments later he closed his eyes, exhaled several times and did not move again.
Earlier in the day, prison officials said Ivey used the blade from a disposable razor to cut himself on the neck. The wounds were not considered serious, and officials kept him strapped in a chair until he was brought to the death chamber. Ivey wore a white bandage on his neck, and he was clad in a white paper gown during the execution. Inmates usually wear a dark green prison uniform during executions. Several straps across his chest and over his shoulders and arms kept Ivey immobile.
Authorities said Ivey's crime spree began in January 1993, when he and another inmate escaped from the Barbour County Jail in Clayton, Ala., where Ivey was being held on a murder charge. Ivey and Vincent Neuman busted out of jail, stole a truck and drove to Columbia, Neuman's hometown.
There, authorities said the pair kidnapped businessman Robert Montgomery, who was working downtown with his janitorial service. Ivey and Neuman drove Montgomery to rural Orangeburg County. Neuman later testified that while there, Ivey shot Montgomery in the head and chest, killing him.
Two days later the pair visited a mall in Orangeburg, where a clerk accused them of trying to pass a stolen check. Harrison responded to the call but let Ivey go when he determined that it was Neuman who was trying to use the check. Ivey told police that a handgun in his pocket fired accidentally as he walked away, and the bullet ricocheted off the floor, hitting Harrison in the leg. Ivey said he then panicked and shot the officer five more times, according to court records.
Neuman, now 40, testified against Ivey and is serving a life sentence for murder. Ivey was convicted and sentenced to death for both murders, but Friday's execution was for Harrison's death.
Ivey is the 42nd person executed in South Carolina since the death penalty was reinstated in 1976.
Orangeburg Times and Democrat
"Ivey executed for officer's murder, by Lee Tant. (Saturday, May 09, 2009)
“Some people would come out here and say this is a day of closure. This is not closure. “We don’t have my brother back.” David Montgomery’s lips quivered and his face was filled with emotion as he spoke those words immediately following the execution of his brother’s killer, Thomas Treshawn Ivey.
Ivey, 34, murdered Orangeburg Department of Public Safety Sgt. Tommy Harrison and Columbia businessman Robert Montgomery during a 1993 crime spree. David Montgomery said his brother, Robert, has an 18-year-old who will start college next fall and a 16-year-old daughter he never got the chance to meet. “I knew this day was coming. It really hasn’t done much for me today as for making this the end of it. My focus has been on my brother. I miss him,” he said.
Montgomery noted he married his wife, Jackie, in October 1992, just months before Robert would met his demise at the hands of Ivey. He said that put what was supposed to be a happy time off to a tough start. He said the biggest relief to come from Friday is that his family won’t receive letters stating Ivey is appealing his execution anymore. Montgomery said one of those letters came in the mail just two days before Christmas one year. “I never had much of a beef with Mr. Ivey. I’d never sit up at night and think about it. I just consider him an animal,” he said.
The Harrison family declined to speak after the execution. But Harrison’s brother-in-law, T&D Staff Writer Richard Walker, attended the execution. “We agree with the sentence wholeheartedly. At this point, we no longer have to worry about Ivey receiving another appeal or hearing to review his case. Now, we can just focus on Tommy and Shaye (Harrison’s late wife) and their memory and Mr. Montgomery,” Walker said.
Before his execution Friday, Ivey was discovered in his cell with cuts on both sides on his neck. He apparently removed a blade from a disposable razor that he hid in his cell and cut himself. The injuries were treated by a doctor and Ivey was placed in a restraint chair. He was watched by S.C. Department of Corrections officials until his execution.
His final meal was pizza and donuts.
Inside the death chamber, a dark red curtain concealed Ivey while nine witnesses sat in wooden chairs with faded red padding, stoically staring straight ahead. When the curtain was lifted at 6 p.m., an eerily still Ivey was revealed. He was strapped to a gurney. A white sheet covered his body. Plastic tubes served as a conduit between Ivey and a black panel containing the lethal injection cocktail.
Three men wearing identical black suits with white dress shirts and dark ties were inside the death chamber with Ivey. Except for a few times, those men all clasped their hands together in front of their chests. One of them stepped forward to a microphone, bellowing out in a voice reminiscent of a hellfire-and-brimstone preacher. “Thomas Ivey has not elected not to make a last statement,” the man said.
Then the three-stage lethal injection began. Minutes later, Ivey would make one of his only two discernible movements during his final moments. His head briefly shot up. In the remaining 13 minutes of his life, Ivey maintained a laser-like focus upwards toward the ceiling. At one point, his breathing became visibly heavier.
The room was filled with a palpable tension that grew stronger with each passing second, leaving just the sound of three reporters occasionally flipping pages in their notebooks to break the silence. Orangeburg Department of Public Safety Chief Wendell Davis rested his hand against his face as he watched. Davis would later sit up in his chair and make a brief sigh before returning to that position. Several others in the room would follow Davis’ sigh with their own.
15 long minutes had passed. A doctor emerged from an adjoining room with a stethoscope. He checked to see if Ivey’s heart was still beating. After examining Ivey’s lifeless body, he motioned to the other men in the room. The man with the preacher-like voice proclaimed the execution sentence levied against Ivey by the state of South Carolina had been carried out. It was 6:15 p.m.
Augusta Chronicle"Alabama man executed for police shooting; Prisoner killed 2 men after escape." (Associated Press Saturday, May 09, 2009)
COLUMBIA --- An Alabama man who broke out of jail 16 years ago and fatally shot a police officer and another man in the midst of a crime spree was executed by lethal injection Friday in South Carolina's death chamber. He was put to death for killing Tommy Harrison, a 38-year-old Orangeburg police sergeant.
Mr. Ivey, whose bid for a stay was denied by the U.S. Supreme Court about an hour before he was put to death, made no final statement. Earlier in the day, prison officials say, Mr. Ivey used the blade from a disposable razor to cut his neck. The wounds weren't considered serious, and officials kept him strapped in a chair until he was brought to the death chamber.
Authorities say Mr. Ivey's crime spree began in January 1993, when he and another inmate escaped from Barbour County Jail in Clayton, Ala., where Mr. Ivey was being held on a murder charge. Mr. Ivey and Vincent Neuman stole a truck and drove to South Carolina, ending up in Mr. Neuman's hometown of Columbia. There, the pair kidnapped businessman Robert Montgomery, who was working downtown with his janitorial service.
Mr. Ivey and Mr. Neuman drove Mr. Montgomery to rural Orangeburg County. Mr. Neuman later testified that while there, Mr. Ivey shot Mr. Montgomery in the head and chest, leaving his body to be discovered by hunters. Two days later, the pair visited a mall in Orangeburg, where a clerk accused them of trying to pass a stolen check.
Sgt. Harrison responded to the call but let Mr. Ivey go when he realized Mr. Neuman was trying to use the check. Mr. Ivey told police a handgun in his pocket fired accidentally as he walked away, and the bullet ricocheted off the floor, hitting Sgt. Harrison in the leg. Mr. Ivey said he then panicked, shooting the officer five more times, according to court records.
Mr. Neuman, now 40, testified against Mr. Ivey and is serving a life sentence for murder in South Carolina. Mr. Ivey was convicted and sentenced to death for both murders, but Friday's execution was only for Sgt. Harrison's death.
David Montgomery, Mr. Montgomery's younger brother, said Mr. Ivey's execution didn't represent closure for the family but did bring some amount of solace. "This was just senseless, but I guess this is just a day of reckoning," said Mr. Montgomery, 40, who lives in Camden. "This is not closure. We don't have my brother back." Mr. Montgomery's parents, Marion and Jackie Montgomery, witnessed Mr. Ivey's execution but didn't speak to reporters afterward.
Mr. Ivey is the 42nd person executed in South Carolina since the death penalty was reinstated in 1976 and the 283rd in the state's history.
ProDeathPenalty.ComThomas Treshawn Ivey was sentenced to death for the murder of Robert Montgomery. In early January 1993, Thomas Ivey and Vincent Neuman escaped from a prison in Clayton, Alabama. Neuman testified that on January 13th, he and Ivey kidnapped Robert Montgomery in Columbia and drove him in his truck to the town of North, South Carolina. There, Ivey shot and killed Montgomery. Ivey and Neuman drove away in Montgomery's vehicle.
The next day, Ivey and Neuman stole another vehicle. In the vehicle were the owner's identification and some blank checks. On January 15th, Ivey, Neuman, and Patricia Perkins drove to Orangeburg in order to forge the blank checks. All three entered a Belk's store where Neuman wrote a check for the purchase of cologne and aftershave. Ivey left the store, but Neuman and Perkins continued to "shop." They tried to purchase certain items costing $279.30. When they tried to pay for the merchandise with a forged check, the clerk became suspicious and said she would have to have the check approved. Neuman left the store.
A store security guard called the police who arrived within a few minutes. Ivey, who had been outside, returned to the store to check on Perkins. A police officer and an investigator found Ivey and Perkins in the mall and questioned them; however, they told Ivey he was free to go when they realized that Neuman, not Ivey, was the person trying to pass the check. At that time, Orangeburg police officer Thomas Harrison arrived and began questioning Ivey. There was evidence that Ivey's .357 Magnum, which was in his left coat pocket, fired. The bullet hit the ground, ricocheted, and struck Officer Harrison. Ivey then pulled the gun out of his pocket and directly shot Officer Harrison five more times.
After the shooting, Ivey tried to escape. A few officers chased Ivey out of the mall, shooting at him as he zigzagged into the parking lot where he was finally arrested. Ivey gave a statement to the police admitting that he killed Officer Harrison. He stated that he had a gun in his left coat pocket. While he was talking with Officer Harrison, the gun accidently went off, and the shot hit the floor. "The officer jumped back, and he was going for his gun, and I just panicked, and I pulled it out and started shooting." Initially, Ivey said that he shot Officer Harrison because he was "scared," but later indicated that "I don't know why I shot the officer."
A forensic pathologist testified that the cause of death was two gunshot wounds to Officer's vital organs. In addition to other wounds, a wound, which exhibited the effects of a ricochet pattern, was found on Officer Harrison's right leg. A South Carolina Law Enforcement Department crime scene technician found a projectile or bullet had struck the floor near to where Ivey and Officer Harrison were standing. Moreover, there was evidence that Ivey's left coat pocket was blown out by a gunshot.
Ivey was indicted for murder and tried. A jury found Ivey guilty of the murder of Officer Harrison. The State sought the death penalty, relying on three aggravating circumstances: (1) The defendant by his act of murder knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person; (2) Thomas C. Harrison, a local law enforcement officer, was murdered during or because of the performance of his official duties; and (3) Two or more persons, including Thomas C. Harrison, were murdered by the defendant by one act or pursuant to one scheme or course of conduct. The jury was also instructed on four statutory mitigating circumstances and nine non-statutory mitigating circumstances. Finding the existence of the first two aggravating circumstances listed above, the jury recommended a sentence of death. The judge sentenced Ivey to death.
South Carolina Equal Justice Initiative
State v. Ivey, 325 S.C. 137, 481 S.E.2d 125 (S.C. 1997) (Direct Appeal).
Defendant was convicted of murder and sentenced to death, following jury trial in the Orangeburg County Circuit Court, Luke N. Brown, Jr., Special Judge. Defendant appealed. The Supreme Court, Moore, J., held that: (1) conduct of police officer in attempting to arrest defendant did not constitute legal provocation sufficient to justify jury instruction on voluntary manslaughter; (2) statement by defense counsel in response to prosecution's questioning of victim's mother was insufficient to preserve issue of allegedly improper admission of mother's testimony for appeal; (3) testimony of victim's mother was relevant and admissible; and (4) trial court's refusal to allow defense counsel to question potential jurors during voir dire as to their understanding of term “life imprisonment” was not abuse of discretion. Affirmed.
Thomas T. Ivey appeals his conviction for murder and his sentence of death. We affirm.
In early January 1993, Ivey and Vincent Neuman escaped from a prison in Clayton, Alabama. Neuman testified that on January 13th, he and Ivey kidnapped Robert Montgomery in Columbia and drove him in his truck to the town of North, South Carolina. There, Ivey shot and killed Montgomery. Ivey and Neuman drove away in Montgomery's vehicle. The next day, Ivey and Neuman stole another vehicle. In the vehicle were the owner's identification and some blank checks.
On January 15th, Ivey, Neuman, and Patricia Perkins drove to Orangeburg in order to forge the blank checks. All three entered a Belk's store where Neuman wrote a check for the purchase of cologne and aftershave. Ivey left the store, but Neuman and Perkins continued to “shop.” They tried to purchase certain items costing $279.30. When they tried to pay for the merchandise with a forged check, the clerk became suspicious and said she would have to have the check approved. Neuman left the store. A store security guard called the police who arrived within a few minutes. Ivey, who had been outside, returned to the store to check on Perkins.
A police officer and an investigator found Ivey and Perkins in the mall and questioned them; however, they told Ivey he was free to go when they realized that Neuman, not Ivey, was the person trying to pass the check. At that time, Orangeburg police officer Thomas Harrison (“Officer”) arrived and began questioning Ivey. There was evidence that Ivey's .357 Magnum, which was in his left coat pocket, fired. The bullet hit the ground, ricocheted, and struck Officer. Ivey then pulled the gun out of his pocket and directly shot Officer five more times. After the shooting, Ivey tried to escape. A few officers chased Ivey out of the mall, shooting at him as he zig-zagged into the parking lot where he was finally arrested.
Ivey gave a statement to the police admitting that he killed Officer. He stated that he had a gun in his left coat pocket. While he was talking with Officer, the gun accidently went off, and the shot hit the floor. “[T]he officer jumped back, and he was going for his gun, and I just panicked, and I pulled it out and started shooting.” Initially, Ivey said that he shot Officer because he was “scared,” but later indicated that “I don't know why I shot the officer.”
A forensic pathologist testified that the cause of death was two gunshot wounds to Officer's vital organs. In addition to other wounds, a wound, which exhibited the effects of a ricochet pattern, was found on Officer's right leg. A South Carolina Law Enforcement Department crime scene technician found a projectile or bullet had struck the floor near to where Ivey and Officer were standing. Moreover, there was evidence that Ivey's left coat pocket was blown out by a gunshot.
Ivey was indicted for murder and tried. A jury found Ivey guilty of the murder of Officer. The State sought the death penalty, relying on three aggravating circumstances: (1) The defendant by his act of murder knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person; (2) Thomas C. Harrison, a local law enforcement officer, was murdered during or because of the performance of his official duties; and (3) Two or more persons, including Thomas C. Harrison, were murdered by the defendant by one act or pursuant to one scheme or course of conduct. See S.C.Code Ann. § 16-3-20(C)(a)(3), (7), (9) (Supp.1995). The jury was also instructed on four statutory mitigating circumstances and nine non-statutory mitigating circumstances.
Finding the existence of the first two aggravating circumstances listed above, the jury recommended a sentence of death. The judge sentenced Ivey to death.
1. Did the trial court err in refusing to charge voluntary manslaughter? 2. Did the trial court err in allowing Officer's mother to imply that Ivey deserved to die, thereby violating Payne v. Tennessee and state law? 3. Did the trial court err in preventing the defense from ensuring that the jury had a correct understanding of what “life imprisonment” meant?
A. Voluntary Manslaughter
Ivey argues that the trial court erred in refusing an instruction on voluntary manslaughter. We disagree. Ivey contends that his gun went off accidentally: “... the male officer was standing beside me and the gun was in my left pocket on the inside; and I stuck my hand in there and the hammer was already cocked back, and it went off in my pocket when I had my hand on it.” He claims to have shot Officer as the latter was going for his gun: “... and the officer jumped back, and he was going for his gun, and I just panicked and I pulled it out and started shooting....” Ivey also said that he shot Officer because he “was scared.” He maintains that because he was in a state of fear and acting in response to Officer going for his gun, that these circumstances entitled him to a charge on voluntary manslaughter.
Voluntary manslaughter is the unlawful killing of a human being in sudden heat of passion upon a sufficient legal provocation. State v. Kornahrens, 290 S.C. 281, 350 S.E.2d 180 (1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1592, 94 L.Ed.2d 781 (1987). Heat of passion alone will not suffice to reduce murder to voluntary manslaughter. State v. Tyson, 283 S.C. 375, 323 S.E.2d 770 (1984), cert. denied, 471 U.S. 1006, 105 S.Ct. 1873, 85 L.Ed.2d 165 (1985). Where there are no actions by the deceased to constitute legal provocation, a charge on voluntary manslaughter is not required. See State v. Butler, 277 S.C. 452, 290 S.E.2d 1, cert. denied, 459 U.S. 932, 103 S.Ct. 242, 74 L.Ed.2d 191 (1982). The exercise of a legal right, no matter how offensive to another, is never in law deemed a provocation sufficient to justify or mitigate an act of violence. State v. Norris, 253 S.C. 31, 168 S.E.2d 564 (1969).
More specifically, State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981), states that a lawful arrest or detention in a lawful manner by an officer will not constitute an adequate provocation for heat of passion reducing the grade of the homicide to manslaughter; nor will other lawful acts of officers while in the discharge of their duties constitute adequate provocation. This is precisely the situation we have in the present case. Ivey does not argue, nor is there any evidence, that Officer acted in an unlawful manner in discharging his duties. Even when Ivey's version of the incident is accepted, we find that Officer, by going for his gun, was reacting to Ivey's accidental firing of the weapon. Officer obviously had the right to defend himself. Accordingly, because there was no evidence of sufficient legal provocation, Ivey was not entitled to a voluntary manslaughter charge.
B. Victim Impact
Ivey argues the trial court improperly allowed certain testimony by Officer's mother in violation of Payne v. Tennessee and State v. Johnson. We disagree because this argument fails on both procedural and substantive grounds.
Procedurally, this argument is barred because Ivey did not specifically object to the testimony. During the testimony of Officer's mother, Ivey's attorney interjected, “Your Honor, I sincerely apologize, but I think we're going out of the bounds now”; however, he did not raise a specific objection to her testimony. See State v. Tucker, 319 S.C. 425, 462 S.E.2d 263 (1995) (appellant objected generally to the introduction of any victim impact evidence, but did not object on specific grounds; therefore, the argument is procedurally barred), cert. denied, 516 U.S. 1080, 116 S.Ct. 789, 133 L.Ed.2d 739 (1996).
However, the argument also fails on the merits. In Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720, 736 (1991), the United States Supreme Court declared:
We thus hold that if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.
Citing Payne, this Court, in State v. Johnson, 306 S.C. 119, 410 S.E.2d 547 (1991), cert. denied, 503 U.S. 993, 112 S.Ct. 1691, 118 L.Ed.2d 404 (1992), rejected the defendant's argument that the solicitor improperly referred to the victim's family. During the penalty phase of that case, the defendant's sister testified that she would visit him at the penitentiary for Christmas. In response, the solicitor stated that the victim's family could not go to see him, but could only visit him at his grave. The Johnson Court found that the argument made by the solicitor was relevant to the jury's decision.
In State v. Rocheville, 310 S.C. 20, 425 S.E.2d 32, cert. denied, 508 U.S. 978, 113 S.Ct. 2978, 125 L.Ed.2d 675 (1993), the State called the victims' parents who testified about their families' reliance on their sons and the boys' dreams and aspirations. The Court rejected the defendant's argument that the statements were improperly admitted, and it reasoned that the evidence served the purpose of showing the specific harm committed by the defendant in the murders and merely portrayed the victims as unique individuals. Similarly, in Riddle v. State, 314 S.C. 1, 443 S.E.2d 557, cert. denied, 513 U.S. 1003, 115 S.Ct. 518, 130 L.Ed.2d 424 (1994), it was held that the testimony of the victim's stepdaughter was relevant to establishing the victim as a unique human being and to showing the specific harm committed by the defendant. The stepdaughter had testified about the victim's standing in the community, the victim's grandchildren, and the impact the crime personally had on stepdaughter.
Based on the above criteria, the testimony that Ivey contests was properly admitted. The testimony in dispute is as follows: Q: Could you tell us how your son's death has affected your life? A: Well, it's certainly left a big void in our lives. I mean, I don't know how to express it, you know, unless-I mean, it's just-We miss him terribly because of the constant relationship we had with him. He was the kind of person that was nearly always in a good mood. He could come by the house, and just the way he came; he'd say, ‘Hi, Mama; what's happening,’ or ‘How's it going’ or something like that; just always kind of could cheer us up a little bit and- Q: What the hardest part now about his death and the way he died? A: Well, when I think about the way he died, I can't help but feel sort of angry because I just feel like it was so useless. Mr. Johnson: Your honor, I sincerely apologize, but I think we're going out of the bounds now. The Court: All right, sir. I'll allow it. Go ahead. A: Somebody-this man who shot my son-said that he ran out of the store, and when he realized he was going to be arrested, he laid down on the ground and said, ‘Don't shoot; don't kill me; don't kill me.’ But he didn't think about that when my son was lying on the floor in front of him in the store saying ‘Don't do this; don't do this.’ And-well, it hurts. Q: Are there particular occasions that are worse than others? A: ....
Ivey contends that the statements by Officer's mother unmistakably implied that appellant should die for his crime: She told the jury that it was too late for mercy, that if appellant had wanted to live, he should have thought about that before he killed her son. We disagree. The above testimony simply demonstrates the uniqueness of the victim and the harm that the victim's family has suffered. Officer's mother was simply expressing her grief and pain. Under Payne and South Carolina precedents, such testimony was proper.
C. Jury's Understanding of “Life Imprisonment”
Finally, Ivey argues that the court erred by preventing the defense from ensuring that the jury had a correct understanding of the term “life imprisonment,” where the solicitor introduced considerations of early release and misled the jury about Ivey's future dangerousness to society, while depicting life imprisonment as a luxury vacation.
At oral argument, counsel for Ivey conceded that this argument is unpreserved. However, even if it were preserved, the argument does not succeed on the merits. Defense counsel wanted to ask prospective jurors the following question during voir dire: “What is their conception, their notion, about what life imprisonment means?” The trial court refused to allow the question. State v. Matthews, 296 S.C. 379, 373 S.E.2d 587 (1988), cert. denied, 489 U.S. 1091, 109 S.Ct. 1559, 103 L.Ed.2d 861 (1989) is dispositive on this issue. In that case, we held the trial judge did not abuse his discretion in refusing to allow the defendant to ask prospective jurors on voir dire “what a life sentence meant to them.” Defendant had proposed the question to expose those potential jurors with “misconceptions” about the parole eligibility of a murderer sentenced to life imprisonment. Matthews held that the defendant had shown neither abuse nor prejudice and that the trial court's jury instructions had properly conveyed the meaning of “life sentence”: “These terms of life imprisonment and the death penalty should be understood in their ordinary and plain meaning by you.” Id. at 383, 373 S.E.2d at 590. The case stated that defendant was not entitled to probe potential jurors' misconceptions on this point of law.
The question in the present case is nearly exactly the same as that which was asked in Matthews. In addition, the trial court in this case also charged the jury on the meaning of life imprisonment: “I instruct you that when considering the two possible sentences, that is life imprisonment means life imprisonment, and death penalty means the death penalty.” Ivey makes no attempt to distinguish Matthews.
D. Proportionality Review
We have conducted a proportionality review pursuant to S.C.Code Ann. § 16-3-25 (1985). The sentence in this case was not the result of passion, prejudice, or other arbitrary factors, and the evidence supports the jury's finding of aggravating circumstances. The sentence is not excessive or disproportionate to the penalty imposed in similar cases. See State v. South, 285 S.C. 529, 331 S.E.2d 775 (officer shot and killed by defendant in drive-by shooting), cert. denied, 474 U.S. 888, 106 S.Ct. 209, 88 L.Ed.2d 178 (1985); State v. Young, 319 S.C. 33, 459 S.E.2d 84 (1995) (victim killed in the course of a robbery), cert. denied, 516 U.S. 1051, 116 S.Ct. 718, 133 L.Ed.2d 671 (1996).
State v. Ivey, 331 S.C. 118, 502 S.E.2d 92 (S.C. 1998) (Direct Appeal) (Montgomery).
Defendant was convicted in the Circuit Court, Orangeburg County, Charles W. Whetstone, Jr., J., of capital murder, kidnapping and armed robbery. Defendant's direct appeal was consolidated with mandatory review. The Supreme Court, Burnett, J., held that: (1) defendant's request to ask additional questions of juror was untimely; (2) statutes regarding scope of voir dire and granting capital defendant right to examine jurors did not apply; (3) juror who knew individual who allegedly loaned murder weapon to defendant's accomplice could be allowed to remain seated on jury; and (4) imposition of death penalty was not excessive nor disproportionate to that imposed in other cases. Affirmed. Finney, C.J., filed dissenting opinion.
Appellant Thomas Treshawn Ivey was convicted of the murder, kidnaping, and armed robbery of Robert Montgomery. He was sentenced to death for murder and thirty years imprisonment for armed robbery. This appeal consolidates appellant's direct appeal with the mandatory review provisions of S.C.Code Ann. § 16-3-25 (1985). We affirm.
In early January 1993, appellant and Vincent Neumon escaped from a prison in Alabama. Appellant and Neumon stole a truck and drove to Columbia, South Carolina, Neumon's hometown.
Neumon testified during the guilt phase of appellant's trial. According to Neumon's testimony, on the evening of January 13, 1993, appellant suggested the two men should rob some people. Appellant carried a pistol in his coat pocket while the two men walked through Columbia. They stopped at Owens Steel. A maroon Suburban was parked outside. Mr. Montgomery came out of Owens Steel. At gunpoint, appellant led Montgomery back into the building to obtain the keys to the vehicle. When they returned, Neumon drove the vehicle, Mr. Montgomery sat beside him, and appellant sat in the back. Mr. Montgomery was scared and begged the two men not to hurt him; he stated he had a young child at home and his wife was expecting another child. Neumon and appellant assured Mr. Montgomery he would not be hurt.
Neumon drove to North, South Carolina. At that point, appellant stated “this is far enough.” Neumon stopped the vehicle. Appellant told Mr. Montgomery to get out of the vehicle. Neumon remained in the vehicle. Appellant and Mr. Montgomery walked away. Neumon testified he saw the “flame” flash from the gun twice. Appellant returned to the vehicle with the pistol in his hand. Appellant later told Neumon when he shot Mr. Montgomery in the back of the head his hair “jumped up.” He then rolled Mr. Montgomery over and shot him in the chest.FN1
FN1. After failing to locate a “chop-shop” in Atlanta, Neumon and appellant disposed of Mr. Montgomery's vehicle in Winnsboro. They stole another vehicle and drove to Sumter. In Sumter, appellant shot and killed police officer Thomas Harrison. Appellant's conviction and death sentence for the murder of Officer Harrison were affirmed by this Court in State v. Ivey, 325 S.C. 137, 481 S.E.2d 125 (1997).
Neumon explained, prior to the murder, he (Neumon) borrowed the murder weapon from someone. On cross-examination, defense counsel asked Neumon if he had borrowed the pistol from “Fletch.” Neumon stated he had.FN2. “Fletch” was not identified as a potential witness during voir dire and did not testify at either stage of appellant's trial.
After a brief recess, the trial judge informed the parties he had received a note from Juror Young which stated: “I know the person, Fletch, that Mr. Neumon was talking about.” Defense counsel and the solicitor agreed the judge should examine Juror Young.
After completion of Neumon's testimony, the trial judge asked Juror Young to remain in the courtroom and excused the remaining members of the jury. The trial judge examined Juror Young as follows: Q. Okay, Ms. Young, you sent out a note that says, “I know the person, Fletch, that Mr. Neumon was talking about.” A. Uh huh. Q. Do you feel like you know that same person? A. Yes. Q. If it is the same person, would that have any effect (sic) on your ability to be fair and impartial in this case, just because you know Fletch? A. No, it shouldn't. Q. Ma'am. A. It shouldn't affect me. Q. Okay. It shouldn't have any effect (sic) on you at all, you just wanted us to know that? A. Yeah. Q. Okay. All right, we appreciate it.
The solicitor stated no objection to Juror Young remaining on the jury. Defense counsel requested Juror Young be removed. The trial judge denied the motion to remove Juror Young, observing she had stated her knowledge of “Fletch” would have no effect on her ability to remain fair and impartial. The trial judge then inquired if either party had “anything else.” Defense counsel replied negatively. The court recessed for the evening.
The following morning, after discussing other matters, defense counsel moved to question Juror Young regarding her knowledge of “Fletch.” The trial judge denied the motion.
Relying on S.C.Code Ann. §§ 16-3-20(D) and 14-7-1020 (Supp.1997), appellant now argues he was entitled to question Juror Young about her relationship with “Fletch.” We disagree.
Appellant's request to ask additional questions of Juror Young was untimely. If dissatisfied with the trial judge's examination of Juror Young, appellant should have immediately moved for permission to make additional inquiries of the juror. Appellant's request for additional questioning the day after the trial judge had examined Juror Young and ruled her qualified was untimely. State v. Nance, 25 S.C. 168 (1886) (if counsel considered questioning by court perfunctory or otherwise unsatisfactory, the objection should have been made at the time of the questioning); 50A C.J.S. Juries § 489 (1997) (a party, by failing to object in a timely fashion, waives any irregularity in the examination of jurors). Accordingly, this issue is not properly preserved for appeal. State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (a contemporaneous objection is required to preserve an error for appellate review).
In any event, neither § 16-3-20(D) nor § 14-7-1020 entitled appellant to question Juror Young. Section 14-7-1020 sets forth the parameters of inquiry for prospective jurors by the trial judge. Section 16-3-20(D) grants a capital defendant the right to examine jurors through counsel but does not enlarge the scope of voir dire permitted under § 14-7-1020. State v. Patterson, 324 S.C. 5, 482 S.E.2d 760 (1997), cert. denied, 522 U.S. 853, 118 S.Ct. 146, 139 L.Ed.2d 92. These two statutes govern the selection of prospective jurors, not the situation where, as here, the court is informed of a matter which may justify the discharge of a seated juror.
The trial judge properly inquired into the effect Juror Young's knowledge of “Fletch” would have on her ability to be fair and impartial. FN3 Juror Young unequivocally stated her knowledge of “Fletch” would have no effect on her ability to render an impartial verdict. The trial judge did not abuse his discretion in allowing Juror Young to remain on the jury. State v. Thompson, 278 S.C. 1, 292 S.E.2d 581 (1982), cert. denied, 456 U.S. 938, 102 S.Ct. 1996, 72 L.Ed.2d 458, overruled on other grounds, State v. Torrence, supra (a juror's competence is within the trial judge's discretion and is not reviewable on appeal unless wholly unsupported by the evidence).
FN3. 50A C.J.S. Juries § 503 (1997) (“[w]here the court is informed of a matter which may justify the discharge of a juror, the court generally must take some action and must inquire into the matter, at least where the juror's competency is in question. The court has the discretion to question a juror whose qualifications have been called into doubt. Where and in what form to conduct an inquiry may depend upon the circumstances.”).
Appellant's remaining issues are affirmed pursuant to Rule 220(b)(1), SCACR, and the following authorities: Issue 1: State v. Atkins, 303 S.C. 214, 399 S.E.2d 760 (1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2913, 115 L.Ed.2d 1076 (1991); Issue 3: State v. Doctor, 306 S.C. 527, 413 S.E.2d 36 (1992); State v. Anderson, 304 S.C. 551, 406 S.E.2d 152 (1991); Issue 4: State v. Southerland, 316 S.C. 377, 447 S.E.2d 862 (1994), cert. denied, 513 U.S. 1166, 115 S.Ct. 1136, 130 L.Ed.2d 1096 (1995), overruled on other grounds, State v. Chapman, 317 S.C. 302, 454 S.E.2d 317 (1995); State v. Bailey, 298 S.C. 1, 377 S.E.2d 581 (1989) (issue not preserved for appeal where one ground is raised below and another ground is raised on appeal); Issue 5: State v. Bailey, id.
After reviewing the entire record, we conclude the death sentence was not the result of passion, prejudice, or any other arbitrary factor, and the jury's finding of statutory aggravating circumstances is supported by the evidence.FN4 See S.C.Code Ann. § 16-3-25 (1985). Further, we hold the death penalty is neither excessive nor disproportionate to that imposed in similar cases. See State v. Patterson, supra; State v. Humphries, 325 S.C. 28, 479 S.E.2d 52, cert. denied, 520 U.S. 1268, 117 S.Ct. 2441, 138 L.Ed.2d 201 (1997); State v. McWee, 322 S.C. 387, 472 S.E.2d 235 (1996), cert. denied, 519 U.S. 1061, 117 S.Ct. 695, 136 L.Ed.2d 618 (1997); State v. Von Dohlen, 322 S.C. 234, 471 S.E.2d 689, cert. denied, 519 U.S. 972, 117 S.Ct. 402, 136 L.Ed.2d 316 (1996); State v. Young, 319 S.C. 33, 459 S.E.2d 84 (1995), cert. denied, 516 U.S. 1051, 116 S.Ct. 718, 133 L.Ed.2d 671 (1996); State v. Bell, 305 S.C. 11, 406 S.E.2d 165 (1991), cert. denied, 502 U.S. 1038, 112 S.Ct. 888, 116 L.Ed.2d 791 (1992); State v. Green, 301 S.C. 347, 392 S.E.2d 157, cert. denied, 498 U.S. 881, 111 S.Ct. 229, 112 L.Ed.2d 183 (1990); State v. Howard, 295 S.C. 462, 369 S.E.2d 132 (1988), cert. denied, 490 U.S. 1113, 109 S.Ct. 3174, 104 L.Ed.2d 1036 (1989); State v. Drayton, 293 S.C. 417, 361 S.E.2d 329 (1987), cert. denied, 484 U.S. 1079, 108 S.Ct. 1060, 98 L.Ed.2d 1021 (1988).
FN4. The jury found the statutory aggravating circumstances of murder while in the commission of kidnaping, while in the commission of robbery while armed with a deadly weapon, and while in the commission of larceny with the use of a deadly weapon, and by a person with a prior conviction for murder. S.C.Code Ann. § 16-3-20(C)(a)(1)(b) (d) & (e) and (C)(a)(2) (Supp.1997).
Ivey v. Ozmint, 304 Fed.Appx. 144 (4th Cir. 2008) (Habeas).
Background: Defendant convicted of murder petitioned for a writ of habeas corpus. The United States District Court for the District of South Carolina, 2008 WL 1787481, G. Ross Anderson, Jr., J., denied relief, and defendant appealed.
Holdings: The Court of Appeals, Agee, Circuit Judge, held that: (1) juror was qualified to serve; (2) defendant's counsel had no personal relationship with a police officer/victim in a related prosecution, and thus, there was no actual conflict of interest; and (3) admission of unavailable witness' prior testimony in the related prosecution did not violate defendant's Confrontation Clause rights. Affirmed.
AGEE, Circuit Judge:
Thomas Treshawn Ivey, convicted of murder and sentenced to death by the State of South Carolina, appeals from the district court's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Because Ivey failed to rebut by clear and convincing evidence the presumption of correctness due the state court's factual findings that a disputed juror was qualified to be empanelled, and that his trial counsel had no actual conflict of interest, and because the state court's determination that Ivey's appellate counsel was not ineffective was not an unreasonable application of clearly established Federal law, as determined by the Supreme Court, we affirm the judgment of the district court dismissing the petition with prejudice.
In January 1993, Ivey and Vincent Neumon escaped from jail in Alabama, stole a vehicle, and drove to Neumon's hometown of Columbia, South Carolina. They then abducted Robert Montgomery in his minivan and, according to Neumon, Ivey later shot Montgomery to death. They subsequently drove to Atlanta with Patricia Perkins, where they stole another car. The trio then drove to a mall in Orangeburg, South Carolina, where Perkins and Neumon aroused suspicion by attempting to buy several hundred dollars of merchandise with checks and identification taken from the latest stolen car. During a confrontation with Sergeant Thomas Harrison, an Orangeburg police officer, Ivey shot Harrison to death.
Neumon subsequently confessed to his role in these crimes and entered into a plea agreement requiring him to testify against Ivey. The Harrison case was prosecuted first and Ivey was found guilty of Harrison's murder and sentenced to death. Neumon testified in both the guilt and penalty phases of that trial. Ivey was subsequently prosecuted for Montgomery's kidnapping, robbery, and murder. In July 1995, he was convicted of these offenses and again sentenced to death.
Kawiana Young was a member of the venire for the Montgomery trial. During voir dire, Young stated at times that she would always vote to impose the death penalty upon a defendant convicted of murder. However, during other portions of her voir dire, Young stated that she would keep an open mind, listen to both sides, and determine the best outcome for that particular case. Ivey moved to strike Young for cause but the state trial court found “she's a qualified juror given the totality of her responses.” (J.A. 41-61.)
Although he had already testified against Ivey in the guilt and sentencing phases of the Harrison trial and the guilt phase of the Montgomery trial, Neumon refused to testify during the sentencing phase of the Montgomery trial. The trial court granted the prosecution's motion to call Neumon as a court's witness. Neumon continued to refuse to testify, whereupon the court cited him for contempt, declared him an unavailable witness, and allowed the prosecution to read portions of his testimony from the Harrison trial. Ivey objected that reading Neumon's testimony from the Harrison trial would prevent Ivey from cross-examining him-that his cross-examination might be substantially different than that in the Harrison trial and that this process was prejudicial. The trial court overruled the objection and Neumon's testimony from the Harrison trial was read into the record in the sentencing phase of the Montgomery trial.
On direct appeal to the Supreme Court of South Carolina for his convictions and death sentence in the Montgomery trial, Ivey was represented by Joseph Savitz, deputy chief attorney in the state's Office of Appellate Defense. Savitz argued, inter alia, that juror Young should not have been seated and that the trial court unduly influenced the jury by calling Neumon as a court's witness. Savitz did not raise a Confrontation Clause challenge to the admission of Neumon's testimony from the Harrison trial. In South Carolina v. Ivey, 331 S.C. 118, 502 S.E.2d 92, 95 (1998), cert. denied, 525 U.S. 1075, 119 S.Ct. 812, 142 L.Ed.2d 671 (1999), the Supreme Court of South Carolina affirmed Ivey's convictions and death sentence from the Montgomery trial.
In the Montgomery trial, Ivey was represented by Doyet “Jack” Early, court-appointed counsel, and Michael Culler, a public defender. In 2001, while pursuing his state collateral review, Ivey discovered that Culler had been appointed to represent Perkins in proceedings related to the earlier Harrison trial. However, Culler had been permitted to withdraw from representing Perkins based on a letter he wrote to the trial court stating that he had a “conflict of interest” because “Officer Tom Harrison, who was killed in this incident, was a personal friend.” (J.A. 310.) When Ivey then raised the issue of Culler's conflict of interest during trial in the state collateral proceeding, Culler confirmed that he had written the letter but denied any personal relationship with Harrison or that any conflict had, in fact, existed. Culler testified that his relationship with Harrison was merely professional and tangential, that the letter was inaccurate, and that he had no explanation for how it had come to be written. In addition, Early testified that “Culler never acted less than zealous in Ivey's defense and he appeared to be absolutely interested in saving Ivey's life.” (J.A. 481.)
Among the grounds for relief raised in his petition for state collateral review, Ivey alleged (1) that Culler's recently discovered withdrawal from representing Perkins reflected an actual conflict of interest that deprived Ivey of effective assistance of trial counsel, and (2) that Savitz deprived him of effective assistance of appellate counsel by failing to challenge Young's inclusion on the jury and failing to challenge the admission of Neumon's testimony from the Harrison trial on Confrontation Clause grounds.
After comparing the contents of Culler's withdrawal letter with Culler and Early's testimony, the state court found that the letter's contents were factually inaccurate, that Culler “had no personal relationship with Officer Harrison,” and “no conflict of interest existed” in Culler's representation of Ivey. (J.A. 482.) The state court also determined that Savitz had not been ineffective because the use of Neumon's prior testimony from the Harrison trial did not violate the Confrontation Clause. Finally, the court ruled that Ivey did not prove that Savitz had been ineffective for failing to challenge Young's inclusion on the jury because Savitz had raised that challenge on appeal. Accordingly, the state court denied Ivey's petition for post-conviction collateral relief.
In a federal habeas petition in the district court, Ivey renewed his claims that Culler had an actual conflict of interest that deprived Ivey of effective assistance of counsel at trial and that Savitz's failure to challenge Neumon's testimony on Confrontation Clause grounds deprived him of effective assistance of counsel on appeal. Ivey also challenged on the merits the trial court's inclusion of Young on the jury. The district court denied Ivey's petition. Ivey timely filed a notice of appeal and the district court granted a certificate of appealability pursuant to 28 U.S.C. § 2253.
Ivey contends the district court erred in denying his § 2254 petition because (1) Young's responses to questions during voir dire show that she was not impartial about the application of the death penalty, (2) Culler's letter requesting withdrawal from representation of Patricia Perkins demonstrates that Culler had an actual conflict of interest adversely affecting his performance at trial, and (3) Savitz's failure to raise a Confrontation Clause challenge to the use of Neumon's prior testimony constituted ineffective assistance of appellate counsel.
This Court reviews the denial of a § 2254 petition de novo, applying the same standards applicable in the district court. Jackson v. Johnson, 523 F.3d 273, 276 (4th Cir.2008). “An granted” on any claim adjudicated in state proceedings unless that adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d) (2000). When assessing whether the state court's determination of facts is unreasonable, we presume those determinations are correct unless the applicant rebuts “the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1) (2000); Lenz v. Washington, 444 F.3d 295, 300-01 (4th Cir.2006).FN1
FN1. Ivey contends that “some tension appears to exist between § 2254(e)(1), under which state court factual findings are presumed to be correct, and § 2254(d)(2), which can only be read as requiring federal habeas courts to look beneath a state court's factual findings to assess their reasonableness in light of the record that was before the state court.” (Br. Appellant 15.) Ivey argues that the district court should have undertaken the latter approach in his case and determined de novo whether the state court's factual findings are reasonable.
A similar argument was made by the applicant in Lenz. In that case, this Court, relying in part on Miller-El v. Dretke, 545 U.S. 231, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), held that a state court's factual findings are presumed to be sound in a § 2254(d)(2) review for reasonableness unless rebutted by clear and convincing evidence as required by § 2254(e)(1). 444 F.3d at 300-01. Our precedent in Lenz, which the district court applied below, controls here. See, e.g., McMellon v. United States, 387 F.3d 329, 334 (4th Cir.2004) (restating the well-established rule that one panel of this Court may not overrule another).
Ivey contends that Young's responses to questioning during voir dire established that she believed death to be the only appropriate sentence for a person convicted of murder. Because this issue was considered during Ivey's direct appeal,FN2 it “was adjudicated on the merits in State court proceedings” for the purposes of § 2254(d).
FN2. Because Ivey raised the issue of Young's impartiality on the merits at trial and in the state supreme court on direct appeal, his failure to present that issue in his state habeas petition does not preclude our consideration of the issue here. See Woodford v. Ngo, 548 U.S. 81, 92, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (“A state habeas petitioner is generally barred from obtaining federal habeas relief unless the prisoner has presented his or her claims through one ‘complete round of the State's established appellate review process.’ ” (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999))).
The Sixth Amendment guarantees the accused a right to trial by an impartial jury, Fullwood v. Lee, 290 F.3d 663, 677 (4th Cir.2002), which precludes the qualification of a juror predisposed in all cases to impose the death penalty:
A juror who will automatically vote for the death penalty in every case ... has already formed an opinion on the merits[;] the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant to such a juror.... If even one such juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence. Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992).
However, the question of Young's impartiality is a question of fact and the state court's determination of that issue is entitled to the § 2254(e)(1) statutory presumption of correctness, see Wainwright v. Witt, 469 U.S. 412, 429, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), which Ivey has not overcome by clear and convincing evidence. Ivey does nothing more than point to that portion of Young's voir dire, already considered by the trial court, where she stated a preference for the death penalty. However, Ivey's argument ignores the totality of Young's voir dire testimony, particularly those portions where she indicated she would obey the court's instructions, “could vote for a life sentence,” and would consider all the evidence during the sentencing phase to arrive at what was “appropriate, given the circumstances of a particular case.” (J.A.48.) Accordingly, the state courts' determination that Young was a qualified juror was not “an unreasonable determination of the facts in light of the evidence presented.” Thus, we find no error in the district court's denial of Ivey's petition on this ground.FN3
FN3. Because we conclude that the state court's determination, based upon the totality of the voir dire testimony, was not an unreasonable determination of the facts in light of the evidence presented, we need not consider Ivey's additional claim that the district court erred, under Snyder v. Louisiana, --- U.S. ----, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008), in relying on the trial court's ability to observe the juror's demeanor.
Ivey also contends that Culler's letter requesting withdrawal from representation of Perkins in the Harrison trial proves an actual conflict of interest on the part of his trial counsel, which deprived Ivey of the effective assistance of counsel. Because this issue was considered during Ivey's state habeas review, it “was adjudicated on the merits in State court proceedings” for the purposes of § 2254(d).
The Sixth Amendment guarantees an accused the right to effective assistance of counsel, see Strickland v. Washington, [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], and an essential aspect of this right is a lawyer unhindered by conflicts of interest. In general, to prevail on an ineffective assistance claim, a petitioner must establish (1) that his lawyer's performance was deficient by showing that his performance fell below an objectively reasonable standard, and (2) that his deficient performance prejudiced the petitioner's case.
We have recognized that, as a general proposition, the effective performance of counsel requires meaningful compliance with the duty of loyalty and the duty to avoid conflicts of interest, and a breach of these basic duties can lead to ineffective representation. When a petitioner premises his ineffective assistance claim on the existence of a conflict of interest, the claim is subjected to the specific standard spelled out in Cuyler v. Sullivan, [446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) ], instead of that articulated in Strickland. To establish that a conflict of interest resulted in ineffective assistance, more than a mere possibility of a conflict must be shown. The petitioner must show (1) that his lawyer was under an actual conflict of interest and (2) that this conflict adversely affected his lawyer's performance. If the petitioner can show an actual conflict, and that it adversely affected his lawyer's performance, prejudice is presumed and there is no need to demonstrate a reasonable probability that, but for the lawyer's conflict of interest, the trial or sentencing outcome would have been different. [A]n adverse effect is not presumed from the existence of an actual conflict of interest. United States v. Nicholson, 475 F.3d 241, 248-249 (4th Cir.2007) (internal quotation marks, alterations, and citations omitted).
“The question whether a conflict of interest impermissibly tainted an attorney's performance is a mixed question of law and fact ... that calls for ‘the application of legal principles to the historical facts of [a given] case.’ ” Familia-Consoro v. United States, 160 F.3d 761, 764 (1st Cir.1998) (quoting Cuyler, 446 U.S. at 342, 100 S.Ct. 1708). Nevertheless, the state habeas court's findings of those historical facts are entitled to the statutory presumption of correctness, Freund v. Butterworth, 165 F.3d 839, 862 (11th Cir.1999), which Ivey has again failed to overcome by clear and convincing evidence. Ivey has done little more than point to Culler's letter, already determined by the state habeas court not to have created a conflict of interest because its contents were inaccurate. On that basis, Ivey has fallen far short of rebutting by clear and convincing evidence the state court's determination that Culler had no personal relationship with Harrison, and therefore no actual conflict of interest. The state habeas court's determination was thus not “an unreasonable determination of the facts in light of the evidence presented.” Accordingly, we find no error in the district court's denial of Ivey's petition on ground of conflict of interest by Culler.
Ivey further contends that Savitz's failure to challenge the admission of Neumon's prior testimony on Confrontation Clause grounds constituted ineffective assistance of appellate counsel. Because this issue was considered during Ivey's state habeas review, it “was adjudicated on the merits in State court proceedings” for the purposes of § 2254(d). .... Th[e] right to effective assistance of counsel extends to require such assistance on direct appeal of a criminal conviction.
In order to establish a claim that appellate counsel was ineffective for failing to pursue a claim on direct appeal, the applicant must normally demonstrate (1) that his counsel's representation fell below an objective standard of reasonableness in light of the prevailing professional norms, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
In applying this test to claims of ineffective assistance of counsel on appeal, however, reviewing courts must accord appellate counsel the presumption that he decided which issues were most likely to afford relief on appeal. Counsel is not obligated to assert all nonfrivolous issues on appeal, as there can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review. Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir.2000) (internal quotation marks, alterations, and citations omitted).
The state habeas court determined that the Confrontation Clause jurisprudence flowing from Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), applicable at the time of Ivey's appeal,FN4 would not have barred the use of Neumon's prior testimony. For that reason, the state court concluded that Ivey could not meet the second prong of the ineffectiveness analysis because the results of his direct appeal would not have been different even if Savitz had raised the issue.FN5
FN4. The state court correctly noted that Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), does not apply retroactively and was not applicable during the Montgomery trial. See Whorton v. Bockting, 549 U.S. 406, 421, 127 S.Ct. 1173, 1184, 167 L.Ed.2d 1 (2007).
FN5. The state habeas court also found that the Confrontation Clause issue had not been preserved for appeal as a matter of state law. Because we dispose of this issue under 28 U.S.C. 2254(d)(1), we need not consider the state's argument that Ivey procedurally defaulted habeas review of this claim.
In Roberts, the Supreme Court stated that the Confrontation Clause was not offended when the prior testimony of an unavailable witness was admitted with “indicia of reliability” allowing the fact-finder to evaluate the truth of the prior statement. 448 U.S. at 65-66, 100 S.Ct. 2531. The Supreme Court ultimately held that where “there was an adequate opportunity to cross-examine [the witness], and counsel ... availed himself of that opportunity, the transcript ... bore sufficient indicia of reliability and afforded the trier of fact a satisfactory basis for evaluating the truth of the prior statement.” Id. at 73, 100 S.Ct. 2531 (internal quotation marks omitted). Roberts therefore did not bar Neumon's prior testimony from the Harrison trial, where Neumon had been available for and subjected to cross-examination by Ivey in that proceeding.FN6 FN7 Consequently, Ivey's claim does not meet the requirements of § 2254(d)(1).
FN6. The fact that Ivey had different counsel in the Harrison trial is immaterial. See id. at 72, 100 S.Ct. 2531 (“Nor does it matter that ... respondent had a different lawyer.... Indeed, if we were to accept this suggestion ... a defendant could” evade the rule merely by changing counsel.).
FN7. The Roberts Court also stated that “[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” Id. at 66, 100 S.Ct. 2531. Clinging to this statement, Ivey argues that Neumon's testimony was improperly admitted based on state evidentiary rules proscribing hearsay. Because our review is limited to “clearly established Federal law” and because Roberts supports the use of Neumon's testimony, we do not consider this argument.
The state court's determination that Savitz was not ineffective because the outcome of Ivey's direct appeal would not have been different had Savitz raised the issue was not “a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.” Thus, we find no error in the district court's denial of Ivey's petition on this ground.
For the foregoing reasons, we affirm the judgment of the district court.