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McKelvey v. Reynolds

United States District Court, D. South Carolina

November 3, 2016

Jermaine T. McKelvey, Petitioner,
v.
Warden, Cecelia Reynolds, Respondent.

          ORDER AND OPINION

          MARGARET B. SEYMOUR, SENIOR UNITED STATES DISTRICT JUDGE

         Petitioner 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, 1996.

         I. FACTS

         Petitioner 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 charge.
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.

         Petitioner 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.

         The 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, [1] 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.

         The South Carolina Court of Appeals dismissed the appeal by unpublished opinion filed March 7, 2012. ECF No. 23-7.

         Petitioner 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.

         The 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 ...

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