UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LEROY JOSEPH DRAYTON,

Petitioner - Appellant,

v.

MICHAEL W. MOORE, Commissioner,

No. 98-18

South 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 Charleston.

Patrick Michael Duffy, District Judge.

(CA-94-1608-2-23AJ)

Argued: October 30, 1998

Decided: January 12, 1999

Before MURNAGHAN, HAMILTON, and

MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion. Judge Murnaghan

wrote a dissenting opinion.

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COUNSEL

ARGUED: Sheri Lynn Johnson, CORNELL LAW SCHOOL, Ithaca,

New York; David P. Voisin, Columbia, South Carolina, for Appel-
lant. Donald John Zelenka, Assistant Deputy Attorney General,

OFFICE OF THE ATTORNEY GENERAL, Columbia, South Carolina, for Appellees. ON BRIEF: John H. Blume, CORNELL LAW

SCHOOL, Ithaca, New York, for Appellant. Charles M. Condon,

Attorney General, John W. McIntosh, Deputy Attorney General,

OFFICE OF THE ATTORNEY GENERAL, Columbia, South Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Leroy Joseph Drayton appeals the district court's dismissal of his

petition for a writ of habeas corpus. Drayton seeks relief from his

South Carolina convictions on kidnapping, armed robbery, and murder, for which he has been sentenced to death. We affirm the district

court's dismissal of the petition.

I.

On February 11, 1984, Drayton, who was armed with a revolver,

abducted Rhonda Smith from the Kayo gas station where she worked.

After Drayton forced Smith to drive them around for a short while,

they came back to the station, where Smith attended to customers who

had been awaiting her return. Thereafter, Drayton abducted Smith

again. This time, the two drove to an abandoned coal trestle, where,

according to Drayton's confession, he accidentally shot Smith to

death when he lost his balance and his gun struck a railing and discharged. The ensuing investigation revealed that money was missing

from the gas station. These events led to Drayton's conviction for

murder, kidnapping, and armed robbery, and he was sentenced to

death. After the South Carolina Supreme Court set aside that conviction, Drayton stood trial a second time. The result was the same, a

 2
guilty verdict and a death sentence. This time the South Carolina

Supreme Court affirmed his conviction.

Following the denial of his petition for state post-conviction relief,

Drayton sought a writ of habeas corpus in federal court. Upon the recommendation of the magistrate judge, the district judge denied Drayton's request for a hearing and discovery, granted summary judgment

for the state, and dismissed the petition.

Drayton appeals, advancing a number of issues. He contends he

was denied effective assistance of counsel at both the guilt and sentencing phases of his trial. He says the district court erred in denying

him an evidentiary hearing. He argues that the confession admitted at

his trial was obtained in violation of his rights under Miranda v.

Arizona, 384 U.S. 436 (1966), and Michigan v. Jackson, 475 U.S. 625

(1986). He believes that the state trial judge erred in refusing to

instruct the jury on manslaughter and that the judge's instructions led

the jury to believe it had to reach unanimity on the question of mitigating circumstances. And finally, he argues that he was denied due

process by the South Carolina Supreme Court because that court

failed to conduct a proportionality review as required by state statute.

II.

Drayton argues on several grounds that he was denied effective

assistance of counsel at his second trial. To prevail on any of the

grounds he raises, he must establish (1) that the representation he

received was deficient and (2) that he suffered prejudice as a result.

Strickland v. Washington, 466 U.S. 668, 687 (1984). In evaluating

Drayton's claim under Strickland's first prong, we must assess his

counsel's performance "from counsel's perspective at the time" of

trial. Id. at 689. And, Drayton must "overcome the presumption that,

under the circumstances, the challenged action `might be considered

sound trial strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91,

101 (1955)); see also Bell v. Evatt, 72 F.3d 421, 429 (4th Cir. 1995)

(citing Stickland for the proposition that"strategies devised after

extensively investigating the law and facts relevant to any and all

probable options are virtually unchallengeable"). To satisfy

Strickland's second (the prejudice) prong, Drayton must show that

"there is a reasonable probability that, but for counsel's unprofes-

 3
sional errors, the result of the proceedings would have been different." See Strickland, 466 U.S. at 694; see also Cardwell v. Greene,

152 F.3d 331, 339-40 (4th Cir.), cert. denied , 67 U.S.L.W. 3374 (U.S.

Dec. 3, 1998) (No. 98-6997).

Drayton mainly contests his lawyer's failure to introduce evidence

of his relationship with Rhonda Smith. Before trial Drayton told his

lawyer, William Runyon, that he had known Smith before the night

of her murder and that he had met her on Bonds Avenue, where he

had kept "her from being ripped off . . . by some folks in a drug deal."

Drayton told Runyon that he and Smith "were friendly" after that and

that "he would go by the Kayo station [where she worked]." Runyon,

however, did not introduce evidence of Drayton's relationship with

Smith at trial.1

On this issue we conclude that Drayton has not met either the performance or prejudice prong of Strickland. As the state and district

courts found, Runyon's decision not to introduce evidence of Drayton

and Smith's relationship was a reasonable strategic choice and was

not the result of oversight, carelessness, or failure to investigate the

case properly. As a general matter, Runyon wanted to pursue a different strategy than the one pursued at the first trial, which had resulted

in a conviction and a death sentence. Rather than portraying the

shooting as accidental, as defense lawyers at the first trial had done,

Runyon wanted to avoid placing Drayton at the crime scene altogether. Runyon took this approach because he believed that Drayton's

confession could be excluded and that, without the confession, the

state had only a circumstantial case. Introducing evidence that Smith

knew Drayton, Runyon feared, would make it "reasonably inferable

that he was the black man that was there that night and that she would

have gotten in the car and gone off with him."

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1 At Drayton's state post-conviction review hearing several witnesses

testified that Drayton and Smith had been romantically involved. Runyon

testified that Drayton had not mentioned any romantic involvement with

Smith and had not told him about many of the witnesses who could have

attested to Drayton's relationship with Smith. Runyon acknowledged that

Drayton did tell him about the drug deal, but Runion believed it would

have been difficult to track down witnesses to that event.

 4
Moreover, even assuming Runyon's performance was deficient,

Drayton has not shown prejudice. Drayton initially indicated to the

police that he did not know Smith. Thus, even if Drayton had introduced evidence of a relationship between himself and Smith, he

would have been faced with trying to reconcile that evidence with his

earlier statements to the contrary. In addition, Drayton's first trial, at

which evidence of his relationship with Smith was introduced,

resulted in a conviction and a death sentence. We therefore conclude

that, even if Runyon had introduced evidence of Drayton's relationship with Smith, there is no reasonable probability that the outcome

of the second trial would have been different.

Drayton raises one other guilt-phase ineffective assistance of counsel claim: he challenges his lawyer's failure to contest the forensic

evidence. This claim is procedurally barred, however, because Drayton did not raise it in state court. See Mallory v. Smith, 27 F.3d 991,

994 (4th Cir. 1994).

Drayton also asserts several claims based on his lawyer's decisions

at the penalty phase of the trial. First, he contends that his lawyer's

failure to introduce evidence about his adaptability to prison constitutes ineffective assistance. Several death row guards could have testified that Drayton had not been a troublemaker. Had this positive

testimony been introduced, Drayton argues, the jury might not have

recommended a death sentence.

Here again, Drayton cannot meet either of Strickland's requirements. His lawyer made a strategic calculation not to call these witnesses, in part because their testimony would have resulted in the

revelation that Drayton was on parole when Smith was murdered.

Runyon also wanted to avoid revealing to the jury that Drayton had

been held on death row. Finally, Runyon wanted to avoid the introduction of a damaging report by a doctor who felt Drayton would stay

in trouble in prison.2 Given these concerns, we cannot say that Runyon's decision not to introduce evidence about Drayton's behavior as

a prisoner on death row was unreasonable. Moreover, Drayton has not

established prejudice under Strickland. In addition to the problems

_________________________________________________________________

2 There is some dispute as to whether Drayton's lawyer would have had

to make this report available to the state.

 5
noted above, Drayton had in fact violated institutional rules at earlier

times: he had violated the terms of his prison work release program,

been involved in a fight, and engaged in sexual misconduct. Given all

of these problems, we do not believe there is a reasonable probability

that the jury would have recommended differently had Runyon introduced evidence of Drayton's good behavior on death row. Therefore,

we conclude that Runyon's decision not to introduce this evidence did

not amount to ineffective assistance of counsel.

Second, Drayton argues that Runyon should have requested an

instruction that the jury had to give the term life imprisonment its

ordinary meaning and that it was not to consider the possibility of

parole in recommending Drayton's sentence.3 At the penalty phase of

Drayton's trial, it was revealed that Drayton had twice committed

crimes while on parole. Runyon made a reasoned strategic decision

not to seek an instruction telling the jury to disregard the possibility

of parole in deciding whether to recommend life imprisonment. Given

Drayton's behavior on parole, Runyon said that he did not want to

"remind [the jury] of [parole]," noting, "[y]ou know, I'm not the esoteric appellate lawyer, I deal in the reality of life, I deal with what

those jurors think, and that's what I've got to deal with." This was not

ineffective assistance under Strickland.

Third, Drayton alleges that Runyon improperly failed to investigate

Drayton's mental state, alcohol and substance abuse, learning disabilities, and hypoglycemia. Again, Runyon testified that his strategy was

to present Drayton in a "positive" light (as did the lawyers at Drayton's first trial, for the most part). Runyon believed he had a very

good jury for his client, and he said that he didn't want to "rock the

boat" with negative testimony. Given the circumstances of this case,

we cannot say that this approach was unreasonable.

Finally, Drayton argues that Runyon's closing argument constituted ineffective assistance of counsel. Even assuming deficient performance, however, there is not a reasonable probability that the

outcome would have been different. We also reject Drayton's asser-

_________________________________________________________________

3 In other words, such an instruction would advise a capital jury not to

question whether a "life sentence" might still mean that a defendant

could be released on parole.

 6
tion that the cumulative effect of the bad decisions by his lawyer constituted ineffective assistance. Runyon's decisions were simply not

unreasonable when viewed from his perspective prior to and during

trial. In any case, Drayton has not established that he suffered prejudice from his lawyer's actions. Thus, we agree with the district court

that Drayton's Sixth Amendment right to counsel was not violated.

III.

Drayton next claims that he requested counsel at his bond hearing

and that the police violated his Sixth Amendment rights by questioning him thereafter. Drayton confessed to shooting Smith shortly after

the bond hearing, and his confession was admitted at trial. For the reasons outlined below, we do not believe Drayton's rights were violated.

The Sixth Amendment provides that an "accused shall enjoy the

right . . . to have the Assistance of Counsel for his defence." U.S.

Const. Amend. VI. This right is not limited to an accused's defense

at trial. See United States v. Ash, 413 U.S. 300, 309-310 (1973).

Instead, the right attaches at the initiation of adversarial proceedings

and continues through all "critical stages" of the process. See Maine

v. Moulton, 474 U.S. 159, 170 (1985) (noting that the Sixth Amendment affords a defendant the right to counsel after the initiation of

adversarial proceedings because "[i]t is then that a defendant finds

himself faced with the prosecutorial forces of organized society, and

immersed in the intricacies of substantive and procedural criminal

law." (quoting United States v. Gouveia, 467 U.S. 180, 189 (1984)

(quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972))).

In part because the right is so critical, the Supreme Court has held

that police may not reinitiate interrogation of an uncounseled defendant after he requests the assistance of a lawyer. See Michigan v.

Jackson, 475 U.S. 625, 635 (1986). The same rule applies whether a

defendant requests appointed counsel or indicates that he intends to

obtain private counsel. See Wilson v. Murray, 806 F.2d 1232, 1235

(4th Cir. 1986). Thus, if Drayton had effectively asserted his right to

counsel in one of these ways, any reinitiation of interrogation by

 7
police would have rendered his subsequent confession inadmissible at

trial.4

Whether Drayton requested counsel (or indicated that he would

retain private counsel) has been a matter of sharp dispute, and the

bond hearing was not transcribed. At the suppression hearing at trial,

Drayton testified that he requested appointed counsel at his bond

hearing. A police officer testified that Drayton indicated he did not

want appointed counsel and that he did not say whether he would

obtain private counsel. The presiding magistrate judge said that when

she asked Drayton "Can you afford an attorney, or do you want the

Court to appoint one for you," he responded "I don't want one." The

magistrate judge nonetheless noted that she was under the impression

that Drayton would obtain his own lawyer. In fact, she said that "[i]f

someone states to me . . . `I do not want an attorney,' I would in turn

tell that person that I doubt if the judge would even hear a guilty plea

without an attorney being present, you're going to have an attorney."

At the conclusion of the suppression hearing, the trial judge found

"beyond a reasonable doubt that [Drayton] did not assert his right to

counsel" at the bond hearing. We are required to afford the trial

court's factual findings on this matter a presumption of correctness.5

See Sumner v. Mata, 449 U.S. 539, 550 (1981).6 As indicated above,

the testimony presented to the trial judge on whether Drayton asked

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4 In Michigan v. Jackson and in Wilson v. Murray, the defendants

clearly and unquestionably sought counsel. See Jackson, 475 U.S. at 628

("During the arraignment, Jackson requested that counsel be appointed

for him."); Wilson, 806 F.2d at 1234 ("At the arraignment, Wilson indicated his intention to obtain counsel of his choice.").

5 Drayton filed his habeas petition prior to passage of the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA). We therefore apply

the pre-AEDPA standard of review to this case. See, e.g., Smith v.

Moore, 137 F.3d 808, 812 n.1 (4th Cir.), cert. denied, 119 S. Ct. 199

(1998).

6 Notwithstanding this presumption of correctness, we question the trial

court's finding that Drayton reinitiated contact with the police. The

record suggests otherwise. Were we convinced that Drayton reinitiated

contact, we would find his Sixth Amendment rights waived without further discussion.

 8
at the bond hearing for appointed counsel (or indicated would get

counsel himself) is conflicting and, in some instances, confusing. In

light of this, we cannot say that Drayton has offered anything sufficient to overcome the presumption that the trial judge's finding is

correct.7 Thus, the writ cannot be granted on the ground that Drayton's Sixth Amendment rights were violated.

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7 The dissent accepts the trial court's factual findings but nonetheless

contends that "[b]ased on the uncontroverted evidence . . . Drayton

invoked his right to counsel, as a matter of law." See post at 18. This

contention appears to be based on the state magistrate judge's "impression" that Drayton was getting his own lawyer. We disagree with the dissent that this "impression" can be taken as an"indicat[ion] . . . that

[Drayton] intended to retain his own counsel." See post at 18 n.3. In any

event, any such indication was ambiguous at best, see ante at 8, and the

clarity with which a defendant must "assert" his Sixth Amendment right

to counsel in this setting remains an open legal question. On the one

hand, the Supreme Court has noted "that we should`indulge every reasonable presumption against waiver of fundamental constitutional

rights,'" adding that "[t]his settled approach to questions of waiver

requires us to give a broad, rather than a narrow, interpretation to a

defendant's request for counsel -- we presume that the defendant

requests the lawyer's services at every critical stage of the prosecution."

See Jackson, 475 U.S. at 633 (quoting Johnson v. Zerbst, 304 U.S. 458,

464 (1938)). Under the Fifth Amendment, however, the Court has held

that a defendant must invoke his right to counsel"unambiguously," see

Davis v. United States, 512 U.S. 452, 459 (1994), an analysis that may

carry over to the Sixth Amendment in these circumstances. See, e.g.,

Michigan v. Harvey, 494 U.S. 344, 350-51 (1990) (noting that "Jackson

simply superimposed the Fifth Amendment analysis of Edwards onto the

Sixth Amendment" and dismissing the idea "that there should be a different exclusionary rule for Jackson violations than for transgressions of

Edwards and Miranda."); see also 475 U.S. at 640 (Rehnquist, J., dissenting).

The precedent, unsettled as it is, does not compel a conclusion contrary to the one reached by South Carolina's courts. This point is particularly important because we may not impose a new constitutional rule on

habeas review. See Teague v. Lane, 489 U.S. 288, 306-08, 310 (1989)

("Unless they fall within an exception to the general rule, new constitutional rules will not be applicable to those cases which have become final

before the new rules are announced."). Under Teague a rule is new if "the

result was not dictated by precedent existing at the time the defendant's

conviction became final." Id. at 301. We cannot say that precedent dic-

 9
IV.

Drayton next raises two Miranda claims. First, he contends that

police issued him a faulty set of Miranda warnings before he confessed. Specifically, the third time the warnings were given the police

advised Drayton that anything he said could be used"for or against"

him in court.

Under Miranda police must advise suspects of their Fifth Amendment right to avoid compulsory self-incrimination. See Miranda, 384

U.S. 436, 444 (1966). Miranda warnings, in their proper form, advise

suspects that their statements "can and will be used against" them. Id.

at 469. The Supreme Court has held, however, that the warnings need

not be administered with absolute precision. See California v.

Prysock, 453 U.S. 355, 359-361 (1981). Id. Notwithstanding this

allowance for flexibility, "for or against" warnings must be discouraged because, in some situations, they may mask the adversarial

nature of the interrogation. In Miranda the Court noted that the warnings were necessary, in part, to "make the individual more acutely

aware that he is faced with a phase of the adversary system -- that

he is not in the presence of persons acting solely in his interest."

Miranda, 384 U.S. at 469.

In Drayton's case, however, we find that the "for or against" formulation was inconsequential. Earlier in the day police had twice

administered correct Miranda warnings to Drayton, and, when asked

whether he understood his rights, Drayton responded"Man, I understand the rights . . . ."

In his other Miranda claim Drayton asserts that police did not

"scrupulously honor" his right to remain silent as Michigan v. Mosley,

423 U.S. 96, 104 (1975), requires. Drayton argues that police violated

Mosley by questioning him several times in one day. In Mosley the

police had administered warnings twice, with a two hour break in

_________________________________________________________________

tates a holding that Drayton asserted his Sixth Amendment rights. For

this reason, and because we must accept the trial court's factual findings,

we cannot grant the writ on the basis that Drayton's Sixth Amendment

rights were violated.

 10
between. Id. The Court observed that they"resumed questioning only

after the passage of a significant period of time," noting that "the

police gave full `Miranda warnings' to Mosley at the very outset of

each interrogation, subjected him to only a brief period of initial questioning, and suspended questioning entirely for a significant period

before beginning the interrogation that led to his incriminating statement." Id. at 106-07.

We believe police behavior in this case is consistent with what

Mosley allows. Police first administered the warnings when they

arrested Drayton on February 16, 1984, between 7:30 and 8:00 a.m.

When Drayton exercised his right to remain silent, the questioning

stopped. Police administered a second set of warnings several hours

later at headquarters. Again, when Drayton chose to remain silent, the

police suspended their questioning. Finally, after Drayton had

returned from his bond hearing and asked to speak with Lieutenant

Frazier, an officer with whom he had had prior contact, Frazier

administered a third set of warnings.8 We therefore agree with the district court, which found no Miranda violation in this case.

V.

Drayton next contends that he is entitled to an evidentiary hearing

in federal court because the judge who conducted his state postconviction review proceedings was racially biased. A district court

must grant a hearing if "for any reason it appears that the state trier

of fact did not afford the habeas applicant a full and fair fact hearing."

See Townsend v. Sain, 372 U.S. 293, 313 (1963); Cardwell v. Greene,

152 F.3d 331, 336 (4th Cir.), cert. denied, 67 U.S.L.W. 3374 (U.S.

Dec. 3, 1998) (No. 98-6997); see also Sumner v. Mata, 449 U.S. 539,

545 (1981).

It appears to us that Drayton had a full and fair hearing in state

court. The evidence and testimony were developed fully and were

adequate to enable the state judge to make his findings; although the

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8 It appears that police "interviewed" Drayton without giving Miranda

warnings prior to his request to speak with Frazier. This fact is of little

consequence here, however, because Frazier administered the warnings

before Drayton made any incriminating statements.

 11
judge did not believe witness testimony about the intimate nature of

Drayton and Smith's relationship, we do not find the judge's disbelief

to be indicative of underlying racial animus. Because the state court's

judgment is supported by the record and because we believe Drayton

had a full and fair hearing at the state court level, we affirm the district court's denial of Drayton's request for an evidentiary hearing.

VI.

Drayton argues that the state trial judge should have given an

instruction on manslaughter. Drayton contends that, despite his own

confession, in which he said that he shot Smith by accident, the evidence supported the position that he was provoked by Smith and shot

her in the heat of passion. To support this argument, Drayton points

to testimony that Smith signaled to customers that she would return

soon, "suggest[ing] the importance she placed on her time alone with

petitioner." Because Smith and Drayton could have been having a "serious personal discussion" on the trestle at the time she died, he

argues, the judge should have given the manslaughter instruction. Id.

The district court concluded that the record did not support such an

instruction. If we were to reach the merits, we would agree with the

district court.

Its dubious merits aside, this claim is procedurally barred because

it was not exhausted in state proceedings. See Mallory, 27 F.3d at

994. The same rule holds true even when state courts conduct in

favorem vitae review.9 See Matthews v. Evatt, 105 F.3d 907, 912-13

(4th Cir.), cert. denied sub nom. Matthews v. Moore, 118 S. Ct. 102

(1997); Kornahrens v. Evatt, 66 F.3d 1350, 1362-63 (4th Cir. 1995).

In Kornahrens the court found a claim procedurally barred where the

state court had conducted in favorem vitae review. The Court said

that, absent a defendant's specific objections, it could not "determine

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9 In favorem vitae review requires a "painstaking[ ] inspect[ion of] capital cases to determine whether prejudicial error has been committed in

a trial, irrespective of whether an assignment of error has been made by

the defendant." Drayton v. Evatt, 430 S.E.2d 517, 519 (S.C. 1993). South

Carolina courts no longer conduct this type of review. See Matthews v.

Evatt, 105 F.3d 907, 912 n.4 (4th Cir.), cert. denied sub nom. Matthews

v. Moore, 118 S. Ct. 102 (1997).

 12
whether the state court has properly applied federal constitutional

principles, or for that matter, whether the state court has even considered these issues at all." Kornahrens, 66 F.3d at 1362. In Matthews

the Court similarly found barred a claim that the defendant had raised

in a pretrial motion but had not raised on appeal. See Matthews, 105

F.3d at 912-13.

Drayton did not raise this issue on direct appeal. He nonetheless

argues that because the court conducted in favorem review and

because his issue was raised squarely at trial (unlike in Matthews

where the claim was raised in a pretrial motion), his claim should not

be barred. In other words, because his objection appeared in the trial

record, he argues, we can be sure to a degree not possible in other

cases that the state supreme court reviewed the issue. We decline to

formulate a new rule of the kind Drayton suggests. We fail to see the

distinction between a claim denied pretrial and one denied during

trial. A petitioner must raise his claims on appeal in order to ensure

habeas review.

VII.

Drayton's next claim is also barred. He argues that the trial judge's

instructions reasonably could have been construed to require juror

unanimity for finding mitigating circumstances. Because this issue

was not raised at trial or on direct review, it is procedurally barred.

The South Carolina Supreme Court refused to consider this issue on

direct review. Drayton also argues that the state court's procedural bar

rule is not consistently applied, which precludes our denial of habeas

review on grounds of procedural bar. See Johnson v. Mississippi, 486

U.S. 578, 588-89 (1988). Drayton contends that the South Carolina

Supreme Court sometimes hears claims that were not raised on direct

appeal. To illustrate his point, Drayton cites the supreme court's

acknowledgment in this case that it has not applied the rule with

mechanical consistency. See Drayton v. Evatt, 430 S.E.2d at 520

("Although we addressed direct appeal issues in Yates and Thompson,

we did so without discussion or consideration of section 17-27-20(b)

or the Simmons rule."); id. at 522-23 (Finney, J., dissenting) ("several

of this court's recent decisions reveal that it has . . . addressed direct

appeal issues during PCR review in both capital and non-capital

cases."). We need not sort through the procedural argument because

 13
Drayton's claim fails on the merits. See Eaton v. Angelone, 139 F.3d

990, 994 n.1 (4th Cir.) ("Because we agree with the district court's

denial of Eaton's ineffectiveness claims on the merits, we need not

resolve the thorny issue of procedural default."), cert. denied, 118

S. Ct. 2338 (1998). As the district court found:"[I]t is clear that the

trial court's instruction that the verdict must be unanimous was not

such as to give rise to a reasonable likelihood that the jury understood

the mitigating factors instruction as having to be unanimously agreed

upon by the jury." Drayton v. Evatt, C.A. No. 2:94-1608-23, slip op.

at 52 (D.S.C. Mar. 5, 1998). We agree.

VIII.

Finally, Drayton argues that a South Carolina statute requires that

the state supreme court conduct a "proportionality review" of all capital sentences.10 The supreme court did not conduct such a review, he

contends. The denial of that review, he continues, constitutes a due

process violation of his rights to life and liberty.

The South Carolina post-conviction review court found that the

state supreme court had performed its review correctly. The district

court also concluded that "the Supreme Court's opinion reflects that

it conducted an adequate proportionality review," noting that the court

explicitly stated that "[t]his case consolidates Drayton's direct appeal

and our mandatory review of the death sentence pursuant to S.C.

Code Ann. § 16-3-25 (1985)." See State v. Drayton, 361 S.E.2d 329,

331 (S.C. 1987). In any case, such a claim is insufficient to merit

granting the writ. See Buchanan v. Angelone, 103 F.3d 344, 351 (4th

Cir. 1996), aff'd, 522 U.S. 269 (1998).

_________________________________________________________________

10 The statute provides that in a direct appeal in a capital case the

supreme court shall determine:

(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and (2)

Whether the evidence supports the jury's or judge's finding of a

statutory aggravating circumstance . . . and (3) Whether the sentence of death is excessive or disproportionate to the penalty

imposed in similar cases, considering both the crime and the

defendant.

S.C. Code § 16-3-25(c).

 14
The judgment of the district court is

AFFIRMED.

MURNAGHAN, Circuit Judge, dissenting:

It is a well-established rule that when someone is accused of committing a crime, he need not prove his innocence. He may remain

completely silent. See, e.g., Miranda v. Arizona, 384 U.S. 436, 468

n.37 (1966) ("The prosecution may not ... use at trial the fact that

[defendant] stood mute or claimed his privilege [to remain silent] in

the face of accusation."). The police and prosecutors bear the burden

of proving his guilt beyond a reasonable doubt. See Sullivan v.

Louisiana, 508 U.S. 275, 277-278 (1993). Those considerations are

preeminently relevant in this case. The right of the accused to stand

silent is accentuated by the Miranda rule that upon his request for

counsel's advice all questioning by the police must cease until counsel has been afforded. Miranda, 384 U.S. at 474.

Obviously, the most effective procedure for the police and prosecutors to achieve a conviction is to secure a confession from the

accused. Here, such a confession was obtained from Drayton, and it

was generally recognized that it would have a substantial effect in

favor of securing a conviction. The difficulty, however, is that the

police secured that confession by continuing to interview Drayton

about the event in question after he had announced his desire to be

advised by counsel. Such continued interrogation violates the letter

and spirit of the law.

I.

After twice invoking his right to silence,1 Petitioner was taken to

a bond hearing, or arraignment, where he maintains that he invoked

his right to counsel. The magistrate judge presiding over the hearing

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1 One of the arresting officers testified that, at his arrest, Drayton was

advised of his Miranda rights and invoked his right to remain silent. The

officers then took Drayton to the Charleston County Police Headquarters

where he was again advised of his rights and, for a second time, invoked

his right to remain silent.

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clearly recalls that Petitioner intended to retain his own counsel. At

the suppression hearing, she further testified that if a defendant states

to her that he did not want an attorney, she would advise him that he

would have to have an attorney. Consistent with the magistrate's testimony, two police officers who were present at the bond hearing further testified that when the magistrate offered Drayton a form to

retain a public defender, he indicated that he did not want an

appointed attorney. When asked, each officer declined to testify that

Drayton did not desire any counsel at all.

After the hearing, Drayton was returned to police headquarters and

taken directly to an interview room, where he was further interrogated

by two police officers. While undergoing questioning by the officers,

Drayton overheard the familiar voice of Officer Frazier, who was a

prior acquaintance and friend of Drayton's family, and asked to speak

with him. In his discussion with Frazier, Drayton made the incriminating statement at issue.

While the trial court did not explicate any clear factual findings

before rendering its decision regarding the admissibility of Drayton's

confession, the facts as articulated above were the basis of the court's

decision and are either undisputed or the least favorable to Petitioner.

Here, I afford the trial court's limited factual determinations the deference they are due. See Sumner v. Mata, 449 U.S. 539, 550 (1981)

(determining that the trial court's factual findings are entitled to a presumption of correctness).

II.

Based on its factual findings, the state trial court found "that the

defendant did not assert his right to counsel ...[and] that he, himself,

initiated the giving of the statement to the police." Because "the statements made by the defendant were not as a result of any policeinitiated interrogation," the court concluded, they were admissible at

trial. While the trial court's factual findings are entitled to a presumption of correctness, see Sumner, 449 U.S. at 550, pure legal determinations and determinations of mixed questions of law and fact do not

receive such deference. See Miller v. Fenton, 474 U.S. 104, 117-118

(1985) (noting, in a due process case, that "independent federal

review has traditionally played an important parallel role in protecting

 16
the rights at stake when the prosecution secures a conviction through

the defendant's own admissions"). As the Supreme Court has

observed, "the ultimate question of the admissibility of a confession

merits treatment as a legal inquiry requiring plenary federal review."

Id. at 115. The court of appeals is bound "`to make an independent

evaluation of the record.'" Id. at 110. With this in mind, I do not challenge the trial court's apparent factual determinations. Rather, I dispute the court's application of clear legal principles to those facts.

More specifically, I believe that the court's legal conclusions that (1)

the presented facts do not establish that Drayton invoked his Sixth

Amendment2 right to counsel and that (2) Drayton "initiated" communication with law enforcement when he requested to speak with Officer Frazier are incorrect as a matter of law.

A.

Once an accused has exercised his right to remain silent, that assertion must be "scrupulously honored." Miranda, 384 U.S. at 479.

Miranda dictates that if the accused indicates that he wants to remain

silent or requests counsel, "the interrogation must cease." Id. at 474.

His request for counsel is not limited to his decision to be represented

by appointed counsel. To the contrary, "[a] defendant's statement that

he intends to arrange representation is equivalent to a request for an

attorney." Wilson v. Murray, 806 F.2d 1232, 1235 (4th Cir. 1986),

cert. denied, 484 U.S. 870 (1987). In the case at bar, the presiding

magistrate testified that, at the arraignment, Drayton indicated that he

would secure his own attorney. The police officers' testimony that

Drayton refused court-appointed counsel does nothing to impugn the

magistrate's recollection that he desired legal representation. Indeed,

her testimony is supported by the fact that the standard form, which

Drayton would have signed had he waived the assistance of counsel,

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2 The Sixth Amendment of the U.S. Constitution provides as follows:

"In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, which district shall have

been previously ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defence." U.S. Const. amend. VI.

 17
was not in the clerk's file, and there is no evidence that such a waiver

form was ever completed by Petitioner. Based on the uncontroverted

evidence,3 it seems obvious that Drayton invoked his right to counsel,

as a matter of law.

Contrary to the majority's assertion, by so arguing, I do not enunciate a new constitutional rule, in violation of Teague v. Lane, 489 U.S.

288 (1989). In my judgment, the law as it existed at the time of Petitioner's conviction, and certainly as it exists now, dictates a ruling in

his favor.

Assuming its application in the Sixth Amendment context, under

Davis v. United States, 512 U.S. 452 (1994), the invocation of a

defendant's right to counsel "requires, at a minimum, some statement

that can reasonably be construed to be an expression of a desire for

the assistance of an attorney." 512 U.S. at 459 (internal quotations

omitted). The defendant "must unambiguously request counsel." Id.

There is no evidence in the case at bar that Drayton's request was not

unambiguous, and the trial court made no such finding. The magistrate did not testify that she believed that Drayton might secure counsel. Nor did she testify that Drayton was hesitant, indecisive, or

equivocal in his request. She states, clearly, that she believed he

would retain counsel and insists that if she thought otherwise she

would have demanded that he secure the services of an attorney.

Since the hearing was not transcribed (and the magistrate was not

asked by either party during the suppression hearing), we do not know

what Drayton said to give her that impression; we only know that it

was her firm conviction that Drayton would retain his own attorney.

To invoke his right to counsel, Drayton need only"articulate his

desire to have counsel present sufficiently clearly that a reasonable ...

officer in the circumstances would understand the statement to be a

request for an attorney." Id. The magistrate, an officer of the court,

testified that she understood Drayton to make such a request. Her tes-

_________________________________________________________________

3 Petitioner Drayton, during the suppression hearing, did maintain that

he requested appointed counsel when he appeared at the arraignment.

Even assuming Drayton's contention to be false, however, the evidence

supports the fact that he invoked his right to counsel by indicating to the

magistrate that he intended to retain his own counsel.

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timony is further supported by the absence of the standard waiver

form in the clerk's file and the uncontroverted fact that Drayton had

twice invoked his right to remain silent before the bond hearing.

Combined, these facts compel a finding that Drayton invoked his

right to counsel.

To the extent that there is any ambiguity, and I do not believe that

there is, it is not in the magistrate's recollection of Drayton's intention

to retain an attorney. Rather, the ambiguity noted by the majority is

reflected in the words used by the magistrate to describe her own perception ("under the impression ...") -- words which were not

employed to comment on the clarity of Drayton's request but were

instead used to convey the magistrate's understanding of the events

-- her expectation, her view, her belief. She expresses no uncertainty

about the content of Drayton's intention. With this in mind and

remembering our ultimate charge under the Constitution, i.e., ensuring that the accused's right to have the assistance of counsel for his

defense is carefully protected, I am inclined to conclude that Petitioner legitimately invoked his right to counsel.

B.

Having expressed his intention to retain counsel, Drayton should

not have been questioned further by the police. As the Supreme Court

established in Edwards v. Arizona, 451 U.S. 477, reh'g denied, 452

U.S. 973 (1981), "an accused ... having expressed his desire to deal

with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him,

unless the accused himself initiates further communication,

exchanges, or conversations with the police." 451 U.S. at 484, 485

(discussing the Fifth Amendment privilege against selfincrimination). The Supreme Court subsequently applied Edwards to

the Sixth Amendment and articulated an even stricter rule in

Michigan v. Jackson, 475 U.S. 625 (1986). There, the Court held that

if the police initiate interrogation after a defendant's assertion of his

right to counsel at an arraignment, "any waiver of the defendant's

right to counsel for that police-initiated interrogation is invalid."

Jackson, 475 U.S. at 636 (emphasis added). The Court, in essence,

created a binding presumption of invalidity for determining whether

a waiver has, in fact, occurred. See Wilson, 806 F.2d at 1237.

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In the present case, the trial judge found that Drayton's request to

speak with Officer Frazier was "initiation," as contemplated by the

Court in Edwards and Jackson. I do not dispute the judge's characterization of the facts, but that characterization, as a matter of law, does

not constitute "initiation" on the part of Drayton. While a suspect's

request to talk to a law enforcement agent is typically considered an

"initiation" of communication by the suspect, United States v.

Cummings, 937 F.2d 941, 946-47 (4th Cir.) (affirming trial court finding that suspect, from jail, initiated interview with police by requesting to talk to law enforcement agent), cert. denied, 502 U.S. 948

(1991), such a conclusion is nonsensical and contrary to the demands

of the Sixth Amendment when an accused makes the request in

response to police interrogation. It is undisputed that the officers were

in the process of questioning Drayton when he heard Frazier's voice

outside the interrogation room. Drayton did not request the contact

with these officers, and when he eventually asked to speak with Frazier, he did not make the request from jail or a holding cell. Rather,

he was undergoing active interrogation about the murder with which

he had been charged. Drayton's request to speak to another officer,

in the midst of that interrogation, can hardly be interpreted as "initiation" under any fair and just reading of the law. See generally

Jackson, 475 U.S. at 633 (quoting Johnson v. Zerbst, 304 U.S. 458,

464 (1938), Court noted that "we should `indulge every reasonable

presumption against waiver of fundamental constitutional rights.'").

At best, the officers' continued interrogation evidences a blatant

disregard for the bright-line rule established by Edwards and Jackson.

The police-initiated interrogation was intended to compel a statement

from Drayton after he had exercised his right to silence and had

requested counsel. This continued questioning, alone, violated Drayton's Sixth Amendment right to counsel. Drayton's subsequent

request to speak to Frazier, which the officers could not have anticipated, was purely fortuitous.4

_________________________________________________________________

4 It is irrelevant that Drayton subsequently signed a written confession,

after being advised of his right to counsel, and initialed a specific, written

waiver of his right to counsel. The police improperly initiated an interrogation after Petitioner had requested counsel at his arraignment. Under

Jackson, any waiver of Petitioner's rights for that police-initiated interrogation is invalid. 475 U.S. at 636. Even if Drayton's statement was voluntary, it was obtained in contravention of the clear dictates of Jackson.

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Because Drayton expressed a desire to be represented by counsel

at his bond hearing and because he did not initiate further contact with

the police, his subsequent interrogation was impermissible under the

Sixth Amendment. As a consequence, the confession that resulted

from the interrogation was inadmissible and should have been suppressed. Since the appearance or non-appearance of the confession in

the records of the court and before the jury had a substantial effect on

the jury's outcome, as was recognized during oral argument, the error

in admitting it as evidence can hardly be characterized as harmless.

Therefore, I vote to reverse and remand the case for trial, excluding

the confession as evidence. In so voting, it is not necessary for me to

address other questions raised by Drayton since they can be considered at such subsequent trial, if indeed the questions arise.

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