Graham v. State

THIS
OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS
PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Eric A. Graham, Appellant,

v.

State, Respondent.

Appeal from Darlington County

 Paul M. Burch, Circuit Court Judge

Unpublished Opinion No.  2008-UP-498

Submitted September 2, 2008 – Filed
September 5, 2008

AFFIRMED

Eric A. Graham, pro se Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant
Attorney General Karen C. Ratigan, Office of the Attorney General, of Columbia for
Respondent.

PER CURIAM:  Eric A. Graham appeals the dismissal of
his petition for writ of habeas corpus.  We affirm.[1]

FACTS
AND PROCEDURAL HISTORY

Graham
was convicted of murder and sentenced to life in prison by Judge Paul M. Burch
in August of 1998.  An Anders appeal was filed and dismissed.  Graham
then filed an application for post-conviction relief, and that application was
dismissed.  His subsequent writ of certiorari to the South Carolina Supreme
Court was denied.  Graham filed another application for post-conviction relief
which was also dismissed.  Graham then filed a petition for writ of habeas corpus
which was dismissed by Judge Burch acting in his capacity as chief
administrative judge.

Graham
appeals the dismissal of his petition for writ of habeas corpus.  The focus of
his appeal is on Judge Burch’s failure to recuse himself from ruling on the petition
as he was the presiding judge at his trial.  Graham also argues in a very
cursory fashion that his petition is meritorious.  

LAW/ANALYSIS

Graham
contends Judge Burch was required to recuse himself from considering the
dismissal of his petition for writ of habeas corpus because of his prior involvement
with Graham’s case.  We disagree. 

Canon 3(E)(1) of the Code of Judicial Conduct, Rule 501, South
Carolina Appellate Court Rules, provides
that “[a] judge shall
disqualify himself or herself in a proceeding in which the judge’s impartiality
might reasonably be questioned.”  This includes instances where “the judge has a personal bias or
prejudice concerning a party or a party’s lawyer, or personal knowledge of
disputed evidentiary facts concerning the proceeding.”  Code of Judicial
Conduct, Canon 3(E)(1)(a), CJC, Rule 501, SCACR.  However, the standard for
establishing such prejudice is high.

The alleged bias must stem from an
extrajudicial source and result in a decision based on other than what the
judge learned from his participation in the case. It is not enough for a party
to allege bias; a party seeking disqualification of a judge must show some
evidence of bias or prejudice. When no evidence is presented other than claimed
“adverse” rulings by the judge, the judge is not required to recuse himself.

Reading v. Ball, 291 S.C. 492,
494, 354 S.E.2d 397, 398 (Ct. App. 1987) (citations omitted). 

In the instant case, Graham has failed to put forth any evidence
that calls Judge Burch’s impartiality into question.  Furthermore, Judge Burch
was only acting in his capacity as chief administrative judge when he dismissed
Graham’s Petition.  Judge Burch performed a ministerial function dismissing the
case on procedural grounds because of Graham’s filing the petition in circuit
court as opposed to the original jurisdiction of the South Carolina Supreme
Court.  See Keeler v. Mauney, 330 S.C. 568, 571, 500 S.E.2d 123,
124 (Ct. App. 1998) (“A person is procedurally barred from petitioning the
circuit court for a writ of habeas corpus where the matter alleged is one which
could have been raised in a PCR application.   Furthermore, if a person is
procedurally barred, his only means of obtaining state habeas corpus relief is
to file a petition in the original jurisdiction of the Supreme Court.”).                                                                                             

Because there is no evidence of bias on the part of Judge Burch or
prejudice to Graham, the dismissal of Graham’s petition is

AFFIRMED.

ANDERSON,
WILLIAMS, and KONDUROS, JJ., concur. 

[1]  This case was decided without oral argument
pursuant to SCACR 215.