PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOHN H. PLATH,
Petitioner-Appellant,

v.

MICHAEL W. MOORE, Director of the
South Carolina Department of
                                                                         No. 97-7
Corrections, in his official capacity;
CHARLES M. CONDON, Attorney
General of South Carolina, in his
official capacity,
Respondents-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
C. Weston Houck, Chief District Judge.
(CA-93-1857-3)

Argued: September 29, 1997

Decided: November 24, 1997

Before RUSSELL, NIEMEYER, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Russell wrote the opinion, in
which Judge Niemeyer and Judge Motz joined.

_________________________________________________________________

COUNSEL

ARGUED: David Paul Voisin, Columbia, South Carolina, for Appel-
lant. Lauri J. Soles, Assistant Attorney General, Columbia, South Car-
olina, for Appellees. ON BRIEF: John H. Blume, Columbia, South
Carolina, for Appellant. Charles Molony Condon, Attorney General,
Donald J. Zelenka, Assistant Deputy Attorney General, Columbia,
South Carolina, for Appellees.

_________________________________________________________________

OPINION

RUSSELL, Circuit Judge:

Petitioner John Plath ("Plath") appeals the denial of a writ of
habeas corpus by the District Court for the District of South Carolina.
Because we find that Plath presents no valid grounds for habeas relief,
we affirm the district court.

I.

Plath was the co-defendant of John D. Arnold ("Arnold"), against
whose habeas appeal this court ruled on May 14, 1997.1 The South
Carolina Court of General Sessions convicted both Plath and Arnold
of the 1978 kidnapping, rape, and murder of Betty Gardner, a Beau-
fort County, South Carolina woman, and sentenced both to death.

The facts of the case against Plath and Arnold are disturbing, and
have been summarized several times by both state and federal courts
in the last two decades. Most recently, we restated them in Arnold v.
Evatt, where we found that:

         In the early morning hours of April 12, 1978, cousins John
         Arnold and John Plath, who were in their early twenties,
         along with their respective eleven-year-old and seventeen-
         year-old girlfriends, Carol Ullman and Cindy Sheets, bor-
         rowed a friend's car and went looking for wild mushrooms.
         During their search they encountered farm worker Betty
         Gardner as she walked along the side of the road. Gardner
         hitchhiked a ride with the two couples, who took her to her
         brother's home. Gardner then asked if the group would take
_________________________________________________________________
1 Arnold v. Evatt, 113 F.3d 1352 (4th Cir. 1997).

                    2
          her to work, but they refused and drove off . . . They then
          went back, picked Gardner up, and took her to a remote
          wooded area near a garbage dump.2

There, Plath, Arnold and their girlfriends subjected Gardner to acts of
extreme cruelty and perversion.

According to testimony at trial, shortly after arriving at the wooded
area, Arnold knocked Gardner to the ground and he and Plath began
kicking her. Plath then ordered Gardner to undress, and forced her to
perform oral sex upon himself and Cindy Sheets ("Sheets"). While
Gardner performed oral sex upon Sheets, Plath beat Gardner with a
leather belt, and subsequently urinated in Gardner's mouth, forcing
her to swallow the urine.

Plath and Arnold then together attempted to strangle Gardner with
a piece of garden hose they found on the dump site. When this
method of execution proved unsatisfactory, Plath repeatedly stomped
on Gardner's neck, commenting that "niggers are sure hard to kill."
Afterwards, Plath stabbed Gardner some ten times in the chest, and
Arnold, using the garden hose, dragged Gardner by the neck into the
adjacent woods. Arnold returned to say Gardner did not seem to be
dead, and as a result Plath told Sheets to take a broken bottle and cut
Gardner's throat.

Sheets and Arnold finally strangled Gardner with the hose, and, in
an effort to mislead police, Arnold carved "KKK" into Gardner's
body. Nearly six weeks later, however, Sheets led authorities to Gard-
ner's badly decomposed body.

The South Carolina Supreme Court affirmed Plath's and Arnold's
convictions, but reversed the death sentences and remanded the case
for resentencing.3 After a resentencing trial before a jury, the Court
of General Sessions again imposed the death penalty on both defen-
dants. Plath then appealed to the South Carolina Supreme Court,
which affirmed the death sentence,4 and to the United States Supreme
_________________________________________________________________
2 Id. at 1355.
3 State v. Plath, 284 S.E.2d 221 (S.C. 1981).
4 State v. Plath, 313 S.E.2d 619 (S.C. 1984).

                    3
Court, which denied Certiorari.5 Plath subsequently applied for Post-
Conviction Relief ("PCR") in the South Carolina Court of General
Sessions in November 1984, and amended that application twice in
1985. After an evidentiary hearing, the Court of General Sessions dis-
missed Plath's PCR application on May 12, 1986.

Following that dismissal, Plath again applied for, and was granted,
Certiorari to the United States Supreme Court, and that court remanded6
the case to the Court of General Sessions for reconsideration in light
of Yates v. Aiken.7 The issue meriting reconsideration was whether the
implied malice instruction given at Plath's original trial violated his
right to due process of law under the 14th Amendment of the U.S.
Constitution and, if so, whether that violation constituted reversible
error. The Court of General Sessions found that the implied malice
instruction did not violate Yates v. Aiken, and that, even if it did, that
violation was harmless beyond a reasonable doubt.

Thereafter, Plath submitted a third amended PCR application,
which was denied on March 5, 1990. Plath appealed this denial to the
South Carolina Supreme Court, which affirmed,8 holding that,
although the implied malice instruction violated Yates v. Aiken, it was
harmless beyond a reasonable doubt under the analysis set forth in
Yates v. Evatt.9 On February 22, 1993, the U.S. Supreme Court denied
Certiorari.10

Plath then sought habeas relief in the United States District Court
for the District of South Carolina. On October 8, 1993, the State made
a motion for summary judgement, and on October 17, 1994, a U.S.
Magistrate issued a report recommending denial of habeas corpus
relief. The district court granted the State's motion for summary
judgement and denied habeas relief on September 3, 1996, and denied
_________________________________________________________________
5 Plath v. South Carolina, 467 U.S. 1265 (1984).
6 Plath v. South Carolina, 484 U.S. 1022 (1988).

7 484 U.S. 211 (1988).
8 Arnold v. State, 420 S.E.2d 834 (1992).
9 500 U.S. 391 (1991).

10 Plath v. State, 507 U.S. 927 (1993).

                    4
petitioner's motion to alter or amend his order on January 30, 1997.
This appeal followed.

II.

Plath alleges six grounds for habeas relief, several of which are the
same as those alleged unsucessfully in Arnold . We address each in
turn.

A.

As in the case of his co-defendant, Plath first seeks habeas relief
on the ground that the trial judge's jury instruction regarding the
implication of malice from the use of a deadly weapon was clearly
unconstitutional and amounted to reversible error. We considered this
same instruction in Arnold, where we found it unconstitutional under
Yates v. Evatt,11 but also found that it was nevertheless harmless error.12
We see no reason to reach a different conclusion in this case.

In Arnold, we restated the rule that, to obtain habeas relief as a
result of an unconstitutional implied malice instruction, a petitioner
must show that the instruction "`had substantial and injurious effect
or influence in determining the jury's verdict.'"13 According to Yates
v. Evatt, making this determination involves a two-step process: first,
we must "ask what evidence the jury actually considered in reaching
its verdict."14 Then, once we have established the extent of the total
evidence considered, we must "weigh the probative force of that evi-
dence as against the probative force of the [implied malice] presump-
tion standing alone."15

We applied this test in Arnold, where we found that, based on the
entire body of evidence considered by the jury,"this case reeks of
_________________________________________________________________
11 Arnold, 113 F.3d at 1356.
12 Id. at 1357.
13 Id. at 1356 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637
(1993)).
14 Yates v. Evatt, 500 U.S. 391, 404 (1990).
15 Id.

                    5
express malice and any reasonable jury, notwithstanding the implied
malice instruction, would have found malice beyond a reasonable
doubt."16 Therefore, we found the implied malice instruction in
Arnold, the same instruction that is at issue in this case, to be harm-
less error.

Plath, however, seeks to distinguish this case from Arnold's by
asserting that no such clear and independent evidence of malice
applied to him. Indeed, Plath argues that all evidence of malice on his
part is "confusing and contradictory." We disagree.

As much, if not more, evidence of specific acts of malice in the
record pertains to Plath as pertains to Arnold. And as the U.S. Magis-
trate's report points out, there was testimony at trial of a long list of
acts that, when considered by a jury, would have been easily suffi-
cient to support a finding of malice on Plath's part. These acts
include: forcing the victim to undress, forcing the victim to perform
oral sex upon him, forcing the victim to perform oral sex upon
another person, beating the victim with a leather belt while she per-
formed oral sex upon another person, dragging the victim by the neck
with a leather belt, urinating in the victim's mouth, helping to strangle
the victim with a rubber hose, stabbing the victim, and ordering
another person to "finish off" the victim. 17

Plath also contends that both the lack of credibility of Sheets, a key
witness, and the existence of evidence supporting Plath's claim of
innocence militate against the notion of a strong body of independent
malice evidence. However, both of these elements were present in
Arnold, and indeed, Sheets's testimony was as central in that case as
it is here. Thus, in this regard, there seems to be little substantive dif-
ference between Plath's case and that of Arnold.

Finally, Plath alleges as error the State's use of the implied malice
presumption in its closing argument, stating that"[t]he solicitor . . .
relied on the presumption of malice arising from the use of a deadly
weapon."18 But here again, the same argument was cited in Arnold,
_________________________________________________________________
16 Arnold, 113 F.3d at 1357.
17 J.A. at 232.
18 Petitioner's Br. at 11.

                     6
and in that decision we concluded that it "fails, however, to tip the
scales sufficiently in his [Arnold's] favor."19

Thus we hold that, as in Arnold, there is sufficent evidence in the
record from which a jury could have found beyond a reasonable doubt
that Plath acted with malice even in the absence of the unconstitu-
tional instruction. We therefore find that the implied malice instruc-
tion was harmless error, and decline to grant habeas relief on this
ground.

B.

Plath again borrows an argument from Arnold by alleging that
improper arguments by the State at both the guilt and sentencing
phases of his trial deprived him of due process of law. Plath concedes
that the allegedly improper arguments from the guilt phase of his trial
were not raised on direct appeal, but contends that they are appropri-
ate for habeas consideration under Kornahrens v. Evatt.20 In that case,
which we used to dispose of practically the same argument in Arnold,
this court reaffirmed a basic principle of habeas corpus jurisprudence,
declaring that, "if a state prisoner defaulted on his federal claims in
state court pursuant to an independent and adequate state procedural
rule, he is precluded from asserting such claims in his federal habeas
petition unless he shows cause for and resulting prejudice from
default."21 In addition, such claims must be raised on direct appeal,
and cannot be made for the first time during state PCR.22

But here, Plath contends that the South Carolina Supreme Court's
practice of in favorem vitae review means that the question of
improper argument during the guilt phase of the trial was in fact
examined at the state level. In Arnold we clearly refuted this notion,
but Plath nevertheless attempts to distinguish his claim from that case
on two grounds: first, that the May 12, 1986 order of the Court of
Common Pleas dismissing Plath's PCR application states that the
_________________________________________________________________
19 Arnold, 113 F.3d at 1357.
20 66 F.3d 1350 (4th Cir. 1995).
21 Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995).
22 Id. at 1362.

                     7
South Carolina Supreme Court had reviewed the case in favorem
vitae, and second, that in the South Carolina Supreme Court there
was, at the time of Plath's appeal, "a practice of reviewing closing
arguments in capital cases regardless of whether an issued [sic] had
been raised at trial or on appeal."23

However, both of these grounds seem to miss the thrust of
Kornahrens as well as our use of its rule in Arnold. Although in
Kornahrens we mentioned that the South Carolina Supreme Court
had abolished in favorem vitae review, our reason for declining to rec-
ognize such implied review for habeas purposes was not that it did not
exist, but that it did not give federal courts a sufficient record to "de-
termine whether the state court has properly applied federal constitu-
tional principles."24 Quite simply, with only the implication of state
court review in favorem vitae, "we have no state court judgement to
review."25

Thus, there seems to be no reason to distinguish Plath's default
from Arnold. Further, with regard to the alleged improper arguments
made by the State during Plath's resentencing, an issue that was
raised in state court, these same arguments were considered in Arnold,
where we found that they did not meet Darden v. Wainwright's
requirement that they "`so infected the trial with unfairness as to make
the resulting conviction a denial of due process.'"26 There appears to
be nothing in Plath's argument that would demand a different result.

C.

Plath next contends that the Court of General Sessions for Beaufort
County lacked jurisdiction over his prosecution, as the site of the
crimes in question was neither within the boundaries of Beaufort
County nor the State of South Carolina, but was instead part of "The
_________________________________________________________________
23 Petitioner's Br. at 17 (citing State v. Gilbert, 258 S.E.2d 890, 894
(S.C. 1979)).
24 Kornahrens, 66 F.3d at 1362.
25 Id.; see also Matthews v. Evatt, 105 F.3d 907, 913 (4th Cir. 1997).
26 Arnold, 113 F.3d at 1358 (quoting Darden v. Wainwright, 477 U.S.
168, 181 (1986)).

                     8
Territorial Sea." This claim was made in Arnold, where we found it
"meritless."27 Unless there has been a change in the geographical posi-
tion of St. Helena's Island since May 14, 1997, Plath's reiteration of
this claim would appear to be equally so.

Further, Plath cites Townsend v. Sain28 in support of the proposition
that he should have at least been allowed an evidentiary hearing on
the matter by the district court. However, as the State correctly points
out, Townsend demands an evidentiary hearing as a part of a habeas
proceeding only where "no express findings of fact" have been made.29
Here, part of the burden that the State sought to meet was proof of
the place of death for jurisdictional purposes, 30 and in the indictment
for murder against Plath, the State alleged that Plath killed Gardner
"in Beaufort County on or about the 12th day of April 1978."31

The fact that the jury convicted Plath based on this indictment is
thus as clear and "express" a finding of fact as could be expected. As
a result, we hold that the relief contemplated by Townsend is unavail-
able in this case.

D.

Plath also contends that several acts and omissions of his trial
counsel amount to ineffective assistance of counsel, entitling him to
habeas relief. First, Plath cites his attorneys' failure to object, at the
guilt phase of the trial, to the introduction of and reference to an
immunity agreement between the State and Cindy Sheets, the State's
primary witness, that alluded to Sheets's submission to a polygraph
test. Under Strickland v. Washington,32 Plath must show that this and
any other act by his attorneys was both professionally deficient and
the cause of prejudice to him. This, as we have stated, is a difficult
_________________________________________________________________
27 Id.
28 372 U.S. 293 (1963).
29 Townsend v. Sain, 372 U.S. 293, 314 (1963).
30 Respondent's Br. at 30 (citing State v. Bostick, 131 S.E.2d 841 (S.C.
1963)).
31 J.A. at 583.
32 466 U.S. 668 (1984).

                    9
standard to meet, as "`[j]udicial scrutiny of counsel's performance
must be highly deferential,'"33 and prejudice to a defendant must be
clear.

In Arnold, we found Arnold's attorneys' failure to object to the
same evidence was part of a "trial strategy." 34 In addition, we also
found that prejudice was unlikely as, despite the evidence of a poly-
graph test bolstering Sheets's credibility, "no evidence of the results
of any polygraph test were presented to the jury and the jury had
ample opportunity to assess Sheets' credibility during her lengthy
appearance on the witness stand."35 Here, although the district court
found that the failure to object to this evidence"was not a strategic
decision," it nevertheless found in this case the same lack of prejudice
that was noted in Arnold, as Sheets testified at length, and "the jury
had ample opportunity to observe her for a substantial period of time
to reach their own conclusions regarding her credibility."36 We
believe that this conclusion was correct.

Second, Plath contends that his attorneys provided ineffective
assistance by failing to lay the proper foundation for x-rays of Plath's
leg, broken prior to the murder, which would have helped rebut Cindy
Sheets's testimony that Plath "stomped" the victim. However, because
authentication of the x-rays would have required bringing in a witness
from York, Pennsylvania, and would have exhausted Plath's funds in
a vain effort to do so,37 Plath's attorneys decided instead to use the
testimony of a local orthopedic surgeon to establish that Plath's leg
was broken at the time of the murder. Plath contends that had the
existence of the broken leg been more firmly established, the jury
may have found his role in the murder "minimal."

Nevertheless, Plath's argument fails the first prong of the
Strickland test: that the acts of counsel be objectively unreasonable.
_________________________________________________________________
33 Kornahrens, 66 F.3d at 1359 (quoting Strickland v. Washington, 466
U.S. 668, 687-88 (1984)).
34 Arnold, 113 F.3d at 1363.
35 Id.
36 J.A. at 667-68.
37 Id. at 1269.

                    10
Mere competency and reasonableness are all that is required of coun-
sel under this analysis,38 and such is clearly present in the strategic
decision to use the orthopedic surgeon's testimony in lieu of what
appears from the record to have been an impractical alternative.
Moreover, Plath, through medical witnesses, was able to establish that
his leg had been broken six weeks before the crime. The failure to
admit additional x-ray evidence to establish the same fact hardly prej-
udiced Plath. For these reasons, we hold that the actions of Plath's
counsel in this regard were adequate.

Third, Plath claims that his attorneys' failure to present additional
mitigating evidence deprived him of his right to effective assistance
of counsel. Specifically, Plath claims that, had a more extensive
investigation into his background and mental state been made, such
mitigating evidence would have influenced a jury to impose a sen-
tence of life imprisonment rather than the death penalty. And indeed,
Plath's brief paints a striking picture of Plath's tragic background and
extremely unstable mental state.

However, as the State's brief points out, several factors militate
against Plath's success on this ground. First, Plath did not raise this
issue until his final motion to amend his application for PCR,39 which
means that, absent a showing of cause and prejudice or a fundamental
miscarriage of justice, it cannot be considered in this habeas proceed-
ing. Additionally, it appears from the record that, although Plath's
counsel did not make an exhaustive examination of his background
and mental state, they nevertheless made a reasonable one.40 At least
ten witnesses testified as to Plath's background, and, as the State's
brief makes clear, sufficient consideration of Plath's mental state was
made.

Further, when considered against the sheer magnitude of the aggra-
vating evidence against Plath, it is difficult to see the allegedly unrea-
sonable omission of this mitigating evidence as prejudicial. As in
Strickland, "[g]iven the overwhelming aggravating factors, there is no
_________________________________________________________________
38 See Kornahrens, 66 F.3d at 1361.

39 J.A. at 2373.
40 See Matthews, 105 F.3d 907, 919-20 (4th Cir. 1997).

                     11
reasonable probability that the omitted evidence would have changed
the conclusion that the aggravating circumstances outweighed the
mitigating circumstances and, hence, the sentence imposed."41 Thus,
in weighing the omitted evidence against that actually used to convict
and sentence Plath, the mitigating evidence seems insufficient to shift
the balance in Plath's favor.

And finally, Plath claims that the failure of his counsel to call Eliz-
abeth Binder as a witness at his sentencing retrial denied him effec-
tive assistance of counsel. But again, Plath did not raise this claim
during his appeals at the state level, and thus the State is correct in
asserting, as did the district court, that it is procedurally barred. In
addition, because there were some questions as to Binder's credibil-
ity, the decision not to call her as a witness had clear strategic value,
and thus can withstand the Strickland test.

E.

Plath next contends that a lack of mental competence on his part
during the resentencing trial violated his rights under the Due Process
Clause of the Fourteenth Amendment. Again, Plath did not raise this
issue until his final motion to amend his PCR application, where it
was dismissed as untimely, thus the presumption is that it is procedur-
ally barred. Nevertheless, Plath attempts to rebut this presumption by
citing a line of South Carolina Supreme Court cases that have allowed
the issue of competence to be raised during collateral (PCR) proceed-
ings.

However, Plath seems to miss the crucial distinction between a
state court allowing the unraised issue to be included in a PCR appli-
cation, and a federal court considering it as part of a habeas proceed-
ing. As we wrote in Kornahrens, "the crux of federal habeas corpus
review is to provide criminal defendants with a mechanism to review
state court interpretations of federal constitutional protections, while
providing deference to the role of state court proceedings."42 There-
fore, cases, like those cited by Plath, where a state court has allowed
_________________________________________________________________
41 Strickland, 466 U.S. at 700.
 6350 35 6 42 Kornahrens, 66 F.3d at 1362.

                     12
an unraised issue to become a part of state PCR review, do not mean
that the principles of comity that limit habeas review can be ignored.

In addition, Plath argues that these departures mean that the proce-
dural default rule in question is inconsistently applied and is thus not
an adequate and independent state ground for the default. We dis-
agree. In Meadows v. Legursky, this court considered similar allega-
tions of inconsistent application of a state procedural rule and found
that, despite some deviations, a "general rule," that had been applied
"`in the vast majority of cases,'" was entitled to respect as an adequate
and independent state ground.43 In this case, it is unclear whether the
departures from the state default rule that Plath cites similarly consti-
tute merely deviations from the "general rule" applied in the "vast
majority of cases." However, the district court, after a thorough analy-
sis, concluded that even if Plath did preserve the argument, he had
failed to meet the requirements of Lawson v. Dixon, 3 F.3d 743
(1993), and so was not entitled to an evidentiary hearing on mental
competency, and we agree.

F.

Finally, Plath claims that the absence of his counsel from a jury
view of the site of the crimes in question deprived him of effective
assistance of counsel. This same issue was raised in Arnold, where,
although we conceded that a view should be conducted in the pres-
ence of counsel, we stated that "[a]ll of the elements of a perfect trial
. . . are not required in order to have a fair trial."44 Thus, we found that
error harmless. As Plath alleges the same exclusion of counsel in this
case, we believe that the result should be the same here, and decline
to grant relief on this ground.

CONCLUSION

For the foregoing reasons, we affirm the judgement of the district
court denying the writ of habeas corpus.

AFFIRMED
_________________________________________________________________

43 904 F.2d 903, 907 (4th Cir. 1990) (en banc) (citing Dugger v. Adams,
489 U.S. 401 (1989)).

44 Arnold, 113 F.3d at 1361.

                     13
