Phillip Smith, II v. Josh Stein

982 F.3d 229

• Court: Court of Appeals for the Fourth Circuit
• Decided: December 3, 2020
• Docket: 18-7239
• Status: Published

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 18-7239

PHILLIP VANCE SMITH, II,

Petitioner - Appellant,

v.

JOSH STEIN; ERIK A. HOOKS,

Respondents - Appellees.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, Chief District Judge. (5:17-hc-02103-BO)

Submitted: November 2, 2020 Decided: December 3, 2020

Before NIEMEYER, MOTZ, and RICHARDSON, Circuit Judges.

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

Ashley P. Peterson, Brian D. Schmalzbach, MCGUIREWOODS LLP, Richmond, Virginia, for Appellant. Joshua H. Stein, Attorney General, Sandra Wallace-Smith, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. DIANA GRIBBON MOTZ, Circuit Judge:

Phillip Vance Smith, II, appeals the dismissal of his 28 U.S.C. § 2254 petition as

untimely. Smith contends that McCoy v. Louisiana, 138 S. Ct. 1500 (2018), extended his

limitations period by recognizing a new constitutional right retroactively applicable to

cases on collateral review. See 28 U.S.C. § 2244(d)(1)(c). For the reasons that follow, we

reject this argument and affirm the judgment of the district court.

I.

In 2001, Smith killed a man during the commission of a drug deal, and the State of

North Carolina charged him with first-degree murder. At trial, Smith testified that he acted

in self-defense. Prior to closing arguments, Smith’s counsel told Smith that, given this trial

testimony, counsel felt he “had no choice” but to tell the jury that Smith was guilty of

felony murder. Smith contends, and Respondents do not contest, that Smith informed his

lawyer that he “flat out” “did not agree with him telling the jury [Smith] was guilty of

anything.”

Defense counsel nevertheless told the trial court that he had “talked about it with

Mr. Smith” and that Smith “ha[d] no objection to me arguing that he is in fact guilty as

charged with respect to the felony murder aspect.” When the trial court sought

confirmation from Smith, he said, “if he has got to do it, he has got to do it. If he doesn’t,

I don’t think he should.” A bench conference followed, and the case proceeded to closing

arguments, during which Smith’s counsel did inform the jury that Smith was guilty of first-

degree felony murder. The jury found Smith guilty of murder “[o]n the basis of malice,

2 premeditation, and deliberation,” as well as felony murder. The court sentenced Smith to

life imprisonment without the possibility of parole.

Smith filed a direct appeal, which the Supreme Court of North Carolina denied on

December 4, 2003. On November 10, 2004, Smith filed a timely state postconviction

motion for appropriate relief, which the North Carolina Superior Court denied. Smith did

not appeal, and the Superior Court’s decision became final on March 4, 2005.

In 2016, Smith filed a second motion for appropriate relief, raising four grounds,

including the claim that his trial counsel provided ineffective assistance by admitting to the

jury, without Smith’s consent, that Smith was guilty of felony murder. The state trial court

denied the motion, and the state appellate courts affirmed.

In 2017, Smith filed a federal habeas petition, again raising this claim. The district

court denied the petition as untimely, and Smith noted this appeal. 1

II.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a

one-year statute of limitations on all federal habeas petitions filed by persons in custody

pursuant to the judgment of a state court. See 28 U.S.C. § 2244(d). Smith’s statutory

period under AEDPA began to run when Smith’s conviction became final on March 3,

2004, 90 days after the Supreme Court of North Carolina denied his petition for

discretionary review. See 28 U.S.C. § 2244(d)(1)(A). This one-year statute of limitations

was briefly tolled when Smith sought further review in state court between November 2004

1 We express our thanks to Smith’s court-appointed appellate counsel, Ashley P. Peterson and Brian D. Schmalzbach, for their excellent briefs. 3 and March 2005, but the AEDPA statute of limitations ultimately expired on June 25, 2005.

Because Smith did not file the instant petition until 2017, absent any extension in this

limitations period, Smith’s petition was untimely.

Smith argues that the Supreme Court’s issuance of McCoy v. Louisiana, 138 S. Ct.

1500 (2018), provides the basis for such an extension of the limitations period. In McCoy,

the Court held that the Sixth Amendment guarantees a defendant the right to choose the

objective of his defense and to insist that his counsel refrain from admitting guilt. The

McCoy Court explained that this right exists even when a defendant’s counsel concludes

that confessing guilt offers the defendant the best chance to avoid the death penalty.

McCoy had “vociferously insisted that he did not engage in the charged acts and

adamantly objected to any admission of guilt.” Id. at 1505. But at the guilt phase, and

again at the penalty phase, of McCoy’s capital trial, the trial court permitted defense

counsel to concede McCoy’s guilt. Id. at 1506–07. The trial court reasoned that it was the

attorney’s task to determine how to best present his client’s case. Id.

The Supreme Court rejected this rationale and reversed, holding that the right to

counsel under the Sixth Amendment includes a right to “[a]utonomy to decide that the

objective of the defense is to assert innocence.” Id. at 1508. Although “[t]rial management

is the lawyer’s province,” counsel is “still an assistant” to the defendant and “may not

override [her client’s objections] by conceding guilt.” Id. 1508–09 (citation and internal

quotation marks omitted). Therefore, once a defendant “communicate[s] [his objection] to

court and counsel, . . . a concession of guilt should [be] off the table.” Id. at 1512. The

4 Court further concluded that a violation of this right constitutes structural error and requires

“a new trial without any need first to show prejudice.” Id. at 1511.

Smith contends that McCoy recognized a new rule of constitutional law retroactively

applicable to his case that effectively extended the AEDPA limitations period for one year.

Federal law provides that the limitations period for a habeas petition runs from “the date

on which the constitutional right asserted was initially recognized by the Supreme Court,”

but only “if the right has been newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral review.” 28 U.S.C. § 2244(d)(1)(C). Thus,

to obtain the benefit of this limitations period, a habeas petitioner must demonstrate (1) that

the Supreme Court recognized a new right; and (2) that the right has been made

retroactively applicable to cases on collateral review. We turn to the question of whether

Smith has made that showing.

III.

The principles articulated in Teague v. Lane, 489 U.S. 288 (1989), and its progeny

guide our analysis of this question. In Teague, the Supreme Court set forth the framework

for determining whether a rule it has announced should be applied retroactively to final

judgments in criminal cases. Id. at 310. Under Teague, “an old rule applies both on direct

and collateral review, but a new rule is generally applicable only to cases that are still on

direct review.” Whorton v. Bockting, 549 U.S. 406, 416 (2007) (citing Griffith v. Kentucky,

479 U.S. 314 (1987)). However, a “new rule” applies retroactively in a collateral

proceeding if the rule is substantive, rather than procedural, or if it is a “‘watershed rul[e]

of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal

5 proceeding.” Id. (alteration in original) (quoting Saffle v. Parks, 494 U.S. 484, 495 (1990));

see also Teague, 489 U.S. at 307. The parties recognize that the McCoy rule is not

substantive. Accordingly, to be retroactively applicable it must be both a “new rule” and

a “watershed rule.”

A.

As to the first of these requirements, “a case announces a new rule if the result was

not dictated by precedent,” Teague, 489 U.S. at 301 — that is, the rule would not have

been “apparent to all reasonable jurists,” Lambrix v. Singletary, 520 U.S. 518, 528 (1997).

“In general, . . . a case announces a new rule when it breaks new ground or imposes a new

obligation on the States or the Federal Government.” Teague, 489 U.S. at 301.

Prior to McCoy, the Supreme Court had viewed a lawyer’s concession of guilt as a

tactical choice that counsel could make — in the absence of her client’s consent — without

exceeding constitutional limitations. In Florida v. Nixon, the Court had determined that

the Constitution does not bar counsel from conceding a capital defendant’s guilt at trial

“when [the] defendant, informed by counsel, neither consents nor objects.” 543 U.S. 175,

178 (2004). 2 Rejecting “a blanket rule demanding defendant’s explicit consent,” Nixon

unanimously determined that such an admission was not automatically prejudicial

ineffective assistance of counsel. Id. at 192.

2 The Supreme Court’s decision in Nixon was issued in November 2004, a few months after Smith’s conviction became final in March 2004. However, Smith maintains, and Respondents do not contest, that Nixon reflects the “legal landscape” that existed at the time of Smith’s conviction. See Beard v. Banks, 542 U.S. 406, 411 (2004).

6 The McCoy Court specifically stated that Nixon’s holding was “not . . . contrary” to

its holding because “Nixon never asserted” that he opposed counsel’s proposed approach.

138 S. Ct. at 1509. This might suggest that the Court did not regard McCoy as recognizing

a new rule. But the Supreme Court has explained that the fact that it has said a “decision

is within the ‘logical compass’ of an earlier decision, or indeed that it is ‘controlled’ by a

prior decision, is not conclusive” as to whether the decision recognizes a new rule. Butler

v. McKellar, 494 U.S. 407, 415 (1990). The McCoy majority did not cite any controlling

precedent as dictating its holding. Moreover, unlike Nixon, which had followed the logic

of Strickland v. Washington, 466 U.S. 668 (1984), McCoy rejected arguments that the

ineffective-assistance-of-counsel line of cases governs when a client voices his objection.

Instead, “[b]ecause a client’s autonomy, not counsel’s competence, is in issue,” McCoy

placed conceding guilt as among the types of decisions reserved for clients under the Sixth

Amendment. 138 S. Ct. at 1511; see also id. at 1508–09 (“Some decisions [] are reserved

for the client — notably, whether to plead guilty, waive the right to a jury trial, testify in

one’s own behalf, and forgo an appeal. Autonomy to decide that the objective of the

defense is to assert innocence belongs in this . . . category.”) (citation omitted).

McCoy might also be considered a new rule because it appears to have been

“susceptible to debate among reasonable minds.” Butler, 494 U.S. at 415. The Louisiana

Supreme Court determined in McCoy itself that counsel had taken “a reasonable course of

action,” that “constitute[d] reasonable trial strategy.” State v. McCoy, 218 So. 3d 535, 566,

572 (La. 2016). And Justice Alito noted in dissent, the McCoy rule appears to be a “newly

7 discovered constitutional right” that “made its first appearance,” in that decision. 138 S.

Ct. at 1514, 1518 (Alito, J., dissenting).

However, we need not here resolve this issue, see, e.g., United States v. Mathur, 685

F.3d 396, 398–99 (4th Cir. 2012), because in all events McCoy did not establish a

watershed rule.

B.

A watershed rule of criminal procedure is one that “requires the observance

of ‘those procedures that . . . are implicit in the concept of ordered liberty.’” Teague, 489

U.S. at 307 (alteration in original) (quoting Mackey v. United States, 401 U.S. 667, 693

(1971) (Harlan, J., concurring)). For a new procedural rule to be “watershed,” it (1) “must

be necessary to prevent an impermissibly large risk of an inaccurate conviction” and

(2) “alter our understanding of the bedrock procedural elements essential to the fairness of

a proceeding.” Whorton, 549 U.S. at 418 (internal quotation marks omitted).

The McCoy rule may well be necessary to prevent an impermissibly large risk of an

inaccurate conviction. McCoy itself recognized that “a jury would almost certainly be

swayed by a lawyer’s concession of his client’s guilt,” and that “the effects of the admission

would be immeasurable.” McCoy, 138 S. Ct. at 1511. Indeed, the Supreme Court held the

McCoy error structural, requiring a new trial in all cases on direct appeal. Id.; see also

Mickens v. Taylor, 535 U.S. 162, 166 (2002) (“[W]here assistance of counsel has been

denied entirely or during a critical stage of the proceeding . . . the likelihood that the verdict

is unreliable is so high that a case-by-case inquiry is unnecessary.”). Unlike cases in which

procedural rights do not directly pertain to “accuracy in the fact-finding process,” see, e.g.,

8 Mathur, 685 F.3d at 400, the denial of representation creates a risk of an unreliable verdict

which “is intolerably high.” Whorton, 549 U.S. at 419.

But the watershed-rule requirement instituted in Teague also demands that a new

rule must alter our understanding of “essential” and “bedrock procedural element[s].”

489 U.S. at 315. It is “not enough” “[t]hat a new procedural rule is ‘fundamental’ in some

abstract sense.” Schriro v. Summerlin, 542 U.S. 348, 352 (2004). Nor is it sufficient that

a new rule “is based on a ‘bedrock’ right.” Whorton, 549 U.S at 420–21. The requirement

is “extremely narrow,” Schriro, 542 U.S. at 352, and the Supreme Court has never found a

new procedural rule to be “watershed” even though it has considered the question more

than a dozen times. See, e.g., Whorton, 549 U.S. at 418 (collecting cases).

The one decision that the Court has suggested “might fall within this exception” is

Gideon v. Wainwright, 372 U.S. 335 (1963), which incorporated the Sixth Amendment

right to counsel against the states and held that an indigent defendant in a criminal case has

the right to have counsel appointed for him. Beard, 542 U.S. at 417. Before the institution

of the “watershed” requirement in Teague, the Supreme Court repeatedly addressed rules

derived from Gideon — like the right to counsel at plea hearings, the right to counsel at

probation revocation hearings, the right to counsel on appeal, and the right to counsel at

any prosecution leading to actual imprisonment — and held them retroactively applicable.

Arsenault v. Massachusetts, 393 U.S. 5, 6 (1968); McConnell v. Rhay, 393 U.S. 2, 3–4

(1968); Berry v. City of Cincinnati, 414 U.S. 29, 29–30 (1973). But under the analysis

required by Teague, Gideon itself seems to be the only example of a rule with sufficient

“‘primacy’ and ‘centrality’” to have possibly “effected a profound and ‘sweeping’ change”

9 justifying retroactive application. Whorton, 549 U.S. at 420 (quoting Saffle, 494 U.S. at

495; Beard, 542 U.S. at 418). As the Supreme Court has repeatedly stated, it is “unlikely”

that any watershed rules “have yet to emerge.” Teague, 489 U.S. at 313; accord Schriro,

542 U.S. at 352; Tyler v. Cain, 533 U.S. 656, 667, n.7 (2001); Sawyer v. Smith, 497 U.S.

227, 243 (1990).

To be sure, the McCoy rule shifts the balance of power between counsel and client

and preserves an essential right for a defendant: the “right to make the fundamental choices

about his own defense.” 138 S. Ct. at 1511. And McCoy, of course, derives from Gideon.

But, at bottom, McCoy presupposes what Gideon commanded — that a criminal defendant

has a right to counsel in the first place. McCoy refines the Gideon rule, but it is an extension

of a watershed rule rather than a watershed rule itself.

IV.

For the foregoing reasons, we hold that the rule announced in McCoy v. Louisiana,

138 S. Ct. 1500, is not retroactively applicable on collateral review. 3 Accordingly, Smith’s

petition is untimely and the judgment of the district court is

AFFIRMED.

3 Respondents argue that the rule announced in McCoy also does not assist Smith because (1) Smith testified that he shot the victim and (2) the McCoy rule arose in a death penalty case and Smith did not face capital punishment. Given our resolution of this appeal, we do not reach these issues. 10