United States District Court, D. South Carolina
Jermaine T. McKelvey, Petitioner,
Warden, Cecelia Reynolds, Respondent.
ORDER AND OPINION
MARGARET B. SEYMOUR, SENIOR UNITED STATES DISTRICT JUDGE
Jermaine T. McKelvey is an inmate in custody of the South
Carolina Department of Corrections who currently is housed at
the Lee Correctional Institution in Bishopville, South
Carolina. This matter is before the court on petition under
28 U.S.C. § 2254 for writ of habeas corpus by a person
in state custody. ECF No. 1. The petition is governed by the
terms of 28 U.S.C. § 2254, as amended by the
Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”), which became effective on April 24,
shot Bernard Phoenix outside of a nightclub in Moncks Corner,
South Carolina. Petitioner subsequently was indicted for
assault and battery with intent to kill, possession of a
firearm during the commission of a violent crime, armed
robbery, and possession of crack cocaine. ECF No. 23-3,
252-60, 23-4. Petitioner maintained his innocence and
proceeded to trial on April 12-14, 2010, before the Honorable
R. Markley Dennis, Jr. Pertinent to the within § 2254
petition, the trial judge charged the jury regarding the
offense of assault and battery with intent to kill:
Let's look at the various charges now. First, I would
like to discuss with you the charge of assault and battery
with intent to kill. That's an interesting name. It says
“assault and battery, ” and we'll define
those for you, “with intent to kill.” Intent to
kill is not a required element of that charge notwithstanding
its name. The State doesn't have to prove a specific
intent to kill. So please remember that as you consider that
But the State has to prove beyond a reasonable doubt that the
defendant committed an unlawful act of a violent nature to
the person of another with malice aforethought. . . . Malice
is hatred, ill will or hostility towards another person. It
is the intentional doing of a wrongful act without any just
cause or excuse and with the intent to inflict an injury or
under circumstances that the law would infer an evil intent.
. . . Inferred malice may be shown from conduct showing a
total disregard for human life. Inferred malice may also
arise when the deed is done with a deadly weapon.
ECF No. 23-1, 396-99.
was convicted and sentenced to incarceration for a period of
one year for possession of crack cocaine, five years for
possession of a firearm during the commission of a violent
crime, twenty-seven years consecutive for armed robbery, and
twenty years for assault and battery with intent to kill, to
be served concurrently with the sentence for armed robbery.
ECF No. 23-1, 442-43.
South Carolina Commission on Indigent Defense filed on behalf
of Petitioner a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which the following
sole question was raised:
Did the trial judge commit reversible error, based on
State v. Belcher,  when, in charging the jury on the
law of assault and battery with intent to kill [AB1K], he
instructed the jury that “inferred malice may also
arise when the deed is done with a deadly weapon” when
evidence was presented that would reduce the ABIK to assault
and battery of a high and aggravated nature [ABHAN] and the
judge instructed the jury on the law of the lesser included
offense of ABHAN?
ECF No. 23-3, 245.
South Carolina Court of Appeals dismissed the appeal by
unpublished opinion filed March 7, 2012. ECF No. 23-7.
next filed an application for post-conviction relief (PCR),
as amended, in which he raised numerous grounds for relief.
See ECF No. 1-3, 17-46; 66-67; 69-75. Included in
his PCR application was a claim that trial counsel was
ineffective for failing to object to the jury instruction on
malice. The matter came before the Honorable Deadra L.
Jefferson for a hearing on May 19, 2014. The PCR judge filed
an order of dismissal on July 22, 2014. ECF No. 23-17. The
PCR judge observed that, at the hearing, trial counsel
testified that there was no evidence that would have reduced,
mitigated, excused, or justified the assault and battery with
intent to kill, or to support self-defense in this case.
Id. at 13. The PCR judge determined that the malice
instruction was proper and trial counsel had no basis to
object to the instruction. Id. at 23. The PCR judge
noted that, unlike the defendant in Belcher,
Petitioner did not claim self-defense and no evidence was
presented at trial that would reduce, mitigate, excuse, or
justify Petitioner's shooting of the victim. Id.
The PCR judge found the malice instruction was a correct
statement of law since Petitioner maintained his innocence,
presented no other defenses, and the only issue presented to
the jury was whether Petitioner was in fact the assailant and
committed the assault and battery with intent to kill.
Id. Accordingly, the PCR judge found that trial
counsel's failure to object to the malice jury
instruction did not result in deficient performance and that
trial counsel's performance did not affect the outcome of
the trial. Id.
South Carolina Commission on Indigent Defense filed a
petition for writ of certiorari on Petitioner's behalf in
which the following sole ground for relief was presented:
Did the PCR court err in failing to find trial counsel
ineffective for not objecting to the trial judge's jury
charge on assault and battery with the intent to kill (ABWIK)
when he instructed the jury that “inferred malice may
also arise when the deed is done with a deadly weapon”
which was error pursuant to State v. Belcher because
evidence was presented which would reduce the ABWIK to
assault and battery of a high and ...