Charles Richey v. Leroy Cartledge

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-7438

CHARLES E. RICHEY,

Petitioner - Appellant,

LEROY CARTLEDGE, Warden,

Respondent - Appellee.

Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Mary G. Lewis, District Judge.
(5:13−cv−01329−MGL)

Argued: January 27, 2016 Decided: June 23, 2016

Before DUNCAN and DIAZ, Circuit Judges, and Loretta C. BIGGS,
United States District Judge for the Middle District of North
Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Milligan Grinstead Goldsmith, MCGUIREWOODS, LLP,
Raleigh, North Carolina, for Appellant. Melody Jane Brown,
OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia,
South Carolina, for Appellee. ON BRIEF: Matthew Allen
Fitzgerald, MCGUIREWOODS, LLP, Richmond, Virginia, for
Appellant. Alan Wilson, Attorney General, John W. McIntosh,
Chief 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Unpublished opinions are not binding precedent in this circuit.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
PER CURIAM:

Charles Earl Richey was convicted in Greenville County,

South Carolina, of, among other things, armed robbery of a

convenience store. After an unsuccessful direct appeal, Richey

sought post-conviction relief in South Carolina state court. As

relevant here, he argued that his trial counsel provided

ineffective assistance by failing to move to suppress an

incriminating statement Richey gave to the police after his

arrest (the “post-arrest statement”) on the ground that the

statement was taken in violation of his Fifth Amendment right to

remain silent.

Finding no relief in the state courts, Richey petitioned,

pro se, for a writ of habeas corpus in the U.S. District Court

for the District of South Carolina. There, he again pressed his

ineffective-assistance-of-counsel claim regarding the post-

arrest statement. He also argued, for the first time, that his

trial counsel was ineffective by failing to move to suppress—

this time on Sixth Amendment grounds—another incriminating

statement that Richey made to law enforcement after his bond

hearing (the “post-bond statement”).

The district court denied the petition, and we affirm.

Even assuming that trial counsel’s performance fell below an

objectively reasonable standard under Strickland v. Washington,

466 U.S. 668 (1984), Richey fails to show Strickland prejudice.

3
Thus, he cannot establish that (1) he is entitled to relief on

the post-arrest-statement claim under the deferential standard

of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), 28 U.S.C. § 2254(d), or (2) his post-bond-statement

claim is sufficiently “substantial” under Martinez v. Ryan, 132

S. Ct. 1309, 1318 (2012), to excuse his procedural default.

On the morning of November 2, 2002, a masked man committed

an armed robbery of the BP Pantry, a convenience store in

Greenville, South Carolina. Although the store clerk, Sherri

Greene, could not see the robber’s face, she described him as a

black man wearing blue jeans, white sneakers, “a burgundy shirt

with something white on it,” a black baseball cap, and a black

bandana used as a mask. The robber was armed with a black

revolver.

At some point during the robbery, the robber removed his

mask, and a Pantry customer, David Lee Durham, saw the robber’s

face twice. The first time, Durham was about to enter the

Pantry through the front doors when the robber exited through

them. Durham was “[a]bout six to eight feet” away from the

robber, J.A. 236, who covered the bottom half of his face with a

4
black sweater and a blue Bi-Lo grocery bag, leaving the top half

of his face exposed. Durham also noticed that there were

cigarettes in the Bi-Lo bag. The robber then walked around the

side of the building and behind the Pantry.

Durham walked to the telephone booth outside the Pantry to

call 911. At that point, the robber returned from behind the

store and, with his face completely exposed, stood “[a]bout

[ten] feet” in front of Durham, staring, for “at least a minute

to two minutes.” J.A. 237, 241. Durham observed that the

robber was a black man wearing blue jeans, a burgundy t-shirt, a

black ball cap, with a black sweater wrapped around his hand. 1

After the robber had fled the scene and Durham had called

911 from the telephone booth, Greene called 911 from inside the

Pantry. 2

1 At trial, Durham initially remembered the robber as
wearing a black t-shirt with a burgundy sweater, rather than a
burgundy shirt with a black sweater. See J.A. 235–36, 238–39.
But toward the end of his direct examination, the state
refreshed his memory by showing him his written statement to
police. J.A. 238–39. While the statement was not introduced
into evidence, the trial testimony indicates that Durham
described the robber to the police as wearing a burgundy shirt
with a black sweater wrapped around his hand. See J.A. 239,
247. And on cross-examination, Durham confirmed this
description. See J.A. 247.

2Greene twice alerted law enforcement prior to this 911
phone call. During the robbery, she pulled the silent alarm
from one of the offices in the back of the Pantry. Later, she
called 911, leaving the phone on the office desk.

5
In total, the robber stole six cartons of Newport

cigarettes, the Pantry’s cordless phone, money from the cash

at least two money tubes 3 from the safe, all together totaling

over $100. Greene recalled the robber putting the money taken

from the cash register into his pocket.

Officers responded to the emergency call and began

searching the area for the robber. Several blocks away from the

Pantry, Officer Emily Lybrand spotted a man (later identified as

appellant Charles Richey) matching the robber’s description and

running across a field, and she relayed that information via

radio. In the brush nearby, which was “swaying as if somebody

had just come through,” she found a “cotton twill gray men’s

jacket” that “looked like it had just recently been thrown

down.” J.A. 254–55. Not knowing whether the jacket was

relevant to the robbery, Lybrand picked up the jacket and put it

into property and evidence.

Officer Trace Skardon arrived near the field where Lybrand

spotted Richey. At the edge of the field, Skardon found a black

ball cap lying on the ground. Shortly after, he saw Richey and

tried to confront him, but Richey fled. Skardon radioed other

units and, joined by Detective Bobby Carias and Officer William

3 Money tubes are two- to four-inch-long clear or white
plastic tubes that are meant to hold twenty dollars’ worth of
bills.

6
Albert, pursued Richey by foot through a wooded area for a

couple hundred yards. Throughout the pursuit, Skardon called to

Richey, ordering him to stop, but Richey continued running.

During the chase, Carias observed that Richey was holding a

gun. On Carias’s orders, Richey tossed the gun aside, but he

continued running. Shortly after, Richey fell, and Carias and

Albert apprehended him.

Albert handcuffed and, with Skardon’s assistance, searched

Richey. The officers found in Richey’s right front pants pocket

three money tubes, totaling sixty dollars, and two unopened

packs of Newport cigarettes. After Richey’s arrest, law

enforcement returned to collect the black ball cap and revolver

from along Richey’s flight path.

Lybrand then drove Richey to the Pantry to conduct an in-

person identification (or “show-up”) with Greene and Durham.

During the show-up, Richey stood in the parking lot by the

police car, Durham stood outside about ten feet away, and Greene

remained inside the store. Greene and Durham could not see or

hear one another from where they were standing, and both

identified Richey as the robber. Although Greene later

testified that Richey was not wearing a burgundy shirt during

the show-up, 4 other witnesses confirmed that Richey was in fact

4
She testified that, instead, Richey was wearing a “tee
shirt.” J.A. 231.

7
wearing blue jeans and a burgundy shirt, but not a ball cap,

black jacket, or bandana-mask. Durham subsequently identified

the ball cap Officer Skardon found as that worn by the robber.

The bandana-mask, Bi-Lo bag, remaining cigarette cartons, and

cordless phone were never recovered.

Once Greene and Durham positively identified Richey,

Lybrand searched him, finding in Richey’s left front pants

pocket $52.75 in quarters, one-, two-, five-, and ten-dollar

bills. Lybrand then transported Richey to the law enforcement

center.

Captain Edward Blackburn met Officer Lybrand at the law

enforcement center and, together, they placed Richey in an

interrogation room. Not long after, Blackburn read Richey his

Miranda 5 rights and presented a Waiver of Rights form, which

Richey refused to initial or sign. After being advised of his

rights, Richey “stated that he did not have anything to say.”

J.A. 487.

Subsequently, Richey began speaking to Blackburn about the

events leading up to his arrest. Although Richey said he would

not sign anything, he confessed to the robbery. Specifically,

Richey stated that he “had been out smoking crack with a girl”

5 Miranda v. Arizona, 384 U.S. 436 (1966).

8
all night, that he and the girl needed money, and that “he

didn’t think [the robbery] would work” but he “went out there

and that’s what happened.” J.A. 180, 313. Blackburn then

reduced Richey’s oral confession to writing, which Richey also

refused to sign.

Later that day, a magistrate judge held a bond hearing

where Richey was advised of his right to counsel. The record

does not show whether Richey invoked his right to counsel at

that time; rather, Detective Carias’s supplemental police report

says only that the detective obtained warrants and that the

magistrate judge set Richey’s bond at $35,000. See J.A. 35.

Richey was held overnight in the Greenville Detention Center.

The next day, on November 3, 2002, Detective W.C. Bruce met

with Richey at the detention center. Bruce told Richey he

wanted to talk to him about several cases, including the instant

one. Richey said “he didn’t have no problem with [speaking with

Bruce],” and after being escorted to the law enforcement center,

Richey was again read his Miranda rights. J.A. 185. Richey

replied that “he understood his rights” and that “he wouldn’t

sign [a waiver form], but he would talk to [Bruce].” J.A. 186.

During the questioning, Richey again confessed.

Specifically, he said that “he did go up [to the Pantry] and

robbed it” because he and a girlfriend “needed some money to go

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get some more crack.” J.A. 187. Richey offered to talk to

Bruce about other cases but refused to sign anything.

Richey was indicted for armed robbery, resisting arrest,

pointing and presenting a firearm, kidnapping, and possession of

a weapon by a person convicted of a crime of violence.

Before trial, the defense challenged both the post-arrest

and post-bond statements on involuntariness grounds. Counsel

urged that Richey did not knowingly and voluntarily confess

because he was under the influence of crack-cocaine. The court

ruled that Richey was “[c]learly” in custody and being

interrogated, but determined that whether the statements were

voluntarily, knowingly, and intelligently given was a jury

question. J.A. 193. Accordingly, the post-arrest and post-bond

statements were admitted. 6

The state’s evidence centered on proving that Richey was

the person identified by the eyewitnesses. Ms. Greene made an

in-court identification of Richey as the robber, and she

identified the clothes Richey was wearing when he was arrested

as the clothes worn by the robber. Greene also testified that

the gun and baseball cap found in the field where Richey fled

6
Counsel moved successfully to suppress a third
incriminating statement that is not relevant to this appeal.

10
were the same items she had seen on the day of the robbery. Mr.

Durham testified that he was “absolutely sure” that Richey’s

burgundy shirt was the shirt he saw the robber wearing. J.A.

249. The jury also heard the voice recordings of the 911 calls,

and saw the videotape of the robbery captured on the Pantry’s

security camera.

After a two-day trial, Richey was convicted on all charges

and sentenced to concurrent terms of life imprisonment without

parole for the armed robbery and kidnapping charges, and to a

total of seven years’ imprisonment on the remaining charges.

After Richey’s direct appeal was dismissed, State v.

Richey, No. 2008-UP-686, 2008 WL 9848530 (S.C. Ct. App. Dec. 11,

2008) (per curiam), he sought state post-conviction relief. In

addition to other arguments, Richey asserted that trial counsel

was ineffective for failing to move to suppress the post-arrest

statement on the ground that it was obtained in violation of his

Fifth Amendment right to remain silent.

The state court held an evidentiary hearing in which Richey

and his trial counsel testified. In its order denying and

dismissing Richey’s application with prejudice, the state court

determined that Richey failed to show that his trial counsel

performed deficiently and that he suffered prejudice as a

11
result. Richey v. State (Richey I), No. 2009-CP-23-0702, slip

op. at 6, 8, 10–11 (S.C. Ct. Com. Pl. Dec. 22, 2009).

Thereafter, Richey petitioned for a writ of certiorari,

which was denied.

Richey then sought federal habeas relief. As relevant

here, he again raised the ineffective-assistance claim regarding

the post-arrest statement. Richey also raised, for the first

time, another ineffective-assistance claim regarding the post-

bond statement. As to this second claim, Richey contended that

he “was formally charged and appointed counsel as an indigent”

on November 2, 2002—referring to the bond hearing—so the next

day’s questioning by Detective Bruce, without a lawyer present,

violated Richey’s Sixth Amendment right to counsel. J.A. 26–27.

Richey acknowledged that the claim was procedurally defaulted,

but he argued that his post-conviction-relief counsel’s failure

to raise the claim before the post-conviction-relief court

should excuse the default under Martinez. Richey sought an

evidentiary hearing on the defaulted claim.

The state filed a motion for summary judgment. A

magistrate judge recommended that the district court grant the

state’s motion and dismiss Richey’s habeas petition with

prejudice. On the post-arrest-statement issue, the judge found

that the post-conviction-relief court’s Strickland-performance

12
determination “was supported by the record” and was neither

“contrary to, nor an unreasonable application of, clearly

established federal law.” Richey v. Cartledge (Richey II), No.

5:13-cv-01329-MGL-KDW, 2014 U.S. Dist. LEXIS 124238, at 37–38

(D.S.C. Apr. 22, 2014) (citing 28 U.S.C. § 2254(d)(1)). On the

post-bond-statement issue, the judge found that Richey’s

“conclusory allegations concerning an arraignment that allegedly

took place on November 2, 2002, is insufficient evidence to

establish that his [post-conviction-relief] counsel failed to

adequately raise ‘substantial’ claims concerning the

admissibility of th[e post-bond] statement.” Id. at 28.

Richey objected to the Report and Recommendation and

pointed to Detective Carias’s supplemental police report as

evidence that Richey “was arraigned on November 2, 2002,” where

he was “giv[en] his right[s] and offered counsel which he

accepted.” J.A. 625.

The district court denied Richey’s motion for a hearing,

overruled Richey’s objections, adopted and incorporated the

magistrate judge’s report, granted the state’s motion for

summary judgment, and dismissed Richey’s petition with

prejudice. The court added only a brief discussion related to

Richey’s objections regarding the alleged arraignment and

invocation of his Sixth Amendment right to counsel: The court

found that “[Detective] Carias’s report shows neither that

13
[Richey] was arraigned on November 2, 2002, nor that he was

offered and [that] he accepted counsel on that date.” Richey v.

Cartledge (Richey III), No. 5:13-1329-MGL-KDW, 2014 U.S. Dist.

LEXIS 123955, at 7 (D.S.C. Sept. 5, 2014). Rather, the police

report “states only that (1) Carias obtained and served what

appears to be arrest warrants on [Richey] and (2) [the

magistrate judge] set bond for [Richey] at $35,000. The report

says nothing about an arraignment or the appointment of

counsel.” Id.

This appeal followed.

II.

We review de novo the district court’s grant of summary

judgment, Bostick v. Stevenson, 589 F.3d 160, 163 (4th Cir.

2009), to determine whether the state demonstrated that “there

is no genuine dispute as to any material fact and the [state] is

entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a).

See Brandt v. Gooding, 636 F.3d 124, 132 (4th Cir. 2011).

When the state post-conviction-relief court adjudicates a

habeas petitioner’s claim on the merits, our review under AEDPA

is “highly constrained” and based on the record before the state

post-conviction-relief court. Lawrence v. Branker, 517 F.3d

700, 707 (4th Cir. 2008). We “shall not” grant Richey’s

petition unless the state court’s decision “was contrary to, or

14
involved an unreasonable application of, clearly established

Federal law, as determined by the [U.S.] Supreme Court,” or if

the decision “was based on an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding.” § 2254(d).

When, on the other hand, a habeas petitioner raises a claim

in his federal petition not raised before the state post-

conviction-relief court, the claim is barred for procedural

default. See § 2254(b). If the petitioner shows sufficient

cause for his failure to raise the claim below and actual

prejudice resulting from that failure, we may consider the

claim. Coleman v. Thompson, 501 U.S. 722, 750 (1991).

“Inadequate assistance of counsel at initial-review collateral

proceedings may establish cause for a prisoner’s procedural

default of a claim of ineffective assistance at trial,” but the

petitioner “must also demonstrate that the underlying

ineffective-assistance-of-trial-counsel claim is a substantial

one”—that is, that it has “some merit.” Martinez, 132 S. Ct. at

1315, 1318.

We review Richey’s ineffective-assistance claim regarding

the post-arrest statement under AEDPA’s deferential standard,

and the post-bond-statement claim under Martinez. We turn first

to Richey’s post-arrest-statement claim.

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A.

“At the threshold, we must consider whether [Richey’s]

claim[] [is] premised on ‘clearly established Federal law.’”

Frye v. Lee, 235 F.3d 897, 903 (4th Cir. 2000) (quoting

§ 2254(d)). It certainly is. Under Strickland, Richey must

show both that his trial counsel’s representation “fell below an

objective standard of reasonableness” (deficient performance)

and that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different” (prejudice). 466 U.S. at 688, 694.

We conclude that, even assuming Richey could establish his trial

counsel’s deficient performance, he cannot show that such

performance prejudiced him.

Richey’s theory of prejudice turns on what he perceives as

the weakness of the state’s case against him if the post-arrest

statement had been excluded. To show this supposed weakness,

Richey argues that: (1) Ms. Greene’s and Mr. Durham’s in-court

descriptions of what the robber was wearing were “flawed and

confusing”; (2) the description of the robber was not

“particularly specific” and none of the arresting officers saw

Richey wearing a black ball cap, a black jacket, or a mask;

(3) the arresting officers found Richey in the field near an

apartment complex rather than “near the Pantry;” and (4) “key”

evidence was never found or admitted into evidence, i.e., the

16
robber’s bandana-mask, the stolen cordless phone, the Bi-Lo bag,

the remaining stolen cigarettes, or the robber’s black jacket.

Appellant’s Br. at 26–30. Accordingly, the argument goes, but

for counsel’s failure to move to suppress the statement, there

is a reasonable probability that Richey would not have been

convicted.

Prejudice, however, must be analyzed with the “totality of

the evidence” in mind. Strickland, 466 U.S. at 695. Even

without the post-arrest statement, the state presented

overwhelming evidence of Richey’s guilt, foreclosing any

reasonable probability that, absent counsel’s error, the trial’s

result would have been different.

Richey overstates the impact of the alleged weaknesses in

the state’s case. Although there were some discrepancies in

Durham’s and Greene’s recollections at trial of the robber’s

dress, these were either corrected or rendered immaterial in

light of the overwhelming evidence of guilt. Immediately

following the robbery, Durham and Greene provided matching

descriptions of the robber: a black man wearing blue jeans, a

burgundy shirt, and a black ball cap—most of which Richey was

wearing when police spotted him nearby the Pantry just minutes

after the robbery. 7 That Greene later suggested Richey was not

7 Durham also noted that the robber was wearing a black
jacket.

17
wearing a burgundy shirt when she saw him at the show-up is of

little moment, given that Durham and the officers all recalled

that Richey was in fact wearing a burgundy shirt. Moreover, the

witnesses’ matching descriptions of what the robber was wearing

during the robbery, which were provided to law enforcement

separately, are more probative than one witness’s memory of the

robber’s clothing during a later identification.

Additionally, both Greene and Durham identified, in court,

the burgundy shirt worn by Richey on the day of his arrest as

the shirt worn by the robber. And in broad daylight, within

half an hour of the robbery, Greene and Durham identified Richey

as the robber, with Durham having seen the robber’s face without

a mask for at least one minute from within ten feet. 8 Greene

made an additional in-court identification of Richey as the

robber. Plus, the jury heard recordings of the 911 calls and

saw video footage of the robbery and therefore had ample

opportunity to weigh any inconsistencies in the witnesses’

after-the-fact recollections against those recordings.

That Richey was later spotted by the police wearing

somewhat generic clothes and without the ball cap, black jacket,

or bandana-mask does not minimize the weight of the state’s case

8Richey argues that the show-up identifications were
“influenced by the police.” Appellant’s Br. at 28. We are
satisfied, however, that the show-up was properly conducted and
that any statements by police beforehand did not influence the
witnesses’ identifications of Richey.

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against him. Rather, that Richey’s appearance matched (and in

no way contradicted) the description of the robber is compelling

probative evidence of his guilt. Moreover, contrary to Richey’s

assertion, Officer Lybrand spotted him walking-distance from the

store minutes after the robbery, and immediately after Officer

Skardon attempted to engage with him, he fled. Perhaps more

importantly, when the officers searched Richey, they found

distinct items reported stolen during the offense: most

memorably, two-dollar bills, money tubes, and unopened packs of

Newport cigarettes. A jury would not likely cast aside such

evidence as the product of a series of coincidences.

Officers also found in Richey’s pocket—where Greene saw the

robber put the money from the cash register—other bills in the

precise denominations Greene recalled being in the cash

was found abandoned along Richey’s flight path, and Officer

Lybrand found a gray jacket (albeit not a black one) in the

field where Richey was first found running. Significantly, too,

Richey’s gun was identified by Greene as the one used in the

robbery.

In sum, even without the post-arrest statement, the state’s

case against Richey was robust. Thus, Richey has failed to show

a reasonable probability that, but for counsel’s deficient

19
performance regarding that statement, the outcome of trial would

have been different.

Turning to Richey’s belated ineffective-assistance claim

regarding the post-bond statement, recall that Richey must show

cause to excuse his procedural default by demonstrating that the

underlying claim is “substantial.” Martinez, 132 S. Ct. at

1318. He cannot; even assuming that trial counsel performed

deficiently, Richey cannot show prejudice.

As we have summarized, the state presented overwhelming

direct and circumstantial evidence supporting Richey’s

conviction. Even without the post-bond statement—indeed,

without any confessions—the strength of the remaining evidence

forecloses the reasonable probability that the result of

Richey’s trial would have been different. Richey’s underlying

ineffective-assistance claim is therefore not substantial and

must be rejected for procedural default. See id. at 1319 (“When

faced with the question whether there is cause for an apparent

default, a State may answer that the ineffective-assistance-of-

trial-counsel claim is insubstantial . . . .”). 9

9 Richey also argues that his Fifth Amendment rights were
violated when Detective Bruce spoke with him on November 3. But
because Richey did not raise this issue in the district court,
we decline to consider it. Pruett v. Thompson, 996 F.2d 1560,
1574 (4th Cir. 1993).

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III.

The district court properly granted the state’s motion for

summary judgment and dismissed Richey’s habeas petition. We

therefore

AFFIRM.