Aquil v. State of SC ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KARIM ABDUL RAHIM AQUIL,
Petitioner-Appellant,
v.
No. 95-7634
STATE OF SOUTH CAROLINA;
ATTORNEY GENERAL OF SOUTH
CAROLINA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Cameron McGowan Currie, District Judge.
(CA-93-1311-3-22BC)
Submitted: February 29, 1996
Decided: March 26, 1996
Before WILKINS and WILLIAMS, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Karim Abdul Rahim Aquil, Appellant Pro Se. Donald John Zelenka,
Chief Deputy Attorney General, Columbia, South Carolina, for
Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Karim Abdul Rahim Aquil appeals from the district court's order
granting Respondents' motion for summary judgment on his 28
U.S.C. § 2254 (1988) petition. The exact claims raised in that petition
are as follows:
A. Ineffective assistance of counsel
1. Counsel failed to object to the insufficient
notice of trial.
2. Counsel failed to object to the trial court's
jury charge, failed to demand to see a yellow
piece of paper given by the judge to the jury
foreman and failed to request a correction of
the jury charge or additional charge.
3. Counsel was ineffective because he was ill
and unable to function properly and was under
a doctor's care at the time of trial.
4. Counsel should have objected on the record to
the trial judge stating, between the time of
conviction and the time of sentencing, that if
the Petitioner would plead guilty to the other
outstanding charges, the trial judge would not
sentence Petitioner to the maximum term of
imprisonment.
5. Counsel knew that the charges against the
Petitioner were malicious prosecution on the
part of Deputy Sheriff O'Neal.
2
B. Denial of due process.
1. Insufficient notice of trial date.
a. The petitioner was given one day notice of
trial.
2. Malicious prosecution on the part of the State.
3. The trial judge refused to allow the Petitioner
to present the undercover participant in his
defense.
4. The Petitioner was denied his right to a direct
appeal, in that trial counsel failed to perfect
the appeal.
C. Denial of a fair and impartial trial.
1. Perjury testimony by State's witness.
a. One State witness testified that she had not
been wearing a listening device at the time
of the drug buy, which conflicted with testi-
mony of two other witnesses that she had
been wearing such a device.
2. The trial judge made a highly prejudicial jury
charge.
3. The trial judge was guilty of misconduct, prej-
udice, and bias.
D. Denial of Fifth and Fourteenth Amendment rights.
1. The trial court allowed the State to use its
peremptory challenges in a racially discrimi-
natory manner.
3
E. Denial of Sixth and Fourteenth Amendment rights.
1. Trial attorney failed to move for a continuance
when he was not prepared to go to trial.
2. Trial counsel failed to subpoena witnesses
necessary to the defense presented on Petition-
er's behalf.
3. Trial counsel did not advise Petitioner that he
should testify after establishing a defense
strategy making Petitioner's testimony neces-
sary.
4. Trial counsel admitted during evidentiary
hearing on Post Conviction Relief that he ren-
dered ineffective assistance to his client (Peti-
tioner).
Claims A2, A3 A4, and A5 were never properly presented to the
Supreme Court of South Carolina. If Aquil were to attempt to present
them before that court now, however, he would be barred by South
Carolina law. S.C. Code Ann. § 17-27-90 (Law. Co-op. 1985); Land
v. State, 274 S.C. 243, 246, 262 S.E.2d 735, 737 (1980). Aquil has
shown no cause for lifting this bar and accordingly they are dismissed
as barred. See Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir.
1995), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Feb. 27, 1996)
(No. 94-4008). Claims B2 and C2 were never raised at trial and there-
fore are barred by South Carolina's contemporaneous objection rule
and not subject to federal review. Peeler v. State, 277 S.C. 70, 283
S.E.2d 826 (1981).
Regarding Aquil's claims A1, B4, C1, D1, E1, and E2, we deny a
certificate of probable cause to appeal and dismiss on the reasoning
of the district court. Aquil v. South Carolina , No. CA-93-1311-3-
22BC (D.S.C. Sept. 15, 1995). We also dismiss claims E3 and E4,
finding that they were not preserved for appellate review. Aquil filed
only general objections to the magistrate judge's denial of relief based
on claims E3 and E4 and therefore waived de novo review by the dis-
4
trict court. See Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
Aquil thereby also waived appellate review of claims E3 and E4. See
Thomas v. Arn, 474 U.S. 140 (1985); United States v. Schronce, 727
F.2d 91, 93 (4th Cir. 1984), cert. denied, 467 U.S. 1208 (1985). We
address Aquil's remaining claims--B1, B3, and C3--on the merits.
Addressing claim B1 first, we initially note that a denial of a con-
tinuance may state a due process violation in relation to its effect on
a petitioner's ability to secure witnesses. See Shirley v. North
Carolina, 528 F.2d 819 (4th Cir. 1975) (holding that denial of contin-
uance to secure the attendance of a defense witness was a denial of
due process where the government had delayed the case sixteen
months and where the witness was explained to be"indispensable" to
the defense). However, to obtain a continuance to secure the atten-
dance of a witness, the moving party must show:"`who [the wit-
nesses] are, what their testimony will be, that it will be relevant under
the issues in the case and competent, that the witnesses can probably
be obtained if the continuance is granted, and that due diligence has
been used to obtain their attendance for the trial as set.'" United States
v. Clinger, 681 F.2d 221, 223 (4th Cir.) (quoting Neufield v. United
States, 118 F.2d 375, 380 (D.C. Cir. 1941)), cert. denied, 459 U.S.
912 (1982). Our review reveals no sign that Aquil or his attorney ever
met this burden. Accordingly, this claim has no merit.
Turning to claim B3, we are unable to discern any ruling from the
trial judge which prevented Aquil from presenting witnesses who
were present and ready to testify. To the extent that this claim attacks
the judge's decision not to grant a continuance during which Aquil
might secure the presence of his witnesses, we again find no constitu-
tional violation.
Finally, addressing C3, we note that Aquil fails to explain the mis-
conduct, prejudice, or bias of which he complains. Reference to his
state post-conviction relief application, however, reveals complaints
that the trial judge engaged in misconduct, prejudice, and bias by: (1)
giving an improper jury instruction; (2) writing something on a yel-
low piece of paper and giving it to the jury without showing it to
either counsel; and (3) interfering in plea negotiations occurring on
other charges against Aquil.
5
Addressing the improper jury instruction first, we note that Aquil
never objected to the instruction at trial is therefore barred under
South Carolina's contemporaneous objection rule. Peeler, 277 S.C. at
70, 283 S.E.2d at 826. Turning to the next claim, a review of the jury
instructions reveals that the yellow paper in question was the general
verdict form. Since neither Aquil nor his attorney requested to see this
paper he cannot now assert that the judge's failure to present it to
counsel constituted error. Rowe Int'l, Inc. v. J-B Enter., Inc., 647 F.2d
830, 835 (8th Cir. 1981); Peeler, 277 S.C. at 70, 283 S.E.2d at 826.
Addressing Aquil's final claim of judicial misconduct--an allega-
tion that the judge told Aquil that if he agreed to plead guilty to other
charges he would not sentence him to the maximum term allowable--
we find that no such statement was made during Aquil's sentencing
hearing. However, even taking the evidence in the light most favor-
able to Aquil and assuming that it was made, we note that Aquil has
not demonstrated how this alleged statement prejudiced him in any
way. To the extent that he claims it affected his rights in relation to
the other charges, he has not revealed how he pled to those charges,
and thus there is no way to assess the effect of the alleged statement.
Further, an attack on the voluntariness of any guilty plea made to
these separate charges must be pursued through a direct appeal or an
application for post-conviction relief from those later convictions. To
the extent that Aquil claims that the alleged statement affected his
sentence in the present case, he has failed to demonstrate even a genu-
ine issue of such effect since he was sentenced well below the maxi-
mum allowable sentence.
Given our disposition of these final claims, we deny a certificate
of probable cause to appeal and dismiss the appeal. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the Court and argument would not
aid the decisional process.
DISMISSED
6