UNPUBLISHED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.

_________________________________________________________________

Affirmed by unpublished per curiam opinion. Judge Murnaghan
wrote a dissenting opinion.

_________________________________________________________________

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 Caro-
lina, 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 Caro-
lina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

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 mur-
der, 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 dis-
charged. 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 convic-
tion, 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 rec-
ommendation of the magistrate judge, the district judge denied Dray-
ton'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 sen-
tencing 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 miti-
gating 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 differ-
ent." 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 per-
formance 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 differ-
ent 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 alto-
gether. 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."
_________________________________________________________________

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 intro-
duced 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 relation-
ship 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 coun-
sel claim: he challenges his lawyer's failure to contest the forensic
evidence. This claim is procedurally barred, however, because Dray-
ton 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 consti-
tutes ineffective assistance. Several death row guards could have testi-
fied 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 require-
ments. His lawyer made a strategic calculation not to call these wit-
nesses, 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 intro-
duction of a damaging report by a doctor who felt Drayton would stay
in trouble in prison.2 Given these concerns, we cannot say that Run-
yon'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 intro-
duced 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 eso-
teric 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 disabili-
ties, and hypoglycemia. Again, Runyon testified that his strategy was
to present Drayton in a "positive" light (as did the lawyers at Dray-
ton'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 consti-
tuted ineffective assistance of counsel. Even assuming deficient per-
formance, 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 con-
stituted 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 preju-
dice 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 question-
ing him thereafter. Drayton confessed to shooting Smith shortly after
the bond hearing, and his confession was admitted at trial. For the rea-
sons outlined below, we do not believe Drayton's rights were vio-
lated.

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 Amend-
ment 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 defen-
dant 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
_________________________________________________________________

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 indi-
cated 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 fur-
ther 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 suffi-
cient to overcome the presumption that the trial judge's finding is
correct.7 Thus, the writ cannot be granted on the ground that Dray-
ton's Sixth Amendment rights were violated.
_________________________________________________________________
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 "impres-
sion" that Drayton was getting his own lawyer. We disagree with the dis-
sent 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 rea-
sonable 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 differ-
ent exclusionary rule for Jackson violations than for transgressions of
Edwards and Miranda."); see also 475 U.S. at 640 (Rehnquist, J., dis-
senting).

The precedent, unsettled as it is, does not compel a conclusion con-
trary to the one reached by South Carolina's courts. This point is particu-
larly 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 constitu-
tional 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 con-
fessed. 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 Amend-
ment 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 discour-
aged because, in some situations, they may mask the adversarial
nature of the interrogation. In Miranda the Court noted that the warn-
ings 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" for-
mulation 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 under-
stand 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 ques-
tioning, and suspended questioning entirely for a significant period
before beginning the interrogation that led to his incriminating state-
ment." 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 dis-
trict 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 post-
conviction 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
_________________________________________________________________
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 dis-
trict 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 evi-
dence 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 "se-
rious 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
_________________________________________________________________
9 In favorem vitae review requires a "painstaking[ ] inspect[ion of] cap-
ital 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 consid-
ered 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 capi-
tal 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 influ-
          ence 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 sen-
          tence 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 com-
mitting 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 coun-
sel has been afforded. Miranda, 384 U.S. at 474.

Obviously, the most effective procedure for the police and prosecu-
tors 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
_________________________________________________________________
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.

                    15
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 testi-
mony, two police officers who were present at the bond hearing fur-
ther 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 incrimi-
nating 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 def-
erence 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 pre-
sumption 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 state-
ments made by the defendant were not as a result of any police-
initiated interrogation," the court concluded, they were admissible at
trial. While the trial court's factual findings are entitled to a presump-
tion of correctness, see Sumner, 449 U.S. at 550, pure legal determi-
nations 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 chal-
lenge the trial court's apparent factual determinations. Rather, I dis-
pute 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" commu-
nication with law enforcement when he requested to speak with Offi-
cer Frazier are incorrect as a matter of law.

A.

Once an accused has exercised his right to remain silent, that asser-
tion 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,
_________________________________________________________________
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 enunci-
ate 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 Peti-
tioner'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 magis-
trate did not testify that she believed that Drayton might secure coun-
sel. 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.

                     18
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 per-
ception ("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., ensur-
ing that the accused's right to have the assistance of counsel for his
defense is carefully protected, I am inclined to conclude that Peti-
tioner 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 interro-
gation 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 self-
incrimination). 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.

                     19
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 character-
ization 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 find-
ing that suspect, from jail, initiated interview with police by request-
ing 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 Fra-
zier, 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 "initia-
tion" 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 Dray-
ton's Sixth Amendment right to counsel. Drayton's subsequent
request to speak to Frazier, which the officers could not have antici-
pated, 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 interro-
gation after Petitioner had requested counsel at his arraignment. Under
Jackson, any waiver of Petitioner's rights for that police-initiated interro-
gation is invalid. 475 U.S. at 636. Even if Drayton's statement was vol-
untary, it was obtained in contravention of the clear dictates of Jackson.

                    20
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 sup-
pressed. 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 consid-
ered at such subsequent trial, if indeed the questions arise.

                    21
