Anthony Green v. WILLIAM D. CATOE, Director, South No. 99-30 Carolina Department of Corrections

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ANTHONY GREEN,
Petitioner-Appellant,
v.
WILLIAM D. CATOE, Director, South
No. 99-30
Carolina Department of Corrections;
CHARLES M. CONDON, Attorney
General, State of South Carolina,
Respondents-Appellees.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Patrick Michael Duffy, District Judge.
(CA-96-3277-6-18AK)
Argued: May 4, 2000
Decided: August 1, 2000
Before WILKINS, MOTZ, and KING, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge King wrote the majority opin-
ion, in which Judge Wilkins joined. Judge Motz wrote a dissenting
opinion.
_________________________________________________________________
COUNSEL
ARGUED: Leonard M. Singer, CRAIGHEAD GLICK, L.L.P., Bos-
ton, Massachusetts, for Appellant. Donald John Zelenka, Assistant
Deputy Attorney General, SOUTH CAROLINA OFFICE OF THE

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ATTORNEY GENERAL, Columbia, South Carolina, for Appellees.
ON BRIEF: Teresa L. Norris, CENTER FOR CAPITAL LITIGA-
TION, Columbia, South Carolina, for Appellant.
_________________________________________________________________
OPINION
KING, Circuit Judge:
Anthony Green appeals from the judgment of the district court in
South Carolina denying his petition for habeas corpus relief. In this
appeal, Green challenges the dismissal of two claims: (1) that the
Supreme Court of South Carolina denied him procedural due process
in the course of resolving his direct appeal; and (2) that he was denied
effective assistance of counsel at sentencing, in violation of the Sixth
Amendment. We have carefully considered these claims and agree
that Green is not in custody in violation of the Constitution or laws
of the United States. We therefore affirm the judgment of the district
court.
I.
In the afternoon of November 21, 1987, Susan Babich parked her
car in the rear lot of the Charles Towne Square Shopping Mall in
Charleston, South Carolina. After shopping at the mall, she returned
to her car; before she could drive away, however, she was approached
by Green, who advanced rifle in hand. Green then shot Ms. Babich
in the head, stole her pocketbook, and fled the scene in another car.
Based on a description from an eyewitness, the police soon appre-
hended Green in the vicinity of the mall. The police found the rifle
and Ms. Babich's checkbook in Green's car, and Green ultimately
gave a statement admitting to his involvement in these crimes.
Green was tried by jury in Charleston County, South Carolina. The
jury found Green guilty of murder and armed robbery and, after a sep-
arate sentencing proceeding, recommended a sentence of death. On
direct appeal, the Supreme Court of South Carolina upheld Green's
conviction and sentence. See State v. Green, 392 S.E.2d 157, 158
(S.C. 1990). Following the exhaustion of his remaining state reme-
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dies, including an application for post-conviction relief, Green filed
a petition for federal habeas corpus relief. The district court then con-
sidered and dismissed his petition. With its dismissal, the district
court granted Green a certificate of appealability to this Court. See 28
U.S.C. § 2253. From the dismissal, Green brings this appeal, and we
possess jurisdiction pursuant to 28 U.S.C. § 1291.
II.
A.
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), a federal court may not grant a writ of habeas corpus
unless the state's adjudication of a claim resulted in "a decision that
was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States." 28 U.S.C. § 2254(d). As the Supreme Court recently
made clear:
[Section] 2254(d)(1) places a new constraint on the power
of a federal habeas court to grant a state prisoner's applica-
tion for a writ of habeas corpus with respect to claims adju-
dicated on the merits in state court. . . . Under the "contrary
to" clause, a federal habeas court may grant the writ if the
state court arrives at a conclusion opposite to that reached
by this Court on a question of law or if the state court
decides a case differently than this Court has on a set of
materially indistinguishable facts. Under the "unreasonable
application" clause, a federal habeas court may grant the
writ if the state court identifies the correct governing legal
principle from this Court's decisions but unreasonably
applies that principle to the facts of the prisoner's case.
Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000).
In this appeal, Green asserts two constitutional grounds for habeas
corpus relief: (1) a Due Process violation and (2) a Sixth Amendment
violation. With respect to Green's Sixth Amendment claim, the South
Carolina trial court that considered Green's application for post-
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conviction relief (the "state PCR court") issued an extensive opinion
explaining why Green was not entitled to relief on that basis. How-
ever, the separate Due Process claim raised by Green is in a different
procedural posture, since it was only presented to the Supreme Court
of South Carolina in the petition for rehearing submitted to that court
following resolution of Green's direct appeal. The"adjudication" of
this claim is explained by two sentences: "Petition for Rehearing is
denied," signed by four Justices; and "I would grant," signed by one
Justice.
Under our precedent, this perfunctory rejection of Green's Due
Process claim does constitute an "adjudication" for purposes of sec-
tion 2254(d)(1). See Cardwell v. Greene, 152 F.3d 331, 339 (4th Cir.
1998); Wright v. Angelone, 151 F.3d 151, 156-57 (4th Cir. 1998).
Nonetheless, as we made clear in Cardwell:
[B]ecause the state court decision fails to articulate any
rationale for its adverse determination of Cardwell's claim,
we cannot review that court's "application of clearly estab-
lished Federal law," but must independently ascertain
whether the record reveals a violation of [a constitutional
right]. . . . Where, as here, there is no indication of how the
state court applied federal law to the facts of a case, a fed-
eral court must necessarily perform its own review of the
record. Thus, on the facts of this case, the distinction
between de novo review and "reasonableness" review
becomes insignificant.
Cardwell, 152 F.3d at 339 (emphasis added) (quotation omitted).
Accordingly, because there is no indication of how the Supreme
Court of South Carolina applied federal law to the facts of Green's
Due Process claim, we must review that claim under the Cardwell
standard.
B.
During jury selection, the trial court declined to remove three
jurors, whom Green had moved to excuse for cause, from the jury
venire, so Green used peremptory challenges on all three. Green ulti-
mately exhausted his peremptory challenges, after which two jurors
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were seated on the jury that convicted Green and condemned him to
death.
Green asserts that under the law of South Carolina, as it existed
prior to the resolution of his direct appeal, he was entitled to a new
trial if he made two showings: (1) that he had been forced to use a
peremptory challenge on a venireperson who should have been
excused for cause, and (2) that he had exhausted his peremptory chal-
lenges before the jury was impaneled. On direct review, the Supreme
Court of South Carolina concluded that the trial court had erred in
denying Green's motion to excuse, for cause, one of the three jurors
at issue. Green, 392 S.E.2d at 159-61. According to Green, at that
point, he had satisfied the two then-existing prerequisites for a new
trial. However, in his direct appeal, the Supreme Court of South Caro-
lina declined to award Green a new trial, instead imposing what
Green characterizes as a "new" third requirement -- that "this error
deprived him of a fair trial" (the "fair trial element"). Green, 392
S.E.2d at 160. Because Green could not make this third showing, he
was denied a new trial by the Supreme Court of South Carolina.
Green asserts that the imposition of this fair trial element, which
previously had not been required under South Carolina law, was
effected without proper notice, in violation of his right to procedural
due process. Specifically, Green asserts that the law was changed and
retroactively applied to his appeal, and if he had been given proper
notice, he could have (1) made a record at trial sufficient to demon-
strate that he had been denied a fair trial, and (2) argued against a
change in the law on direct appeal.
1.
Before turning to the merits of Green's Due Process claim, we note
that the State agrees with Green that this claim has been properly pre-
served; indeed, it could not have argued otherwise. The alleged Due
Process violation arose from the Supreme Court of South Carolina's
resolution of his direct appeal; thus, this claim could not have been
raised prior to Green's petition for rehearing thereon. In Sellers v.
Boone, 200 S.E.2d 686, 687 (S.C. 1973), the Supreme Court of South
Carolina stated that if an error arose out "of[an] affirmance by an
appellate court," an appellant may seek a review of the alleged error
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on the merits in a petition for rehearing. Green included his argument
in his petition for rehearing, and we thus agree with the State that
Green presented the Due Process claim to the State, the State adjudi-
cated the claim, and Green has exhausted his state remedies with
respect to the claim.
2.
Under the Fourteenth Amendment, no state "may deprive any per-
son of life, liberty, or property, without due process of law." U.S.
Const. amend. XIV, § 1. Inasmuch as Green has alleged a deprivation
of procedural due process, our analysis involves two steps. Stewart v.
Bailey, 7 F.3d 384, 392 (4th Cir. 1993). First, we must determine
"whether there exists a liberty or property interest which has been
interfered with by the State." Id. Second, we must ascertain "whether
the procedures attendant upon that deprivation were constitutionally
sufficient." Id.
a.
With respect to the first step of the Due Process analysis, many
state-created rights have been accorded the status of liberty or prop-
erty interest within the meaning of the Fourteenth Amendment. See,
e.g., Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U.S. 673, 677
(1930); Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974). Thus,
state-conferred rights have been recognized as liberty or property
interests that are "sufficiently embraced within Fourteenth Amend-
ment `liberty' to entitle [defendants] to .. . minimum procedures
appropriate under the circumstances." Wolff , 418 U.S. at 557. Of
course, a state has "the authority to create, or not," each of these
rights; however, once created, the Due Process clause guarantees "that
the state-created right is not arbitrarily abrogated." Id. Within this
context, we must examine the right that Green claims was abrogated
by South Carolina.
According to Green, prior to the resolution of his appeal, a defen-
dant who established two elements: (1) that he was forced to use a
peremptory challenge on a venireperson who should have been
excused for cause; and (2) that he had exhausted his peremptory chal-
lenges before the jury was impaneled, was absolutely entitled to a
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new trial. Under the then-controlling law of South Carolina as articu-
lated by Green, the Supreme Court of South Carolina was without dis-
cretion to deny him a new trial under the facts present in his appeal.
In other words, Green's asserted state-created right, which would be
subject to the guarantee of procedural due process, is his right to a
new trial.
For authority that he was previously guaranteed a new trial under
these circumstances, Green first relies upon State v. Sanders, 88 S.E.
10, 12 (S.C. 1916). There, the Supreme Court of South Carolina
reversed and remanded a criminal conviction based solely on an argu-
ment raised by the appellant that a motion to excuse for cause had
been erroneously rejected, causing him to use a peremptory challenge.
The court remanded for a new trial based upon the following findings:
His honor, the presiding judge ruled that the juror was com-
petent, and that he should be presented to the prisoner who
rejected him [using a peremptory challenge]. It is admitted
that the defendant exhausted his peremptory challenges
before the panel of jurors was completed. It is true the juror
stated that he could give the prisoner and the state a fair and
impartial trial; but, as he also stated that he felt a resentment
in this particular case, which might prejudice him in render-
ing a verdict, that, as stated, he felt a prejudice in this partic-
ular case, and that he felt a natural resentment against a
lawyer of the colored race, pleading to a jury of which he
was a member, this court is satisfied that his honor, the cir-
cuit judge, erroneously exercised his discretion in ruling that
the juror was competent.
Id. at 12. The import of this holding is clear: if a motion to excuse
a juror is improperly denied, the defendant then uses a peremptory
challenge on that juror, and the defendant runs out of peremptory
challenges before the last juror is seated, then the defendant is entitled
to a new trial.
Green also relies upon State v. Anderson, 281 S.E.2d 111, 112
(S.C. 1981), to assert that he was previously guaranteed a new trial.
During Anderson's trial, the court had allotted the defendant five
peremptory challenges, instead of the ten required by statute. Id. The
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Supreme Court of South Carolina held: "We think appellant, having
objected to the limitation and having exhausted her allotted chal-
lenges, has shown prejudice. To venture a sixth challenge would have
been futile." Id. at 112. The court thus granted a new trial in Anderson
with no mention whatsoever of a "fair trial" element; instead, it was
sufficient that an objection was raised and the defendant's peremptory
challenges were exhausted.
Significantly, in a case decided nine years after the 1990 decision
resolving Green's direct appeal, the Supreme Court of South Carolina
again noted that no "fair trial" demonstration was necessary in the
context of an error relating to peremptory challenges. See State v.
Short, 511 S.E.2d 358, 360-61 (S.C. 1999). There, in circumstances
analogous to Green's, the court "adopt[ed] the majority rule that no
showing of actual prejudice is required to find reversible error for the
denial or impairment of the right to a peremptory challenge." Id. at
360. It did so in agreement with the Court of Appeals of South Caro-
lina, which had concluded that "there was no way to determine with
any degree of certainty whether [the defendant's] right to a fair trial
by an impartial jury was abridged." Id. Although Short was decided
in the context of a challenge under Batson v. Kentucky, 476 U.S. 79
(1986), the broad language and rationale of Short are applicable to
cases in which a defendant is denied a peremptory challenge by a trial
court's improper denial of a motion to excuse a juror for cause.1
The State responds with two arguments. First, it asserts that we
should not be attempting to ascertain whether the fair trial element
was "new" because the Supreme Court of South Carolina has indi-
_________________________________________________________________
1 Green also cites at least seventeen other decisions in which the
Supreme Court of South Carolina considered the same issue raised by
Green, and in each of those cases, the court discussed a two-element test
without mentioning the fair trial element imposed in Green's appeal. In
addition, Green quotes from a treatise relating to South Carolina law,
which summarized the law as it stood before the resolution of Green's
direct appeal: "South Carolina treats the wrongful deprivation of a
peremptory challenge as error per se so long as all peremptory challenges
are exhausted." Br. for Appellant at 23 (quoting William S. McAninch
& W. Gaston Fairey, The Criminal Law of South Carolina 146 (2d ed.
1989)).
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cated that it was not. Specifically, in the course of discussing the fair
trial element during the resolution of Green's appeal, the court stated:
In most of the South Carolina cases involving peremptory
challenges, appellants have failed to satisfy the first step of
this process. In only one South Carolina case have we
reached the second step of the review procedure. State v.
Cooper, 291 S.C. 332, 353 S.E.2d 441 (1986).[2] In Cooper,
appellant asserted that the trial court erroneously qualified
a highway patrolman as a juror who should have been
excused for cause because he fell under a statutory exclu-
sion. For purposes of that opinion, we clarified the applica-
tion of the statute and noted the judge's error in his
interpretation of the statute. However, because we reversed
that case for other reasons, it was not necessary for us to
determine whether that error alone would have warranted
reversal. In other words, we did not engage in the third[, fair
trial] step of the process. . . .
392 S.E.2d at 160. This passage at least implies that the fair trial ele-
ment has always been an unstated element of the test for a new trial.
In reliance thereon, the State argues that we are not entitled to second-
guess, in a federal habeas corpus proceeding, a state court's construc-
tion of its own law.
Second, the State relies upon two pre-1990 decisions in which the
Supreme Court of South Carolina alluded to the fair trial element ulti-
mately made explicit in Green. See State v. Weaver, 36 S.E. 499, 501
(S.C. 1900); State v. Plath, 284 S.E.2d 221, 227 (S.C. 1981). A cen-
tury ago, in Weaver, one ground upon which an appellant sought
review was the trial court's erroneous denial of a motion to excuse a
juror for cause, which the defendant claimed resulted in the premature
exhaustion of his peremptory challenges. The Supreme Court of
South Carolina rejected this as a basis for a new trial for several rea-
sons. First, it noted that this assertion was "speculative" because none
of the jurors who were actually seated had been challenged -- either
peremptorily or for cause. Id. at 500. Second, the court found that the
_________________________________________________________________
2 We note that Cooper makes no mention whatsoever of the fair trial
element.
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trial court had not erred in declining to excuse the juror for cause. Id.
at 501. Third, the court noted, in the alternative, that "in view of the
fact that, so far as appears from the record before us, there was not
a single person on the jury which tried the case to whom any objec-
tion was interposed, we do not see that the appellants have any legal
ground of complaint." Id. Fourth, the court found that the defendant
had not exhausted his peremptory challenges before the jury was
impaneled. Id. Although the first and third bases relied upon in Wea-
ver were holdings in the alternative, the court, in those bases, at least
suggested the "fair trial" showing to be necessary before a new trial
would be ordered.
Subsequently, in the 1981 Plath decision, South Carolina again
appeared to endorse a fair trial element. Plath , 284 S.E.2d at 227.
There, the defendant claimed error in the trial court's rejection of his
attempt to exercise a peremptory challenge after the jury had been
seated but before it had been sworn. The court essentially assumed
that the denial had been error but nonetheless found no abuse of dis-
cretion because the defendant could not demonstrate the deprivation
of a fair trial flowing from this error:
[T]he rationale of the court in [State v. Holland, 201 S.E.2d
118, 118 (S.C. 1973)] is applicable: . . . "No showing was
made to the court at trial, nor has any been made since, to
indicate bias or lack of impartiality on the part of this juror[,
whom defendant had attempted to excuse by peremptory
challenge on the third day of trial]". . . .
[Similarly,] Plath had ample opportunity to examine the pro-
spective juror on voir dire. The record shows the trial judge
gave counsel for Plath two opportunities to strike the juror;
one when she was accepted and the other later in the jury
selection process. Furthermore, co-defendant Arnold con-
tended removing a juror after all of the jurors and alternates
had been seated would prejudice his case. Plath has not
shown the requisite prejudice to him in order to hold the
trial judge abused his discretion by refusing to allow the
belated peremptory challenge to be exercised.
Id. at 360 (emphasis added). This passage implied that, even if it was
error to deny the use of a peremptory challenge, that error would not
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constitute an abuse of the trial court's discretion unless some "show-
ing" could be made that a juror seated on the panel was "bias[ed]" or
"impartial[ ]." Id. The Staterelies upon Weaver and Plath in asserting
that the fair trial element -- articulated as the third element in the
1990 decision resolving Green's direct appeal -- has actually been,
for the last century, an unstated element of the new trial test.
On the contrary, we believe that under the South Carolina law in
effect prior to Green's appeal, he had a clearly established right to a
new trial upon a demonstration of two elements -- (1) that he had
wasted a peremptory challenge on a juror who should have been
excused for cause, and (2) that he exhausted his peremptory chal-
lenges before the jury was impaneled -- but without the third element
-- a demonstration that he had been deprived of a fair trial. Although
the view of the Supreme Court of South Carolina relating to the law
in that state would ordinarily be conclusive on this question, we are
unable to rely upon that view here because the highest court has artic-
ulated conflicting characterizations of its law. In its 1990 Green deci-
sion, the Supreme Court of South Carolina arguably implied that the
fair trial element had always been an unstated part of the new-trial
test, but, in its 1999 Short opinion, the court stated that such a show-
ing had never been required:
We now overrule Plath and adopt the majority rule that no
showing of actual prejudice is required to find reversible
error for the denial or impairment of the right to a peremp-
tory challenge. We note that Plath is distinguishable from
our other decisions discussing "prejudice" in the denial of a
peremptory challenge where the issue actually turned on
whether the complaining party had established he was
denied the right to exercise a peremptory challenge. Where
such a denial was established, we implicitly applied the
majority rule discussed above and reversed without a show-
ing of actual prejudice. See State v. Anderson, 276 S.C. 578,
281 S.E.2d 111 (1981) (prejudice in wrongfully limiting
number of peremptory challenges where defendant exer-
cised all permitted); Moore v. Jenkins, 304 S.C. 544, 405
S.E.2d 833 (1991) (failure to use side-to-side procedure in
allowing peremptory challenges in a case with multiple
defendants prejudiced the plaintiff as a matter of law). In
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cases finding no prejudice, on the other hand, we actually
determined the complaining party had not established the
denial of a peremptory challenge. See Laury v. Hamilton,
317 S.C. 503, 455 S.E.2d 173 (1995) (no prejudice where
party received greater number of strikes than that to which
he was entitled under side-to-side method); State v. Holland,
261 S.C. 488, 201 S.E.2d 118 (1973) (no prejudice in limit-
ing number of peremptory challenges where defendants
used fewer than allowed). Before reversible error can be
found, the complaining party must of course establish the
denial of his right to exercise a peremptory challenge.
Id. at 360-61 (emphasis added). Thus faced with two statements --
(1) an initial statement that the fair trial element has always been
implied in the test, and (2) a subsequent statement that the fair trial
element had, by negative implication, never been part of the test --
we cannot unquestioningly rely on the Supreme Court of South Caro-
lina's statement in Green.
We have thus independently reviewed the applicable law. From our
review, it is immediately apparent that no decision, prior to Green's,
required a demonstration that the defendant had been deprived of a
fair trial; indeed, the Green court acknowledged as much. Green, 392
S.E.2d at 160. The heretofore absence of this requirement is signifi-
cant because the South Carolina courts had granted a new trial at least
twice, in Sanders and Anderson, without mentioning the fair trial ele-
ment. We also give some weight to the fact that numerous South Car-
olina decisions had considered the question presented in this case
without mentioning the "fair trial" element. See supra note 1. Under
the facts present here, we can only conclude that the rule in effect
prior to Green's case was that he was entitled to a new trial upon a
demonstration of the two elements discussed above.
In this light, we must conclude that -- prior to the resolution of his
direct appeal in 1990 -- Green would have received a new trial. The
change in law -- to add the third, so-called "fair trial" element, effec-
tively deprived him of that previously guaranteed right. On these
facts, "there exists a liberty or property interest which has been inter-
fered with by the State." Stewart, 7 F.3d at 392.
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b.
Having resolved the first question in Green's favor, we next turn
to the second issue: "whether the procedures attendant upon that
deprivation were constitutionally sufficient." Id. Assessing the ade-
quacy of procedure here requires that we balance the interest of the
state against those of Green: "[T]he very nature of due process
negates any concept of inflexible procedures universally applicable to
every imaginable situation." Wolff, 418 U.S. at 560 (quotation omit-
ted). Thus, "[c]onsideration of what procedures due process may
require under any given set of circumstances must begin with a deter-
mination of the precise nature of the government function involved as
well as of the private interest that has been affected by government
action." Id. (quotation omitted).
There are two competing interests underlying our determination of
whether Green was afforded sufficient process in connection with this
change in law. On one hand, our common-law system requires that
courts have the opportunity to make law through decisions rendered
in individual cases, necessarily requiring that rules will develop and
change through the cases themselves. See Brinkerhoff, 281 U.S. at
681 n.8. On the other hand, defendants must have fair warning of the
law under which they are tried, and "[t]here can be no doubt that a
deprivation of the right of fair warning can result . . . from an unfore-
seeable and retroactive judicial expansion of narrow and precise statu-
tory language." Bouie v. City of Columbia, 378 U.S. 347, 352 (1964).
Our task here is to balance these interests, without unduly burdening
the right of the state courts to resolve questions under common law
or the right of defendants to fair warning.
In this light, a change in substantive law by a state that effects a
deprivation of a right can occasion a violation of procedural due pro-
cess. See, e.g., Douglas v. Buder, 412 U.S. 430, 432 (1973); Bouie,
378 U.S. at 352-55; Brinkerhoff, 281 U.S. at 681-82; cf. NAACP v.
Alabama ex rel. Patterson, 357 U.S. 449, 455 (1958) (discussing state
procedure in context of Supreme Court jurisdiction). Brinkerhoff
illustrates an application of this principle. There, the Supreme Court
of Missouri had held, in a decision preceding Brinkerhoff's case, that
a specific state administrative body ("state tax commission") did not
have the power to consider an application for tax relief. Then, when
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Brinkerhoff sought tax relief in state court, the Supreme Court of Mis-
souri held that he could not sue in state court until he had first pres-
ented an application for tax relief to the state tax commission.
Because the previous rule -- barring applications for tax relief to the
state tax commission -- had been clear and unambiguous, because the
change in law was unforeseeable, and because the unforeseeable
change effectively deprived the plaintiff of any remedy, the Supreme
Court concluded that there had been a Due Process violation. In so
holding, the Court noted:
But our decision in the case at bar is not based on the
ground that there has been a retrospective denial of the exis-
tence of any right or a retroactive change in the law of reme-
dies. We are not now concerned with the rights of the
plaintiff on the merits, although it may be observed that the
plaintiff's claim is one arising under the federal Constitution
and, consequently, one on which the opinion of the state
court is not final; or with the accuracy of the state court's
construction of [state law]. Our present concern is solely
with the question whether the plaintiff has been accorded
due process in the primary sense -- whether it has had an
opportunity to present its case and be heard in its support.
Undoubtedly, the state court had the power to construe the
statute dealing with the state tax commission; and to re-
examine and overrule [its own authority]. Neither of these
matters raises a federal question; neither is subject to our
review. But, while it is for the state courts to determine the
adjective as well as the substantive law of the state, they
must, in so doing, accord the parties due process of law.
Whether acting through its judiciary or through its Legisla-
ture, a state may not deprive a person of all existing reme-
dies for the enforcement of a right, which the state has no
power to destroy, unless there is, or was, afforded to him
some real opportunity to protect it.
Id. at 681 (footnotes omitted).
A defendant thus must establish several elements to prove a depri-
vation of procedural due process based on a state's change of its law.
First, he must establish that there was a clear, settled rule in effect
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prior to his case. See Brinkerhoff, 281 U.S. at 678 ("Under the settled
law of the state, that remedy was the only one available."); Bouie, 378
U.S. at 352 (noting that statutory language was"narrow and precise");
Wolff, 418 U.S. at 557 (noting that statute created "right to good
time"); cf. NAACP, 357 U.S. at 456 (noting that prior rule arose from
"past unambiguous holdings"). Second, he must establish that the
decision in his case constituted a change in the heretofore clearly
established rule. See Brinkerhoff, 281 U.S. at 677 ("No one doubted
the authority of [a prior holding] until it was expressly overruled in
the case at bar."); Bouie, 378 U.S. at 352 (expansion of narrow lan-
guage); Wolff, 418 U.S. at 557 (denial of right to good time credits);
cf. NAACP, 357 U.S. at 456 (change in procedure). Third, the defen-
dant must establish that the change in law effecting a deprivation of
a right occurred in the absence of sufficient procedure -- that the state
did not "afford[ ] to him some real opportunity to protect [his right]."
Brinkerhoff, 281 U.S. at 682.
Because the first and second elements above are established here,
see supra at 12, we must focus on the third. Green asserts that he did
not receive enough notice (1) to make a record sufficient to satisfy the
"fair trial" showing on appeal nor (2) to preserve, brief, or argue
against this change in law. Therefore, we have carefully examined the
notice that Green was afforded.
In that regard, the prior South Carolina authorities on this issue
guide our review. Although South Carolina had, prior to Green's
appeal, granted a new trial upon a demonstration of two elements, the
Supreme Court of South Carolina had at least suggested, in both its
Weaver and Plath decisions, that a third, "fair trial" showing might be
required. Further, there had been no prior explicit rejection, in any
decision, of the fair trial element that was ultimately adopted by the
court in resolving Green's appeal. Cf. Brinkerhoff, 281 U.S. at 682 n.9
("Had there been no previous construction of the statute by the high-
est court, the plaintiff would, of course, have had to assume the risk
that the ultimate interpretation by the highest court might differ from
its own."). In assessing the notice given, we also must give weight to
the fact that, in the 1999 Short decision, the Supreme Court of South
Carolina considered the "fair trial" element sufficiently established to
necessitate overruling its 1981 Plath decision. The Supreme Court has
indicated that if prior state law "suggest[ed]" a new rule, then the
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change of law was foreseeable, NAACP, 357 U.S. at 457; accord,
Reich v. Collins, 513 U.S. 106, 112 (1994) (reviewing Georgia case
law), and in the factual context present here, we thus conclude that
the change in law effected in Green's case was reasonably foresee-
able.
We agree with Green that the state was required to afford him "an
opportunity to present [his] case and be heard in its support."
Brinkerhoff, 281 U.S. at 681. However, we believe that a defendant
has sufficient notice to (1) make a record for appeal and (2) preserve,
brief, and argue against a change in the law if that change in the law
was reasonably foreseeable under the prior applicable law. See Bouie,
378 U.S. at 352 (deprivation of right of fair warning from "unforesee-
able and retroactive judicial expansion of narrow and precise statutory
language"); Douglas, 412 U.S. at 432 ("unforeseeable application of
that interpretation . . . deprived petitioner of due process"); cf.
NAACP, 357 U.S. at 457 (implying no Due Process violation if peti-
tioner "could . . . fairly be deemed to have been apprized of [the] exis-
tence [of local procedural rule]"). In reaching our conclusion today,
we do not necessarily endorse foreseeability as the benchmark in Due
Process claims; we merely conclude that if the change of law was rea-
sonably foreseeable based on indications in prior case law, then the
defendant had sufficient notice in the Due Process sense.
3.
In so holding, we are acutely aware that changes in applicable law
of this kind can produce results reasonably perceived as unfair; how-
ever, we are equally cognizant of the Supreme Court's admonition in
Brinkerhoff:
The process of trial and error, of change of decision in order
to conform with changing ideas and conditions, is traditional
with courts administering the common law. Since it is for
the state courts to interpret and declare the law of the State,
it is for them to correct their errors and declare what the law
has been as well as what it is.
Brinkerhoff, 281 U.S. at 681 n.8.
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In this context, we must also briefly address the arguments support-
ing the dissenting opinion of my good friend Judge Motz. Judge Motz
appears to endorse the adoption of a rule that when"a state's highest
court itself has established and for many years . . . consistently
adhered to a rule" (see post at 20), a departure therefrom is per se
unforeseeable. With respect, we cannot agree with this position. The
Supreme Court itself has recognized that state courts may overrule
clear, established rules consistent with Due Process: "State courts . . .
may ordinarily overrule their own decisions without offending consti-
tutional guaranties, even though parties may have acted to their preju-
dice on the faith of earlier decisions." Brinkerhoff, 281 U.S. at 681
n.8. This observation, in our view, undermines any notion of a per se
bar on changing a clear and established rule.
This brings us to what "process" must be provided in any specific
case, and we have concluded that a reasonably foreseeable change in
law satisfies the Due Process requirement. On this point, Judge Motz
asserts that the suggestions incorporated into Weaver and Plath were
insufficient to make a change in the law reasonably foreseeable.
Again, we must disagree. Of course the "suggestions" forecasting a
change in law will not come in controlling authority, for if those sug-
gestions had, they would have constituted the change in law them-
selves. In other words, something not co-extensive with the actual
change in law must be sufficient to meet the measure of "reasonable
foreseeability." While we cannot say that indications in prior case law
will always be sufficient, we have concluded that the indications in
Weaver and Plath were sufficiently analogous to the debate that might
ensue when a state's highest court is considering a question in the first
instance that counsel here had notice in the Due Process sense. Any
other approach would tend to convert any change in law into a federal
Due Process violation. In short, we simply do not believe that the
change of law effected here deprived Green of procedural due process,3
and the approach endorsed by Judge Motz would be likely to con-
strain development of the common law. Green's claim thus fails.
_________________________________________________________________
3 Because we conclude that the South Carolina courts correctly rejected
Green's Due Process claim, that decision was, by definition, not unrea-
sonable in the Williams sense. Williams , 120 S. Ct. at 1523.
17

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C.
Next, we address Green's assertion that he was deprived of effec-
tive assistance of counsel at the sentencing stage. Specifically, he
maintains that his counsel was deficient in failing to submit two miti-
gating factors to the jury: (1) lack of future dangerousness, and (2)
adaptability to prison life. The state PCR court, federal magistrate
judge, and district court each rejected this claim. We have carefully
considered Green's asserted instances of ineffective assistance, and
we are convinced that the state PCR court properly rejected these
claims. In any case, we certainly cannot conclude that the dismissal
of these claims was unreasonable under Williams , supra.
III.
For above-stated reasons, we affirm the denial of Green's petition
for habeas corpus.
AFFIRMED
MOTZ, Circuit Judge, dissenting:
I agree with most of Judge King's fine opinion. I agree that a
"clear, settled rule" existed in South Carolina prior to Green's case.
Ante at 14. I agree that this rule provided that a defendant was entitled
to a new trial (1) if he had wasted a peremptory challenge on a juror
who should have been excused for cause and (2) had exhausted his
peremptory challenges before the jury was impaneled. I agree that
Green satisfied both portions of this rule. I agree that the Supreme
Court of South Carolina's holding that Green must demonstrate an
additional element--deprivation of a fair trial, or actual prejudice--
constituted a change in this established rule. And I agree that such a
change, unless reasonably foreseeable, requires reversal, because if
Green could not foresee the change, he would not have had the oppor-
tunity to develop at trial a record that could support a finding of preju-
dice. These are the difficult questions presented by the case; the
majority persuasively and correctly deals with all of them. Yet it slips
in its ultimate holding, somehow finding that Green could have fore-
seen the abolition of this settled state rule in his case. From that ulti-
mate holding, I must respectfully dissent.
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As the majority recognizes, more than eighty years ago, the
Supreme Court of South Carolina established the clear rule at issue
here, a rule under which a petitioner need not demonstrate actual prej-
udice. See State v. Sanders, 88 S.E. 10, 12 (S.C. 1916). Moreover,
South Carolina's highest court has followed that rule on numerous
occasions. See, e.g., State v. Short, 511 S.E.2d 358, 360 (S.C. 1999);
State v. South, 331 S.E.2d 775, 778 (S.C. 1985); State v. Elmore, 308
S.E.2d 781, 784 (S.C. 1983); State v. Hardee, 308 S.E.2d 521, 524
(S.C. 1983); State v. Anderson, 281 S.E.2d 111, 112 (S.C. 1981);
State v. Britt, 117 S.E.2d 379, 385-86 (S.C. 1960); State v. Gregory,
174 S.E. 10, 11 (S.C. 1934); State v. King, 155 S.E. 409, 420 (S.C.
1930); see also Moore v. Jenkins, 405 S.E.2d 833, 835 (S.C. 1991)
(finding "prejudicial as a matter of law" the method of allotting
peremptory strikes in a multiple-defendant case by which each party,
rather than each side, exercised the statutorily-mandated number of
strikes); William Shepard McAninch & W. Gaston Fairey, The Crimi-
nal Law of South Carolina 146 (2d ed. 1989) ("South Carolina treats
the wrongful deprivation of a peremptory challenge as error per se so
long as all peremptory challenges are exhausted."). As the majority
observes, "it is immediately apparent that no decision, prior to
Green's, required a demonstration that the defendant had been
deprived of a fair trial; indeed, the [Supreme Court of South Carolina
in] Green . . . acknowledged as much." Ante at 12. Nevertheless, the
majority concludes that prior to Green's case, the Supreme Court of
South Carolina "suggested" a change in this long established rule,
making that change "foreseeable" by Green.
How is that possible? The majority's conclusion seems to me to be
paradoxical. I have not found a single case (and the majority cites
none) which has held, as the majority does here, that a state's supreme
court, after establishing and for eighty years invariably following a
"clear, settled rule," has somehow simultaneously "suggested" a radi-
cal change in that rule. A state rule is not clear and settled for due pro-
cess purposes until enunciated by the state's highest court. When
"there [has] been no previous" ruling on point by that court, a litigant
must "assume the risk that the ultimate interpretation by the highest
court might differ from its own." See Brinkerhoff-Faris Trust & Sav.
Co. v. Hill, 281 U.S. 673, 682 n.9 (1930). Indeed, even if a litigant
relies on a valid state court decision, the state's highest court may
overrule that decision without violating the litigant's due process
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rights. But when, as here, a state's highest court itself has established
and for many years so consistently adhered to a rule such that it is
"clear" and "settled," how can a litigant, consistent with Due Process,
be required to "assume the risk" that the highest court will refuse to
follow its own established rule in his case? The answer is that he can-
not.
Rather, as the Supreme Court noted in Brinkerhoff, when a state's
highest court has clearly established a rule as"the settled law of the
State, . . . it would . . . be[ ] entirely futile" for a litigant to pursue a
defense based on the possibility that the rule might be different in his
case. 281 U.S. at 678-79. Indeed, it would run contrary to our expec-
tation that litigants assert only potentially meritorious arguments to
require them to present a defense on the assumption that a "clear, set-
tled rule" established and consistently followed by the state's highest
court might change. Yet such is the effect of the majority's holding.
To support its conclusion that the Supreme Court of South Carolina
"suggested" a change in its own clear and settled rule requiring no
showing of prejudice, the majority relies on State v. Weaver, 36 S.E.
499, 501 (S.C. 1900), and State v. Plath, 284 S.E.2d 221, 227 (S.C.
1981). But the Supreme Court of South Carolina decided Sanders,
establishing this rule, sixteen years after Weaver, thus implicitly over-
ruling any holding to the contrary in Weaver. Moreover, just last year
in Short, the Supreme Court of South Carolina carefully explained
that Plath did not govern cases like that at hand. See 511 S.E.2d at
360-61 (explaining that Plath did not address timely peremptory chal-
lenges improperly denied during the normal course of voir dire, but
rather addressed only belated peremptory challenges, asserted after
the jury had been impaneled). In Short, South Carolina's highest court
not only extended its rule requiring no showing of actual prejudice to
belated peremptory challenges, but also, and more importantly for our
purposes, emphasized that it had always followed and continued to
follow this well-established rule for timely peremptory challenges. Id.
In sum, the two cases--Weaver and Plath--that form the entire
basis of the majority's "foreseeability" holding do not provide any
evidence that the Supreme Court of South Carolina contemplated
changing its well-established rule to require an additional element.
Weaver is 100 years old and was implicitly overruled by South Caro-
20

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lina's highest court more than 80 years ago; as for Plath, the Supreme
Court of South Carolina has expressly stated that Plath never applied
to or governed cases like that at hand. The majority's reliance on
these two non-controlling cases to hold that Green should have fore-
seen a radical change in well-established state law is directly contrary
to the Supreme Court's express refusal to lend non-controlling cases
such weight. See Bouie v. City of Columbia, 378 U.S. 347, 357-59
(1964) (rejecting contention that indications of change in state civil
trespass law should have led a litigant to anticipate a change in crimi-
nal trespass law).*
In this case, no one disputes that the state trial court clearly erred
in failing to disqualify a juror for prejudice on the basis of his racial
bias, and today's opinion correctly holds that under the clear and set-
tled state rule in effect at the time, that error warranted a new trial.
And yet the majority looks to cases that the state's highest court has
either overruled or deemed non-controlling to find that even though
the trial court erred, even though on appeal the state rule was changed
only for this one petitioner, still his counsel could have foreseen, from
review of such non-controlling case law, that the state rule could
change. I cannot vote to uphold a capital conviction when a defendant
has not had a full opportunity to demonstrate prejudice in the compo-
sition of the jury that convicted him. I therefore respectfully dissent.
_________________________________________________________________
*The majority nevertheless maintains that hints of a change in law
must necessarily come in non-controlling case law. I respectfully suggest
that a hint could lie in a subsequent case on point that declined to reach
the relevant issue, or a subsequent case on point that followed doctrine
but suggested misgivings in dicta, or a subsequent case on point from a
lower court that criticized the relevant rule of law.
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