                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 12-6172


LUTHER JAMES FORD,

                 Petitioner – Appellant,

           v.

WARDEN ROBERT M. STEVENSON, III, Broad River Correctional
Institution,

                 Respondent – Appellee,

           and

SOUTH CAROLINA, STATE OF,

                 Respondent.



Appeal from the United States District Court for the District of
South Carolina, at Aiken.     David C. Norton, District Judge.
(1:11-cv-00775-DCN)


Argued:   January 29, 2013                    Decided:    April 3, 2013


Before TRAXLER,    Chief   Judge,   and   GREGORY   and   SHEDD,   Circuit
Judges.


Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Chief Judge Traxler and Judge Gregory joined.


ARGUED: Katie A. Croghan, UGA APPELLATE LITIGATION CLINIC,
Athens, Georgia, for Appellant. James Anthony Mabry, OFFICE OF
THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South
Carolina, for Appellee.    ON BRIEF: Peter B. Rutledge, Rory A.
Weeks, UGA APPELLATE LITIGATION CLINIC, Athens, Georgia, for
Appellant.   Alan Wilson, Attorney General, John W. McIntosh,
Deputy Attorney General, Donald J. Zelenka, Senior Assistant
Deputy Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH
CAROLINA, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
SHEDD, Circuit Judge:

      Luther James Ford appeals the dismissal of his 28 U.S.C.

§ 2254         petition,        contending          that       his      attorney        was

constitutionally ineffective in advising him to plead guilty to

voluntary manslaughter.                We agree with the district court that

Ford’s claim is without merit and, accordingly, affirm.

                                             I.

      On November 26, 2006, Luther James Ford spent the day with

his   girlfriend,           Patricia    Thompson,        eventually     returning      that

evening to Thompson’s home in Bennettsville, South Carolina. 1

Both had been consuming alcohol that day and, at some point,

began arguing.          Ford retrieved a knife and stabbed Thompson 39

times, killing her.             Ford then rode a bicycle to a nearby house

where     he   told     two    individuals        that    he   “killed”      Thompson    or

“thought       he     had    killed     her.”       (J.A.      47).         Thompson    was

discovered by police sprawled on her bed with her arms in a

defensive posture.

      Ford      was     arrested       the   following         day    and    subsequently

indicted for murder.              The State then served Ford with notice

that it was seeking a sentence of life without parole (LWOP)

because he had a 1979 conviction for voluntary manslaughter.

      1
       Ford and Thompson had previously lived together, but
Thompson had moved out several months earlier because Ford had
cut her face.



                                             3
Under South Carolina’s “Two Strikes/Three Strikes” statute, a

conviction     for   voluntary      manslaughter          is    considered       a   “most

serious offense.”         Two convictions for a “most serious offense”

require   a    sentence     of    LWOP.       S.C.    Code      Ann.    §    17-25-45(A).

Prior to trial, the State offered to let Ford plead guilty to

voluntary manslaughter and receive a mandatory LWOP.

     Ultimately,      Ford       pled   guilty       to   voluntary         manslaughter.

During the plea colloquy, Ford admitted that he killed Thompson

and did not dispute the State’s summary of the killing.                                The

trial judge noted that a competency exam found Ford competent to

stand trial and explained the mandatory LWOP sentence he was

facing    if   he    pled    guilty.       During         the    plea       hearing,   the

following exchange took place:

     THE COURT: Are you entering this plea of your own free
     will and accord?

     MR. FORD: In a way.

     THE COURT: All right. If you don’t mind explain that
     to me. Is anybody forcing you to do this?

     MR. FORD: No, sir.

     THE COURT: Okay, anybody intimidating you or anybody
     promised you anything?

     MR. FORD: No, sir.

     THE COURT: If it’s any problem, now, tell me about it
     now.

     MR. FORD: No, no problem.

(J.A. 45).


                                          4
      Thereafter,     the    trial    judge            found     that   Ford’s    plea   was

voluntary and accepted it.             Ford, through his counsel, Daniel

Blake, apologized to Thompson’s family.                        Blake also informed the

trial judge that he had investigated the case thoroughly and

explained how they reached the decision to plead guilty:

      Luther and I had had numerous discussions during [the
      18 months Ford had been imprisoned prior to the plea].
      Always the question was whether or not to go to trial
      understanding that the end result of loosing [sic] a
      trial would be the same as it would be today. . . .
      And   I  believe,   really,   because   of the   prior
      convictions, it’s a mandatory sentence.

(J.A. 48-49).      The trial judge then imposed the LWOP sentence.

      Thereafter,     Ford    filed       a       pro     se    application      for    post-

conviction relief (PCR) in the Marlboro County Circuit Court.

Relevant here, Ford claimed that his counsel was ineffective

because he failed to inform Ford that, had Ford gone to trial,

he could have requested and possibly received an instruction for

the   lesser      included    offenses            of    voluntary       and     involuntary

manslaughter (the involuntary manslaughter claim).                             A conviction

for   involuntary      manslaughter               would        not   have     carried    the

mandatory      LWOP   sentence       under          South       Carolina’s       recidivist

statute.

      The   PCR    Court     held    an       evidentiary            hearing     on    Ford’s

application.      During the hearing, Ford testified that his guilty

plea was not knowing and voluntary because he “didn’t understand

that” he was in court to plead guilty and thought he was in

                                              5
court that day for his trial.        (J.A. 68).      Ford testified that

he “understood” some of the plea process, that “he say I could

have went to trial and got a lesser sentence.”          (J.A. 66).       Ford

testified that, on the day he pled guilty, Blake “took me back

in the room and he shut the door,” and told Ford to “sign” a

“paper.”    (J.A. 65).    Ford testified that he did not know he was

signing a guilty plea.          On cross-examination, Ford testified

that he “kept telling [Blake] I wanted a trial.          He kept telling

me that he didn’t think I could stand a trial.”               (J.A. 69).

Ford reiterated that he did not know he was in court to plead

guilty and that, when he figured that out, “I tried to say

something and my voice went away.”       (J.A. 70).

       Contrary   to   Ford’s   testimony,   Blake    testified   that    he

talked “extensively” with Ford from November 2006 through April

2008 when Ford pled guilty.        (J.A. 72).   Blake stated that Ford

decided to plead guilty because “he was literally embarrassed.

He didn’t want to go to trial due to his embarrassment.”             (J.A.

72).    Blake recounted that at one point Ford said he just wanted

the death penalty, and that he vacillated between whether to

plead and just be done with the process or to fight at trial.

Blake said that Ford knew that a conviction would carry at least

LWOP and that the State’s case was strong because Ford had told

one witness that he had killed Thompson and told another witness

that he thought he had killed her.       Blake also testified that he

                                     6
spoke with family members about the decision to plead guilty and

that Ford knew that he was in court to plead guilty and that the

decision had been made “in the weeks and months before.”                            (J.A.

74).      Blake further testified that Ford had been found competent

to stand trial and fully understood how strong the State’s case

against him was.           In Blake’s view, “I don’t see how we could

have won the case.”          (J.A. 77).           Although Ford’s PCR application

accused Blake of ineffective assistance for failing to inform

him       of   the      possibility      of        an     involuntary     manslaughter

instruction at trial, neither Ford nor Blake was questioned or

provided testimony on this point.

       The PCR Court denied Ford’s application.                         The PCR Court

found      Ford’s    testimony      “not          credible,”    and     found    Blake’s

testimony “credible.”            (J.A. 85).          The PCR Court likewise found

Blake “conducted a proper investigation,” “adequately conferred”

with Ford, and was “thoroughly competent.”                      (J.A. 85).       The PCR

Court found that Ford’s plea was knowing and voluntary and that

Ford knew he would receive an LWOP sentence if he pled guilty.

The PCR Court found that Blake informed Ford of the consequences

of    a    plea   and    “specifically        finds       credible     plea     counsel’s

testimony that they had discussed this very issue.”                       (J.A. 86).

       The     PCR      order     does     not          specifically     discuss      the

availability of the involuntary manslaughter instruction if Ford

had gone to trial.              However, the order does provide that “any

                                              7
and all allegations that were raised in the application or at

the hearing . . . and not specifically addressed in this Order,”

were “waived” and Ford “failed to meet his burden of proof” on

those     allegations    because     Ford     failed   to     present      evidence

supporting them. 2       (J.A. 87).          Ford appealed the PCR Court’s

denial of his application to the South Carolina Supreme Court,

raising the involuntary manslaughter claim.                  The South Carolina

Supreme Court denied certiorari on all of Ford’s claims.

      Ford next filed a pro se petition for habeas corpus under

28 U.S.C. § 2254 in the District of South Carolina.                         Ford’s

petition        raised   four     claims,      including      the     involuntary

manslaughter claim.       After the State moved for summary judgment,

the petition was referred to a magistrate judge, who issued a

Report    and    Recommendation,    recommending       the    grant   of   summary

judgment to the State.          The magistrate judge concluded that Ford

was     not   procedurally      barred   from    bringing      the    involuntary


      2
        Contrary to Ford’s argument, this resolution clearly
counts as an “adjudication on the merits in State court” of
Ford’s claim under 28 U.S.C. § 2254(d).        See Johnson v.
Williams, -- S.Ct. --, 2013 WL 610199, *7 (2013) (noting
presumption that “the federal claim was adjudicated on the
merits” when the claim is “reject[ed]” without being expressly
addressed); Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011)
(“When a federal claim has been presented to a state court and
the state court has denied relief, it may be presumed that the
state court adjudicated the claim on the merits in the absence
of any indication or state-law procedural principles to the
contrary.”).



                                         8
manslaughter        claim,   but     that       the    claim     failed       on    the    merits

because      Ford   would    not     have       been      entitled     to     an    involuntary

manslaughter        charge     under     South        Carolina        law.     The        district

court, conducting a de novo review, adopted the Report.                                         This

court     granted     Ford     a     certificate           of    appealability            on    the

involuntary manslaughter claim, and we now affirm.

                                            II.

      “We review de novo the district court’s decision to deny

[Ford’s] § 2254 petition based on the record before the [state

court], applying the same standards as did the district court.”

Golphin      v.     Branker,       519    F.3d        168,      178    (4th        Cir.    2008).

“Pursuant to the Antiterrorism and Effective Death Penalty Act

of   1996     (‘AEDPA’),       the       scope       of    our     review      in     cases      on

collateral review from a state court proceeding that adjudicated

a    claim     on    the     merits        is       both     deferential           and     highly

constrained.”        Id.     That is, under § 2254, federal habeas relief

may not be granted unless a petitioner shows that the earlier

state   court’s      decision       “was    contrary         to”      clearly       established

federal law, § 2254(d)(1); or that it “involved an unreasonable

application of” such law, § 2254(d)(1); or that it “was based on

an   unreasonable      determination            of     the   facts”      in    light       of   the

record before the state court, § 2254(d)(2).                            In cases alleging

ineffective assistance of counsel, the Supreme Court recently

reminded lower courts that, even without § 2254’s deference, the

                                                9
Strickland v. Washington, 466 U.S. 668 (1984), standard “is a

most deferential one.”             Harrington v. Richter, 131 S.Ct. 770,

788 (2011).         Moreover, “[w]hen combined with the extra layer of

deference that § 2254 provides, the result is double deference

and    the    question     becomes     whether     ‘there      is    any   reasonable

argument       that     counsel      satisfied         Strickland’s        deferential

standard.’”         Johnson v. Sec’y, DOC, 643 F.3d 907, 910-11 (11th

Cir.        2011)     (quoting     Harrington,          131      S.Ct.     at     788).

Indisputably,         “[d]ouble    deference      is    doubly      difficult    for   a

petitioner to overcome, and it will be a rare case in which an

ineffective assistance of counsel claim that was denied on the

merits in state court is found to merit relief in a federal

habeas proceeding.”         Id. at 911.

       On    appeal,    Ford     argues    that   Blake       was   ineffective    for

failing to advise him that, had Ford gone to trial, he was

“likely       entitled”     to    an      involuntary      manslaughter         charge.

(Appellant’s Br. at 26).            “To prevail on a claim of ineffective

assistance of counsel, a petitioner ordinarily must satisfy both

parts of the two-part [Strickland] test,” Richardson v. Branker,

668 F.3d 128, 139 (4th Cir. 2012), by showing that “counsel’s

representation          fell      below      an        objective       standard        of

reasonableness,” Strickland, 466 U.S. at 688, and that “there is

a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different,”

                                           10
Strickland, 466 U.S. at 694.                 If Ford fails to make this showing

on either prong, our inquiry ends.                       Strickland, 466 U.S. at 697

(noting “there is no reason for a court deciding an ineffective

assistance claim . . . to address both components of the inquiry

if the defendant makes an insufficient showing on one”).

       In     South    Carolina,          “[i]nvoluntary       manslaughter           is     the

killing      of    another        without    malice      and   unintentionally             while

engaged in either: (1) an unlawful act not amounting to a felony

and not naturally tending to cause death or great bodily harm;

or (2) a lawful act with reckless disregard for the safety of

others.”       State v. Reese, 633 S.E.2d 898, 900 (S.C. 2006).                               It

is    “a    lesser    included           offense   of     murder    only       if    there    is

evidence the killing was unintentional.”                       Tisdale v. State, 662

S.E.2d      410,     412    (S.C.        2008).      “If    there     is       any    evidence

warranting a charge on involuntary manslaughter, then the charge

must be given.”        Reese, 633 S.E.2d at 900.

       Ford       contends        that     there    is     evidence       in    the     record

supporting his claim that Thompson’s death was unintentional and

was   the     result       of     engaging    in    a    lawful     act    with       reckless

disregard for the safety of others.                         He relies primarily on

three cases—State v. Light, 664 S.E.2d 465 (S.C. 2008), State v.

Crosby, 584 S.E.2d 110 (S.C. 2003), and State v. Burriss, 513

S.E.2d 104 (S.C. 1999).                   In each case, the defendant shot and

killed      someone        with    a     handgun.         Moreover,       each       defendant

                                              11
testified that he did not mean to shoot the gun—either because

it went off during a struggle (Light), while the defendant was

getting up off the ground (Burriss), or accidentally while the

defendant’s eyes were closed (Crosby).                       Analogizing to these

cases, Ford argues that there is no evidence he intentionally

wielded the knife, and that in his habeas petition he alleges

that       Thompson   drew   the     knife    on   him.      Ford     also   points   to

evidence that he told one witness that he was not sure if he had

killed Thompson and that he and Thompson had been drinking on

the day of the murder.

       Even assuming this “evidence” was properly before the PCR

court, 3 Ford was not prejudiced by Blake’s alleged failure to

inform Ford that he could pursue an involuntary manslaughter

charge at trial because he was not entitled to an involuntary

manslaughter charge.           First, none of this evidence suggests that

Thompson’s death was accidental or unintentional.                        Instead, the

record evidence indicates that Ford was drinking on the day of

the    murder     and   that    he    spoke       to   two   people    after   killing

Thompson.       In addition, when Thompson’s body was discovered, her

hands were raised in a defensive posture.                      In South Carolina,

“voluntary intoxication . . . is never an excuse for or defense

       3
       Ford’s suggestion that Thompson held the knife first does
not appear in his state court filings and was not introduced
during the PCR hearing.



                                             12
to crime,”        State v. Vaughn, 232 S.E.2d 328, 330 (S.C. 1977),

and,    in   cases    of    murder,    “[v]oluntary   intoxication      does    not

impair a person’s ability to act with malice aforethought so as

to reduce murder to voluntary manslaughter.”                    State v. Davis,

298 S.E.2d 778 (S.C. 1983).               Thus, Ford’s voluntary drinking is

not    evidence    supporting      a   voluntary   manslaughter     charge,     yet

alone a charge of involuntary manslaughter.                  Regarding Ford’s

confessions, he told one witness that he had killed Thompson and

another that he “thought” he had killed her.                Neither statement

suggests that Thompson’s death was accidental.                   In addition to

this record evidence, in his habeas petition Ford suggests that

Thompson had the knife first.                This “evidence” again does not

suggest that Ford accidentally stabbed Thompson.

       Moreover, missing from Ford’s “evidence” is any assertion

that, at the time Ford entered his guilty plea, he had told

Blake    that   the     stabbing    was    unintentional   or    accidental,     or

provided Blake with any information that would have suggested

Thompson’s      death      was   involuntary    manslaughter.      At   the     PCR

hearing, Blake testified only that Ford told Blake, after Ford’s

memory returned, that he remembered stabbing Thompson.                         This

admission, coupled with Ford’s confession to two witnesses and




                                           13
the physical evidence do not suggest the crime of involuntary

manslaughter. 4

     Second, Ford’s argument is legally unsound.                             In each case

Ford relies upon, a single gunshot was fired during a struggle

or altercation, raising at least a plausible inference that the

firearm was not intentionally wielded.                        In contrast, the South

Carolina Supreme Court has held that involuntary manslaughter

charges        are    not      available            in    cases      where     defendants

intentionally        wielded      a    weapon       but   claimed    to   be   aiming   at

something else.        See State v. Cooney, 463 S.E.2d 597, 600 (S.C.

1995) (no involuntary manslaughter charge “when the defendant

admitted intentionally firing the gun, but claimed he only meant

to shoot over the victim’s head”); Harris v. State, 581 S.E.2d

154, 156 (S.C. 2003) (no error in failing to charge involuntary

manslaughter where defendant claimed he was only firing warning

shots);    Douglas     v.    State,      504        S.E.2d.   307,    310    (S.C.   1998)

(same); State v. Smith, 446 S.E.2d 411, 412-13 (S.C. 1994) (no

error     in    failing      to       charge    involuntary          manslaughter    when

defendant was intentionally wielding a knife but did not mean to

harm the victim).           In addition, the “any evidence” standard Ford

cites does not require a charge on a lesser-included offense


     4
       In fact, there is no evidence that Ford has ever asserted
to anyone that Thompson’s death was unintentional or accidental.



                                               14
unless    the      “evidence    presented”       would    “allow         a     rational

inference the defendant was guilty only of the lesser offense.”

State v. Geiger, 635 S.E.2d 669, 673 (S.C. Ct. App. 2006).                            See

also State v. Gilmore, 719 S.E.2d 688, 693 (S.C. Ct. App. 2011)

(noting when the evidence supporting the lesser-included offense

is circumstantial, an instruction is warranted if the evidence

would    “permit    a    reasonable     inference    that     the    defendant        is

guilty only of the lesser crime”).                Thus, “it is not error to

refuse    to    submit   a   lesser    included     offense     unless        there    is

testimony tending to show that the defendant is only guilty of

the lesser offense.”           State v. Funchess, 229 S.E.2d 331, 332

(S.C. 1976) (emphasis in original); Suber v. State, 640 S.E.2d

884, 886-87 (S.C. 2007) (finding evidence was “insufficient” to

support claim that defendant was guilty only of lesser included

offense because evidence suggested only that defendant may have

been not guilty of the greater offense).

     In this case, even taking Ford’s “evidence” at face value,

he   stabbed      Thompson     39     times.      The    line       of       cases    for

“accidental” or “unintentional” discharge of a firearm do not

suggest    that     an    involuntary     manslaughter        charge         would    be

required in such circumstances.                Instead, it seems clear as a

matter of law that, when a defendant stabs a victim 39 times,

the wielding of the knife was intentional.                    Put another way,

stabbing someone 39 times, without more, precludes the “rational

                                         15
inference” that the knife was unintentionally wielded.                             Indeed,

we have been unable to find any case in which a victim was

stabbed    more    than    one    time   and       an    involuntary        manslaughter

charge was required.             See, e.g., Commonwealth v. Burgess, 879

N.E.2d 63, 78-79 (Mass. 2008) (no error in failing to instruct

on   involuntary     manslaughter        where      victim        had    two   deep     stab

wounds); State v. Mason, 272 S.W.3d 257, 260-62 (Mo. Ct. App.

2008) (four stab wounds); State v. Carey, 558 S.E.2d 650, 662

(W.Va. 2001) (“There is simply no credible argument that a death

which    results    from   the     brutal     delivery       of     three      fatal    stab

wounds . . . is accidental”);            Ohio v. Campbell, 630 N.E.2d 339,

349-50    (Ohio    1994)   (upholding       trial        court’s        refusal    to   give

involuntary manslaughter instruction when evidence showed four

separate stab wounds in vital areas).

      Because Ford would not have been entitled to an involuntary

manslaughter charge had he gone to trial, the PCR court did not

unreasonably       apply    Strickland        in        denying     Ford’s        petition.

Savino v. Murray, 82 F.3d 593, 599 (4th Cir. 1996) (“However, if

there exists no reasonable probability that a possible defense

would have succeeded at trial, the alleged error of failing to

disclose or pursue it cannot be prejudicial.”).




                                         16
                              III.

     For the foregoing reasons, the district court’s denial of

Ford’s § 2254 petition is affirmed.

                                                      AFFIRMED




                               17
