Opposition Brief — Whitner v. South Carolina
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No. 97-1562
. NAOT ORR Ae SE
rhe i
In The ee ee nite”
Supreme Court of the United States
October Term, 1997
ee ne ke Petitioner.
VS.
STATE OF SOUTH CAROLINA, ....... Respondent.
NR OT GS eB oy Gr Petitioner,
VS.
MICHAEL MOORE, as Director of the South Carolina
Department of Corrections, ........... Respondent.
On Petition for Writ of Certiorari
To the South Carolina Supreme Court
BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
CHARLES M. CONDON DAVID K. AVANT
Attorney General Assistant Deputy Attorney
General
JOHN W. McINTOSH
Chief Deputy Attorney General G. ROBERT DeLOACH, Ill
Assistant Attorney General
* DONALD J. ZELENKA P.O. Box 11549
Assistant Deputy Attorney General Columbia, $.C. 29211
and Counsel of Record (803) 734-3970
Attorneys for the Respondents
ene ce EEE LIN TERME Fe nr
PETITIONERS’ QUESTION PRESENTED
Whether the South Carolina Supreme Court's
unprecedented and unforeseeable decision reinterpreting the
State's criminal child endangerment statute to expand the
definition of "child" in "legal custody" to include a viable
fetus violates the Fourteenth Amendment's requirement of
due process notice and its prohibition against vague criminal
Statutes?
RESPONDENTS’ COUNTER-STATEMENT
OF THE QUESTIONS PRESENTED
1. Does this Court lack jurisdiction to review
Petitioner Crawley’s claims that the Respondents violated her
constitutional rights, where the sole issue preserved for
review concerned a question of state law?
2. Do the various interpretations of child abuse and
drug abuse laws by the several states justify certiorari
review, where those decisions turned on interpretations of
State law rather than federal constitutional grounds?
3. Do the Petitioners’ convictions satisfy due process
requirements, where previous decisions of the state supreme
court gave adequate notice that a viable fetus was a person
protected by the unlawful neglect statute?
4. Does the potential prosecution for other
unspecified conduct require certiorari review, where the
Statute clearly proscribes the Petitioners’ conduct, and the
burden of proof minimizes the danger of unwarranted
applications of the statute?
TABLE OF CONTENTS
Petitioners’ Question Presented .. 2... cee eee
Respondents’ Counter-Statement of the Questions
FUORI. 6 sk Se SS i Os Se ee
Curation 00 Gnas GOW cs 5 se CE Ee ks
PS SSC CN Fea wee ee
Constitutional and Statutory Provisions
IVOGINOE 66 kw ne Ge SS we Ree er i ea eee
How the Questions Were Raised Below ..........
Reasons for Denying the Writ... . 2... 22 ce ees
A. There is no conflict among the states
concerning the application of child abuse laws
to viable fetuses because the cases from other
jurisdictions turn upon an interpretation of
ee ee re See ee
B. The Petitioners’ convictions satisfy due
process requirements because the previous
decisions of the state supreme court gave
them adequate notice that a viable fetus was
protected by the unlawful neglect statute ....
ii
13
C. The application of the statute to other conduct
plainly hazardous to the health and safety of
a viable fetus does not render it impermissibly
vague as applied to the Petitioners ........
D. Petitioner Crawley’s failure to timely raise
her federal constitutional claims has defaulted
these issues for certiorari review in this
Court
Conclusion
0; eee, ee ee Be eee ee ee ee ee ew aehe SoS
iii
21
TABLE OF AUTHORITIES
Cases
Alabama State Federation of Labor v. McAdory, 325 U.S.
SSO TI hE. Ba ee ee ive i se 8 22
Amann vy. Faidy, 415 Ill. 422, 114 N.E.2d 412
(PRS a) VA AS URRASA SN RAS OS ee 16
Ashwander v. Tennessee Valley Authority, 297 U.S. 288
CEs a Ea eee a STKE eS 22
Bouie v. City of Columbia, 378 U.S. 347
SP eS Leechers te eee RRS RS 14, 19, 20
Boyleston v. Southern Railway Co., 211 §.C. 232, 44 S.E.2d
Se CID 6 ERAS ce ee 24
Colautti v. Franklin, 439 U.S. 379
SP cS ce Oe ewe EME: hE ER 15
Coleman v. Thompson, 501 U.S. 722
Ft ee a ee es CR eee 26, 28
Commonwealth v. Welch, 864 S§.W.2d 280
Oe SI eae vee Cee eee ee ee es 11
Evans v. Manning, 217 S.C. 10, 59 S.E.2d 341, cert. denied
Se Ti BEE Th ee ee ee Cae sk 26, 27
Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42
(TSR) SSeS eee i Hee Se aes 17-19
CP AC iss be RE eRe 15-19, 25
iV
Hortonville Joint School Dist. v. Hortonville Educ. Ass Nn,
Ws OE PTE ho oa eck ee Belt 12
Int’l Longshoremen’s and Warehousemen’s Union v. Boyd,
PUES, Bee 68 6 io ek cS 22
Johnson v. State, 602 So.2d 1288 (Fla.
WO Ws Bae Ain ok kk he as es 1]
Maher v. Roe, 432 U.S. 464
a, OPPS Fae Oe fy OO re ay 19
Martin v. Ohio, 480 U.S. 228
RN Oe A ae wr Sea een A a 12
McCarthy v. United States, 394 U.S. 459
OM Ais Cc eee ea ee cae Ce ee 14
McCleskey v. Kemp, 481 U.S. 279
CE a se PRA Oe Ewe ee ae ke 12
Michigan v. Long, 463 U.S. 1032
UR 6S bs CL eh Oka ck: Ra as pebg ag 27, 28
Parker v. Levy, 417 U.S. 733
SReeE 8 4 4a bebe RES ke ew 24
People v. Hardy, 188 Mich.App. 305, 469 N.W.2d 50
CIPEUE eis 5 ia ions SarWicenae te OS 11
Powell v. Texas, 392 U.S. 514
ROPE Rise hoe gk bs CN es os Oe 21
Raley v. Ohio, 360 U.S. 423
Ek 94 Bae 1 ee a ee owe ce 21
Vv
Reinesto v. Superior Court, 182 Ariz. 190, 894 P.2d 733
CA. AMD 298) sr CEOS Vee Pee eee 1]
Reyes v. Superior Court, 75 Cal.App.3d 214, 141 Cal. Rptr.
PEE EGLO). RE COCR PETITE 11
Roe v. Wade, 410 U.S. 113
ON ctuuk ois de See Oe eee 19, 20, 24
Rose v. Locke, 423 U.S. 48
CO ONE a Se ERO a he 21
Sheriff v. Encoe, 110 Nev. 1317, 885 P.2d 596
Cee a Ss ae ea ee 11
CE ls IRN wR ile eles 22
SE a SATES VE Oe ae ee ee 11
State v. Dunn, 82 Wash.App. 122, 916 P.2d 952
kis WRI iio es eS Cans 6 ee aes 11
State v. Gray, 62 Ohio St.3d 514, 584 N.E.2d 710
ee SGN es SS OS SES SE ee eS I]
State v. Horne, 282 S.C. 444, 319 §.E.2d 703
SOUR erate. F.5d Sree 18, 19
State v. Jenkins, 278 §.C. 219, 294 §.E.2d 44
CEs Wek AR oe a OE SS Pee 21, 22
State v. Luster, 204 Ga.App. 156, 419 S.E.2d 32
CPU Se ROS ROE RES IE CSS 1]
vi
oe
H
4
;
;
3
é
:
z
Teague v. Lane, 489 U.S. 288
SRM kk Wake Se Wed CW ke Rowe eee a 26
SME AR ako n'a eee Cee GIL FSA AG 23
United States v. Lanier, ____ U.S. ___, 117 S.Ct. 1219, 137
RA en SEE i's Ae we ee oe 14, 15, 20
United States v. Mazurie, 419 U.S. 544
GENESEE RARER UR OE RONEN! eRe es Fd MEN 23
ALLS BOPP ORR Ey > Sp es ce kaa ae 26
og BM AS Ni tn APSA RM ym Ee by aL 15, 20
CPR 0 ME POO Oy URL a rea a4, 23
Whitner v. State, __ S.C. __, 492 §.E.2d 777
Gee ha IRA eu WGh ee ek ws passim
Yist v. Nunnamaker, 501 U.S. 797
2s RRR U Es: Sesie" Mea aE eed Sara URN Ne CE Ie Ree Pe 27
Constitutional Provisions and Statutes
Be Ce Be rere ee A 2
See en Ce ke ba ee 15
Fees Oise GN B.C wie, oe tee 16
Vil
S.C. Cope ANN: 4 15-5-50- (1977 ve ere Se 16
S.C. COME AMM, F 1S-S0=t) CEPT i ik obs 6 seo 17
S.C. CODE ANN. § 16-3-10 (1985) ............ 18
S.C. CODE ANN. § 20-7-30(1) (1985) ........ 3, 19
S.C. CODE ANN. § 20-7-50 (1985) ........... passim
OB COT. COI. Aa a Gs hele raceiok 4 2
Unreported Opinions
Cornelia Whitner v. State, Op. No. 24468 (S.C. Sup. Ct.
FRE PT So Ob eek ik uc saice Garin ew ts doe See
Malissa Ann Crawley v. Parker Evatt, Op. No. 97-MO-117
tag Oc Me 6. OR es ee err 2
Vili
Ce ee eT ea ee
No. 97-1562
In The
Supreme Court of the United States
October Term, 1997
CORNELIA WHITMORE 958s. oe er ey Petitioner,
VS.
STATE OF SOUTH CAROLINA, ...... Respondent.
MALISSA ANN CRAWLEY,.......... Petitioner,
VS.
MICHAEL MOORE, as Director of the South Carolina
Department of Corrections, ........... Respondent
On Petition for Writ of Certiorari
To the South Carolina Supreme Court
BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI
The Respondents submit that this Court should deny
and dismiss the petition to review the judgments of the South
Carolina Supreme Court.
¢
CITATIONS TO OPINIONS BELOW
The South Carolina Supreme Court's opinicn in
Petitioner Whitner’s case is dated October 27, 1997, and
reported at_—s S.C. ___, 492 S.E.2d 777 (1997).' The
state supreme court denied the petition for rehearing from
that decision on November 19, 1997.
The state supreme court issued an unpublished
opinion in Petitioner Crawley’s case on December 1, 1997.
Malissa Ann Crawiey v. Parker Evatt, Op. No. 97-MO-117
(S.C. Sup. Ct. filed Dec. 1, 1997). See PET. APP. at 89a-
90a. The justices denied the petition for rehearing from that
decision on January 8, 1998.
a
JURISDICTION
The Petitioners invoke this Court’s jurisdiction
pursuant to 28 U.S.C. § 1257.
+
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
This case involves the following:
1. The Fourteenth Amendment to the United States
Constitution, which states in pertinent part:
No state shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any
' The South Carolina Supreme Court issued its original opinion on
July 15, 1996. See Petitioner's Appendix ["PET. App."] at 28a. The
State supreme court granted Petitioner Whitner's petition for rehearing
from that decision, and issued its amended opinion on October 27, 1997.
2
State deprive any person of life, liberty, or
property, without due process of law....
2. S.C. CODE ANN. § 20-7-30(1) (1985), which
states:
When used in this chapter and unless
otherwise defined or the specific context
indicates otherwise:... "Child" means a
person under the age of eighteen.
3. S.C. CODE ANN. § 20-7-50 (1985), which stated:
Any person having the legal custody of any
child or helpless person, who shall, without
legal excuse, refuse or neglect to provide, as
defined in § 20-7-490, the proper care and
attention for such child or helpless person, so
that the life, health or comfort of such child
or helpless person is endangered or is likely
to be endangered, shall be guilty of a
misdemeanor and shall be punished within the
discretion of the circuit court:
°
STATEMENT OF THE CASE
A. PROCEDURAL HISTORY.
(1) Petitioner Whitner’s Case.
On February 6, 1992, the City of Easley, South
Carolina arrested Petitioner Whitner for a violation of S.C.
Code Ann. § 20-7-50 (1985) styled “unlawful neglect of a
child." The Pickens County Grand Jury indicted Petitioner
Whitner on April 7, 1992 for the same offense, and she pled
guilty to “unlawful neglect of a child” on April 20, 1992.
The Honorable Frank Eppes then sentenced Petitioner
Whitner to eight years imprisonment. No objections were
made to the charge or jurisdiction of the court, and
Petitioner Whitner did not appeal her conviction or sentence.
On May 10, 1993, Petitioner Whitner filed a state
post-conviction relief application. The Honorable Larry R.
Patterson held a hearing on November 1, 1993, and issued
an order vacating the convictions on November 22, 1993.
The State appealed Judge Patterson’s order.
Following briefing and oral argument, the South Carolina
Supreme Court reversed the granting of post-conviction relief
on July 15, 1996. The state supreme court later granted
Petitioner Whitner’s petition for rehearing and issued an
amended opinion on October 27, 1997. The state supreme
court denied rehearing from that opinion on November 19,
1997.
(2) Petitioner Crawley’s Case.
On November 29, 1991, the City of Anderson, South
Carolina arrested Petitioner Crawley for a violation of S.C.
CODE ANN. § 20-7-50 (1985) styled “unlawful neglect of a
child." Petitioner Crawley waived grand jury presentment
and pled guilty as charged on January 6, 1992. The
Honorable Tom J. Ervin then sentenced Petitioner Crawley
to five years imprisonment, suspended during five years
2 The State charged the Petitioners under this version of the statute.
The South Carolina General Assembly designated the crime a felony in
1993, and omitted the reference to “helpless persons” in 1996.
4
eR a
probation. She did not appeal her conviction or sentence.
On August 5, 1994, Judge Frank Eppes revoked
Petitioner Crawley’s probation and reinstated the active
sentence based upon her July 15, 1994 conviction for
criminal domestic violence. She did not appeal her
revocation.
On September 25, 1994, Petitioner Crawley filed a
State petition for writ of habeas corpus. The Honorable H.
Dean Hall granted the writ on September 30, 1994, and set
a hearing on the merits for October 17, 1994. At the
conclusion of the merits hearing, Judge Frank Eppes issued
a formal written order vacating Petitioner Crawley’s
conviction and sentence.
The State appealed Judge Eppes’ order. On
December 1, 1997, the state supreme court reversed the
granting of state habeas relief, and reinstated Petitioner
Crawley’s conviction and sentence. The state supreme court
denied her petition for rehearing on January 8, 1998. On
February 27, 1998, Chief Justice Rehnquist denied Petitioner
Crawley’s request to remain on bond during the pendency of
her appeal to this Court.
B. STATEMENT OF RELEVANT FACTS.
(1) Petitioner Whitner’s Case.
Petitioner Whitner gave birth to a son, Kevin Sean,
at the Easley Baptist Medical Center on February 2, 1992.
The hospital tested the victim's blood, which showed the
presence of the illegal substance of cocaine in his
bloodstream.
(2) Petitioner Crawley’s Case.
Petitioner Crawley gave birth to a son, Antwon
Lorenzo, at Anderson Memorial Hospital on November 9,
1991. Both Petitioner Crawley and the victim tested positive
for the presence of the illegal substance of cocaine in the
bloodstream. Petitioner Crawley later admitted to the
arresting officer that she unlawfully used cocaine during her
pregnancy.
Sf
HOW THE QUESTIONS WERE RAISED BELOW
A. PETITIONER WHITNER’S CASE.
Petitioner Whitner’s post-conviction relief application
alleged that the State was holding her in custody unlawfully
because:
(1) [She] entered a plea of guilty to a crime that
does not exist in South Carolina...
[She] was indicted for child abuse for giving
birth to a child who had cocaine in his
system. [She is] now informed that the
Statute under which [she] was indicted and
plead guilty does not apply to a fetus.... PET.
APP. at 58a-59a;
(2) The indictment and facts upon which [she]
plead guilty does not allege a crime. To
allow a conviction upon an indictment and
facts that do not allege a crime is a violation
of Article I, § 3 of the Constitution of the
State of South Carolina and the Fourteenth
oi
Amendment to the Constitution of the United
States of America...
A person can only be imprisoned for a crime.
As to the facts under which I entered a plea
of guilty do not constitute a crime, I am being
unlawfully held in prison.... PET. APP. at
58a-59a.
As 2S tit
(3) [She] was denied effective assistance of
counsel in that I plead guilty to a crime that
does not exist...
{Her} attorney failed to adequately research
the question as to whether taking drugs while
pregnant was a violation of South Carolina
Code of Laws § 20-7-50. PET. APP. at 58a-
59a.
stan sae Mes eth, sie Diab PORES OE Nate ot ao be
On November 22, 1993, Judge Patterson ruled that
the sentencing court lacked subject matter jurisdiction to
i accept Petitioner Whitner’s plea because "the crime for
: which [she] was charged does not exist in South Carolina."
PET. APP. at 67a. Judge Patterson further ruled that plea
‘ counsel was ineffective because she “did not challenge
: application of § 20-7-50 to these facts." PET. APP. at 68a.
On writ of certiorari, the Supreme Court of South
Carolina reversed the granting of post-conviction relief. The
supreme court ruled that a viable fetus was a "person" under
state law and entitled to protection under the unlawful
: neglect statute. Cornelia Whitner v. State, Op. No. 24468
(S.C. Sup. Ct. filed July 15, 1996) ("Whitner 1"),
reproduced in PET. APP. at 28a-35a.
On petition for rehearing, the state supreme court
addressed Petitioner Whitner’s federal constitutional claims.’
The amended opinion rejected her argument that she lacked
notice that the statute proscribed prenatal exposure to
cocaine. Whitner v. State, _ S.C. ___, 492 S.E.2d 777,
784-85 (1997) ("Whitner II"). The state supreme court then
rejected her argument that the interpretation of the statute
was void for vagueness.* /d., 492 S.E.2d at 785.
B. PETITIONER CRAWLEY’S CASE.
Petitioner Crawley’s state habeas corpus petition
alleged that her confinement was unlawful for the following
reason:
The Petitioner believes that she is being held
unlawfully due to the fact that the act to
which she pled guilty is not a crime in the
State of South Carolina. As a result, the trial
court did not have jurisdiction to either accept
her plea or to revoke her probation. As the
charge against her, based upon the act she is
alleged to have committed, is not a crime
within the State of South Carolina, she is
> The state supreme court initially refused to consider these claims
because Judge Patterson's order did not address the issues. See PET.
App. at 43a-44a; PET. APP. at 64a-69a.
‘ The state supreme court also rejected Petitioner Whitner’s
argument that the statute as applied violated her right to privacy. Id.,
492 S.E.2d at 785-86. The Petitioners now state that the statute may
implicate this right and others, but "this Court need not reach these issues
in this case...” in determining whether to review the judgments below.
Petition for a Writ of Certiorari |"PET.”| pp. 28-29. Accordingly, the
Petitioners have waived these arguments for certiorari review by this
Court.
te Aa PDE Dea ae: BET at Sie le
being held in violation of the due process
clause of Article I, § 3 of the Constitution of
the State of South Carolina and the Fourteenth
Amendment of the Constitution of the United
States of America. PET. APP. at 85a.
In vacating the conviction, Judge Eppes noted that the
Petitioner "contends she is being held unlawfully in violation
of the due process clause....". PET. APP. at 86a. However,
in addressing the merits of the petition, Judge Eppes held
that "The sole question for the court is whether the petitioner
pled guilty to a crime that does not exist in South Carolina."
PET. APP. at 87a. Judge Eppes held that since “all other
circuit court [sic] that have addressed the issue have resolved
the issue in favor of the petitioner, this court feels that it
must also grant the relief requested." PET. APP. at 87a.
On direct appeal, the Supreme Court of South
Carolina allowed Petitioner Crawley to hold the time limits
for filing her initial brief in abeyance while the decision in
Petitioner Whitner’s case was pending. After the state
supreme court issued Whitner I, Petitioner Crawley filed a
brief raising a number of constitutional issues, but avoiding
the jurisdictional questions. On reply, the State argued that
the federal constitutional claims were procedurally barred
because neither the habeas petition nor Judge Eppes’ order
addressed these arguments.
After reviewing the record and appellate briefs, the
Supreme Court of South Carolina decided the case without
oral argument. The December 1, 1997 order simply states:
The State has filed an appeal following the
grant of respondent’s petition for a writ of
habeas corpus. We reverse the grant of
habeas corpus and reinstate respondent’s
conviction for unlawful neglect of a child.
Whitner v. State, Op. No. 24468 (S.C. Sup.
Ct. Refiled October 27, 1997) (Davis Adv.
Sh. No. 30 at 27); S.C. CODE ANN. § 20-7-
50 (Supp. 1995). Pet. App. at 90a.
oa
REASONS FOR DENYING THE WRIT
A. There is no conflict among
the states concerning the
application of child abuse
laws to viable fetuses because
the cases from other
jurisdictions turn upon an
interpretation of legislative
intent.
The Petitioners urge this Court to grant certiorari
review because the South Carolina Supreme Court’s
interpretation of state law “directly conflicts with the
decisions of its sister state courts." PET. pp. 12-13. This
statement is not only misleading, but misrepresents the basis
for the other decisions which prohibited prosecutions for
prenatal abuse of a fetus.*
Three of the reported cases cited by the Petitioners
concerned whether the use of drugs by a pregnant woman
* Based upon Petitioner Crawley's procedural default set forth in
Respondents’ Question | and argument D, arguments (A), (B) and (C)
properly apply to Petitioner Whitner. However, if this Court determines
that Petitioner Crawley is properly before it, then the arguments on the
merits also apply to her constitutional claims and should not be deemed
waived by the Respondents.
10
LBP CT ist
constituted a "delivery" to the viable fetus under those states’
drug laws. State v. Luster, 204 Ga.App. 156, 419 S.E.2d
32 (1992); People v. Hardy, 188 Mich.App. 305, 469
N.W.2d 50 (1991); Johnson v. State, 602 So.2d 1288 (Fla.
1992). A quartet of state appellate courts concluded that the
legislature did not intend their child abuse statutes to protect
viable fetuses from prenatal exposure to drugs. However,
nothing prevented lawmakers from doing so. State v. Gray,
62 Ohio St.3d 514, 516, 584 N.E.2d 710, 711 (1992); State
v. Dunn, 82 Wash.App. 122, 128-29, 916 P.2d 952, 955
(1996); Sheriff v. Encoe, 110 Nev. 1317, 1321-22, 885 P.2d
596, 598 (1994); Reinesto v. Superior Court, 182 Ariz. 190,
192-93, 894 P.2d 733, 735-36 (Ct. App. 1995). Unlike
South Carolina, two of the cited jurisdictions do not extend
their homicide laws to protect a viable fetus, thereby
precluding a similar extension to child abuse laws. See
Commonwealth v. Welch, 864 S.W.2d 280, 281 (Ky. 1993);
Reyes v. Superior Court, 75 Cal.App.3d 214, 217, 141
Cal.Rptr. 912 (1977). Finally, Texas has construed its child
abuse law and held that it did not criminalize an injury
which did not manifest itself until after the child was born.
State y. Collins, 890 S.W.2d 893 (Tex. Ct. App. 1994).
Like Kentucky and California, Texas penal law “has
specifically limited the application of [its] penal laws to
conduct committed against a human being who has been born
and is alive.” Jd., 890 S.W.2d at 897-98.
A plain reading of the reported decisions shows the
other appellate courts based their rulings on an interpretation
of state law and legislative intent. Importantly, none of
these decisions categorically rejected or prohibited the
legislature’s power to criminalize the conduct for which the
Petitioners were prosecuted.® Instead, the courts concluded
that the legislature did not intend the result sought by
prosecutors under state law.
The South Carolina Supreme Court has reached the
opposite conclusion regarding the legislative intent of this
state’s unlawful neglect statute.’ The correctness of the
state supreme court’s interpretation of the statute cannot be
reviewed in this Court. "We are, of course, bound to accept
the interpretation of [South Carolina] law by the highest
court of the State." Hortonville Joint School Dist. v.
Hortonville Educ. Ass’n, 426 U.S. 482, 488 (1976).*
Conversely, the other jurisdictions have interpreted their
child abuse and drug laws as a matter of state law. If the
other states choose not to prosecute under their respective
laws, those decisions do not create a federal constitutional
issue. Cf. Martin v. Ohio, 480 U.S. 228, 236 (1987)
[Although majority of states did not require proof of self-
* Those state courts addressing the issues of notice and vagueness
did so because they concluded that prior state law did not support the
interpretation urged by prosecutors. As shown infra in Argument B, the
Petitioners had ample notice that their conduct was encompassed by this
state's unlawful neglect statute.
7 The Petitioners heavily rely upon past legislative history as an
indication of the General Assembly's intent. PET. pp. 9-10. It is
noteworthy that, in the two years following Whitner |, the legislature has
not amended the statute to correct the state supreme court's alleged
misinterpretation.
® The Petitioners have argued that the State's policy “will endanger
both fetal and maternal health by frightening women away from prenatal
and other needed care.” PET. p. 10. This argument concerns the
propriety of the punishment, and is properly a legislative policy question
rather than a judicial concern. McCleskey v. Kemp, 481 U.S. 279, 319
(1987).
12
defense by a preponderance of the evidence, the states
imposing that requirement did not violate due process].
The issue whether the Constitution allows South
Carolina to prosecute the Petitioners for their violation of
State law is a separate and distinct inquiry. Therefore, since
there is no conflict between the states in the application of
federal constitutional law, this Court should not grant
certiorari review on this basis.
B. The Petitioners’ convictions
satisfy due process
requirements because the
previous decisions of the state
supreme court gave them
adequate notice that a viable
fetus was protected by the
unlawful neglect statute.
The Petitioners assert they could not have foreseen
that the reference to a “child” in the unlawful neglect statute
included an unborn, viable fetus. Accordingly, they
conclude that they had no notice that the statute prohibited
their ingestion of cocaine while pregnant. PET. pp. 17-20.
These arguments have no merit. The prior decisions of the
state supreme court gave the Petitioners ample notice that a
viable fetus was a protected "person" under state civil and
criminal law. Therefore, they were on notice that the
unlawful neglect statute encompassed the conduct for which
they were prosecuted.
The Respondent first notes that both Petitioners pled
guilty. The voluntariness of their guilty plea is not the
subject of this petition for review.? Accordingly, the
Petitioners have waived any claim that they lacked notice
their conduct was prohibited by section 20-7-50. See
McCarthy v. United States, 394 U.S. 459, 466 (1969) ["[A]
guilty plea is an admission of all the elements of a formal
criminal charge...]. However, even if this Court determines
that the Petitioners’ constitutional arguments are proper,
certiorari review is not warranted.
This Court has held that the unforeseeable
enlargement of a criminal statute deprives a defendant due
process of law where she has no notice that her conduct was
criminal. See, e.g., Bouie v. City of Columbia, 378 U.S.
347 (1964). When the statutory language is clarified by
judicial interpretation, “due process bars courts from
applying a novel construction of a criminal statute to conduct
that neither the statute nor any prior judicial decision has
fairly disclosed to be within its scope." United States v.
Lanier, US. _,117§.Ce. 1219, 1225, 137 L.Bd.20
432, 443 (1997). The central inquiry "is whether the statute,
either standing alone or as construed, makes it reasonably
clear at the relevant time that the defendant's conduct was
criminal." Id.
This Court has recognized that a broadly worded
statute may encompass specific conduct without violating due
process notice requirements. "[G]eneral statements of the
law are not inherently incapable of giving fair and clear
warning, and in other instances a general constitutional rule
already identified in the decisional law may apply with
° At the state post-conviction relief hearing, Petitioner Whitner
alleged that her plea counsel was ineffective. The state supreme court
reversed the granting of relief on this ground. Whitner Il, Id., 492
S.E.2d at 784. Petitioner Whitner has not renewed this issue on writ of
certiorari to this Court.
14
obvious clarity to the specific conduct in question, even
though ‘the very action in question has [not] been held
unlawful.’" Lanier, Id., 117 S.Ct. at 1227, 137 L.Ed.2d at
446. Prior precedents of the state courts explaining the
meaning of a statute are appropriate in determining whether
the defendant had notice that her conduct was prohibited.
Cf. Wainwright v. Stone, 414 U.S. 21, 22-23 (1973).
Accordingly, in determining whether the Petitioners had
adequate notice that section 20-7-50 applied to their conduct,
this Court should consider the case law relied upon by the
state supreme court. See Whitner Il, Id., 492 S.E.2d at 779-
80.
In 1960, the state supreme court first held that a
viable fetus was a “person” under state law in Hall v.
Murphy, 236 S.C. 257, 113 S.E.2d 790 (1960). In that
case, the defendant was the driver of a car which collided
with a bus, causing his passenger to give birth prematurely.
The child died four hours later. The record showed that the
victim was a viable fetus." As the administrator of the
child’s estate, the plaintiff brought a survival action for
damages for the "pain and suffering" of the viable fetus.
Id., 236 S.C. at 259, 113 S.E.2d at 791.
On appeal, the defendant argued that a viable fetus
was not a “person” within the purview of the survival
statute"’ because a viable fetus was not a "separate being
10 This Court has ruled that a fetus is “viable” if “there is a
reasonable likelihood of the fetus’ sustained survival outside the womb,
with or without artificial support.” Colautti v. Franklin, 439 U.S. 379,
388 (1979).
Il 1952 S.C. Code § 10-209 then read as follows:
15
apart from the mother.” Whitner Il, Id., 492 S.E.2d at 780
[Explaining Hall}. After construing the statute, Justice
Oxner disagreed. Speaking for a unanimous court, Justice
Oxner stated that precluding a survival action for prenatal
injuries to a viable fetus was “unsound, illogical and unjust.”
Hall, 236 S.C. at 262, 113 S.E.2d at 793. The court
concluded, "We have no difficulty in concluding that a
foetus having reached that period of prenatal maturity where
it is capable of independent life apart from its mother is a
person and if such a child is injured, it may after birth
maintain an action for such injuries." /d., 236 S.C at 263,
113 S$.E.2d at 793. Importantly, the opinion noted with
approval that “the law recognizes the separate existence of
an unborn child for the purpose of protecting his property
rights and to protect him against criminal conduct."
(Emphasis added). /d., 236 S.C. at 262, 113 S.E.2d at 793,
quoting Amann v. Faidy, 415 Ill. 422, 114 N.E.2d 412
(1953).
The state supreme court next addressed the rights of
a viable fetus in the context of the wrongful death statute”
Causes of action for and in respect to any and all
injuries and trespasses to and upon real estate and any
and all injuries to the person or to personal property
shall survive both to and against the person or real
representative, as the case may be, of a deceased
person and the legal representative of an insolvent
person or defunct or insolvent corporation, any law or
rule to the contrary notwithstanding. (Emphasis
added). Now codified as S.C. CODE ANN. § 15-5-90
(1977).
'2 The pertinent part of 1962 S.C. Code § 10-1951 then read:
Whenever the death of a person shall be caused by the
wrongful act, neglect or default of another and the act,
neglect or default is such as would, if death had not
16
in Fowler v. Woodward, 244 S.C. 608, 138 S.E.2d 42
(1964). In that case, an automobile accident killed a woman
who was eight months pregnant. When the plaintiff filed
suit on behalf of the deceased infant’s estate, the defendant
moved to dismiss because there was no allegation that "the
infant ’was born alive and thereafter died as a result of the
actions and injuries alleged and complained of.’" Id., 244
S.C. at 611, 138 S.E.2d at 43. The state supreme court
disagreed.
Applying Hall, Justice Brailsford concluded that the
plain language of the wrongful death statute allowed an
action on behalf of the estate of a viable fetus:
Since a viable child is a person before
separation from the body of its mother and
since prenatal injuries tortiously inflicted on
such a child are actionable, it is apparent that
the complaint alleges such an ‘act, neglect or
default’ by the defendant, to the injury of the
child, as would have entitled to child ‘to
maintain an action and recover damages in
respect thereof... if death had not ensued.’
By the very terms of the statute, this is the
test of the right of an administrator to
maintain an action for wrongful death.
(Emphasis added). Fowler, 244 S.C. at 613,
138 S.E.2d at 45.
ensued, have entitled the party injured to maintain an
action and recover damages in respect thereof, the
person who would have been liable, if death had not
ensued, shall be liable to an action for damages,
notwithstanding the death of the person injured....
(Emphasis added). Now codified as S.C. CODE ANN.
§ 15-51-10 (1977).
17
Accordingly, the unanimous court rejected that argument
"that in the absence of a live birth, "no mghts vested,
supporting either a cause of action, or the appointment of an
administrator." Jd., 244 S.C. at 615, 138 S.E.2d at 45.
Consistent with Hall and Fowler, the state supreme
court logically concluded that a viable fetus was protected by
the criminal law of this state in State v. Horne, 282 S.C.
444, 319 S.E.2d 703 (1984). In that case, the defendant
stabbed his pregnant wife in the abdomen. During an
emergency caesarean section operation, the unborn child died
in the womb. The State charged the defendant with murder,
and the jury convicted him of voluntary manslaughter.
On appeal, the state supreme court held that the
language of the murder statute” allowed a prosecution for
the unlawful killing of a viable fetus. Acting Justice Shaw
noted that "It would be grossly inconsistent for us to
construe a viable fetus as a ‘person’ for the purposes of
imposing civil liability while refusing to give it a similar
classification in the criminal context." Horne, 282 S.C. at
447, 319 S.E.2d at 704.
After reviewing those precedents, the state supreme
court concluded that Petitioner Whitner had notice that her
unborn, viable fetus was a “child” protected by section 20-7-
50."* Under state law, “there is a basic presumption that
= State law defines murder as “the killing of any person with
malice aforethought, either express or implied." (Emphasis added).
S.C. CODE ANN. § 16-3-10 (1985).
‘4 The Petitioners state that the lower courts of this state have
“rejected the interpretation recently propounded by the South Carolina
Supreme Court, holding that such an interpretation is not consonant with
the ordinary understanding of the term ‘child."" PET. pp. 19-20. Again,
this statement is misleading. Obviously, a significant number of circuit
nei ii st NA YH SSIES SEE PS GEN eR ay SE
the legislature has knowledge of previous legislation as well
as of judicial decisions construing that legislation when later
statutes are enacted concerning related subjects." Whitner II,
Id., 492 S.E.2d at 779. As the state supreme court noted,
state law defines "child" as "a person under the age of
eighteen." S.C. Code Ann. § 20-7-30(1) (1985). See
Whitner Il, Id., 492 S.E.2d at 779. Accordingly, although
the legislature did not expressly state that a child in section
20-7-50 included a viable fetus, the ordinary meaning of
"person" under state law brings a viable fetus under its
purview. Therefore, based upon Hall, Fowler and Horne,
the Petitioners were on notice that their conduct violated the
statute."* Whitner Il, Id., 492 S.E.2d at 780.
This interpretation of the statute was fully with due
process guarantees. Unlike the defendants charged in Bouie,
the state supreme court’s interpretation of the statute was
fully consistent with prior precedents of this jurisdiction."
judges accepted the state supreme court's interpretation because they
accepted the guilty pleas of these and other defendants charged under the
Statutes.
“ The State did not prosecute the Petitioners for this crime based
upon either their status as cocaine addicts or pregnant women. See PET.
p. 21. Rather, based upon the prior precedents of the state supreme
court, the Petitioners were charged because their illegal use of cocaine
harmed viable fetuses with recognized civil rights in this state.
‘© The Petitioners claim they had no notice they could be
prosecuted because the earlier state law cases involved third parties who
harmed the viable fetus. PET. p. 21. This distinction is without
substance. First, none of the precedents made the distinction urged by
the Petitioners. Furthermore, this argument ignores the State’s vital
interest in the life and health of the viable fetus. See Maher v. Roe, 432
U.S. 464, 478 (1977). As this Court noted in Roe v. Wade:
19
See Id., 378 U.S. at 356 ["The interpretation given the
Statute by the South Carolina Supreme Court..., so clearly at
variance with the statutory language, has not the slightest
support in prior South Carolina decisions" ].
Furthermore, it is irrelevant that the unlawful neglect
Statute did not “enumerate” harm to a viable fetus as a
specific criminal act. PET. p. 18, quoting Bouie. “When
broad constitutional requirements have been *made specific
by... settled interpretations, willful violators ‘certainly are in
no position to say that they had no adequate notice that the
would be visited by punishment....°" Lanier, Id., 117 S.Ct.
at 1225-26, 137 L.Ed.2d at 443. Additionally, "When a
State statute has been construed to forbid identifiable conduct
so that ‘interpretation by [the state court] puts these words in
the statute as definitely as if it had been so amended by the
legislature,’ claims of impermissible vagueness must be
judged in that light." Stone, 414 U.S. at 22-23. As noted
above, the previous precedents of the state supreme court
gave the Petitioners ample notice that a viable fetus was a
“person” and therefore a “child” under the unlawful neglect
Statute. Therefore, although section 20-7-50 did not
proscribe fetal abuse in so many words, the application of
the statute to this set of facts did not violate due process.
With respect to the State's important and legitimate
interest in potential life, the “compelling” point is at
viability. This is so because the fetus then presumably
has the capability of meaningful life outside the
mother’s womb. State regulation protective of fetal life
after viability thus has both logical and biological
justifications. Jd., 410 U.S. 113, 163-64 (1973).
The state supreme court's interpretation of section 20-7-50 is consistent
with this recognition of the State's interest in protecting a viable fetus
from harm. Therefore, the application of the statute is entirely consistent
with prior precedents recognizing the civil rights of the unborn.
20
See Rose v. Locke, 423 U.S. 48, 51 (1975). Therefore, this
Court should reject this ground for certiorari review.
C. The application of the statute
to other conduct plainly
hazardous to the health and
safety of a viable fetus does
not render it impermissibly
vague as applied to Petitioner
Whitner.
The Petitioners urge this Court to issue its writ of
certiorari because Whitner II's construction of section 20-7-
50 does not give notice of all possible parameters of criminal
conduct. They assert that the statute could extend to other
activities which are lawful, yet endanger the health or safety
of a viable fetus. PET. pp. 22-26. They further argue that
the interpretation of the statute is impermissibly vague
because it gives the State unbridled discretion in determining
which conduct to prosecute. PET. p. 28. These arguments
do not warrant certiorari review."’
'7 In an unrelated argument, the Petitioners argues that the statute
itself violates due process because it defines simple negligence as the
necessary mens rea for the offense. PET. pp.26-27. See State v.
Jenkins, 278 S.C. 219, 294 S.E.2d 44 (1982) [Mens rea for violation of
section 20-7-50 is simple negligence]. The Petitioners have never raised
this argument as a grounds for reversing her conviction in any forum in
this state, and did not argue the issue in the state supreme court.
Therefore, the issue is not properly before this Court. Raley v. Ohio,
360 U.S. 423, 434-35 (1959).
Even if this argument was properly before this Court, it must
fail. “{TJhis Court has never articulated a general constitutional doctrine
of mens rea.” Powell v. Texas, 392 U.S. 514, 535 (1968).
Accordingly, the process of defining the mens rea of an offense is
uniquely within the province of the state legislatures. Jd. at 536.
Furthermore, this Court has emphasized that it will read a requirement
21
The Petitioners argue that the state supreme court's
interpretation of section 20-7-50 extends to "the entire
universe of a pregnant woman’s behavior[,]" including their
failure to obtain proper prenatal care. PET. pp. 25-26. The
State supreme court expressly declined to address this
"parade of horribles" of possible applications of the statute.
Whitner Il, Id., 492 S.E.2d at 782. The sole question before
the state supreme court and this Court is whether the State
may prosecute this defendant for harm to a viable fetus from
an admittedly unlawful act - the possession and use of crack
cocaine. The Petitioners’ argument effectively invites this
Court "to pass upon the constitutional validity of a state
statute which has not yet been applied or threatened to be
applied by the state courts to petitioners or others in the
manner anticipated." Webster v. Reproductive Health
Services, 492 U.S. 490, 506 (1989), quoting Alabama State
Federation of Labor v. McAdory, 325 U.S. 450 (1945).
This Court has emphasized that "Claims based merely
upon ‘assumed potential invasions’ of rights are not enough
to warrant judicial intervention." Ashwander v. Tennessee
Valley Authority, 297 U.S. 288, 324-25 (1936). Likewise,
"Determination of the scope and constitutionality of
legislation in advance of its immediate adverse effect in the
context of a concrete case involves too remote and abstract
an inquiry for the proper exercise of the judicial function.”
Int'l Longshoremen’s and Warehousemen’s Union v. Boyd,
of criminal intent in a statute only where it is silent. Staples v. United
States, 511 U.S. 600, 605-6 (1994). Accordingly, this Court will not
construe a statute to allow a prosecution for conduct without purpose or
knowledge, unless the legislature implicitly or explicitly intended that
result. /d., 511 U.S. at 606. In this case, well before the State charged
the Petitioners for harming their unborn children, they were on notice
that the mens rea of the offense was simple negligence. Jenkins, Id.
22
347 U.S. 222, 224 (1954). This Court should not review the
a hypothetical application of the statute, when the
Petitioners’ cases comes squarely within its parameters."
"[T}his Court ‘is not empowered to decide... abstract
propositions, or to declare, for the government of future
cases, principles or rules which cannot affect the result as to
the thing in issue in the case before it.’"" Webster, 492 U.S.
at 507, quoting Tyler v. Judges of Court of Registration, \79
U.S. 405 (1900). Therefore, this Court should not issue its
writ of certiorari to review potential prosecutions that may
never Occur.
Furthermore, "It is well established that vagueness
challenges to statutes which do not involve First Amendment
freedoms must be examined in the light of the facts of the
case at hand." United States v. Mazurie, 419 U.S. 544, 550
(1975). In this case, the Petitioners pled guilty and thereby
admitted that they harmed their children when they used
crack cocaine during their pregnancies. As noted above, the
voluntariness of the guilty plea is not an issue before this
Court. Therefore, the Petitioners lack standing to raise this
argument. “[OJne who has received fair warning of the
criminality of his own conduct from the statute in question
is [not] entitled to attack it because the language would not
18 Petitioner Whitner and potential amici dispute whether prenatal
exposure to crack cocaine harms the developing or viable fetus. See
PET. p. 20, n. 19. As the state supreme court noted, “Although the
precise effects of maternal crack use during pregnancy are somewhat
unclear, it is well documented and within the realm of public knowledge
that such use can cause serious harm to the viable unborn child.”
Whitner Il, Id., 492 S.E.2d at 782 (citing medical authorities).
Additionally, Petitioner Whitner's argument concerns causation and the
State’s burden of proof in a prosecution, not whether the State can
prosecute her for unlawful neglect based upon admittedly illegal conduct.
In any event, Petitioner Whitner pled guilty, and thereby waived any
challenge to the sufficiency of the State's evidence.
23
give similar fair warning with respect to other conduct which
might be within its broad and literal ambit." Parker v.
Levy,417 U.S. 733, 756 (1974). Accordingly, "One to
whose conduct a statute clearly applies may not
successfully challenge it for vagueness." (Emphasis
added). Jd.
Finally, if other conduct harmful to the viable fetus
comes within the ambit of section 20-7-50, there is no
constitutional barrier to prosecutions for that conduct. Roe
v. Wade clearly recognized the State’s undeniable interest in
protecting the health and safety of a viable fetus as a
potential life in being. The requirement that the State prove
each element of the offense beyond a reasonable doubt
avoids any possible danger that a woman would be convicted
for arguably innocent conduct. Under the facts of this case,
nothing should prevent the State from prosecuting when a
child is born suffering from drug withdrawal symptoms and
the mother admits to using drugs during her pregnancy.
Under Whitner Il, the burden falls squarely on the
State to prove that the fetus was viable. Section 20-7-50
further requires proof of willful conduct or negligence,
which contemplates a showing that the actor’s conduct or
omission was unreasonable." This requirement also
imposes the burden upon the State to prove that the potential
harm to the viable fetus was foreseeable. See Boyleston v.
Southern Railway Co., 211 S.C. 232, 44 §.E.2d 537 (1947)
["Negligence carries with it liability for consequences which,
in the light of attendant circumstances, could reasonably
have been anticipated by a prudent man, but not for injuries
which, though possible, were wholly improbable").
9 Asa corollary to this requirement, the State must also prove that
the mother knew or should have known that her fetus was viable at the
time she exposed him or her to dangerous drugs.
4
Furthermore, the refusal to provide care must be legally
inexcusable.”
Lastly, since the statute only punishes conduct for
which the viable fetus "is endangered or likely to be
endangered," the State must prove that the defendant's
conduct was the proximate cause of any injuries. "The
questions of causation, reasonable certainty, etc.., which will
arise in these cases are no different, in kind, from the ones
which have arisen in thousands of other negligence cases
decided in this State, in the past." Hall, 236 S.C. at 262,
113 S.E.2d at 793. Accordingly, the State’s burden of
proving negligence, proximate causation and harm to the
fetus beyond a reasonable doubt minimizes the danger that
a mother would be unjustly convicted. This Court should
not grant the Petitioners’ request for certiorari review of this
issue.
D. Petitioner Crawiey’s failure
to timely raise her federal
constitutional claims has
defaulted these issues for
certiorari review in this
Court.
Petitioner Crawley contends that she included her
petition for writ of certiorari with Petitioner Whitner’s case
"because the two judgments raise identical questions...."
PET. p. 1, n. 1. This contention is factually and legally
incorrect because Petitioner Crawley defaulted any federal
constitutional claims in the Supreme Court of South
Carolina.
20 This requirement minimizes the danger of prosecution of
pregnant women who undergo life saving medical treatment that may
harm the viable fetus, such as chemotherapy.
25
"This Court will not review a question of federal law
decided by a state court if the decision of that court rests on
a state law ground that is independent of the federal question
and adequate to support the judgment." Coleman vy.
Thompson, 501 U.S. 722, 729 (1991). This rule applies
regardless of whether the state law ground is procedural or
substantive. /d., 501 U.S. at 729. Conversely, this Court
lacks jurisdiction to consider a federal constitutional claim
where the petitioner did not preserve or properly present the
issue in the state court. Wainwright v. Sikes, 433 U.S. 72
(1977); Teague v. Lane, 489 U.S. 288 (1989); Coleman, 501
U.S. at 729-30.
As shown above, Petitioner Crawley’s state habeas
case only addressed the subject matter jurisdiction of the
sentencing court. She claimed that section 20-7-50 did not
apply to the conduct for which she pleaded guilty. The
order vacating Petitioner Crawley’s conviction only
addresses the jurisdiction of the circuit court. None of the
constitutional claims addressed in the present petition for
writ of certiorari were raised, argued or ruled upon in
Petitioner Crawley’s state habeas proceeding. Accordingly,
under South Carolina law, even if Petitioner Crawley
attempted to raise these issues on direct review, she did not
preserve her claims for consideration by the state supreme
court. See Evans v. Manning, 217 S.C. 10, 59 S.E.2d 341,
cert. denied 340 U.S. 851 (1950).”"
21 In Evans, the petitioner received habeas corpus relief on the
ground that the governor granted him a “leave of absence.” On direct
appeal, the petitioner raised an additional sustaining ground for habeas
corpus relief. In reversing the order granting relief, the South Carolina
Supreme Court refused to consider the additional sustaining ground
“since it was not raised in the lower court." 217 S.C. at 16, 59 S.E.2d
at 343.
26
This Court lacks jurisdiction to consider Petitioner
Crawley’s arguments unless the state supreme court's
judgment appeared "to rest primarily on federal law, or to be
interwoven with the federal law, and when the adequacy and
independence of any possible state law ground is not clear
from the face of the opinion...." Michigan v. Long, 463
U.S. 1032, 1040-41 (1983). In this case, Judge Eppes’
order states that Petitioner Crawley alleged her conviction
was “in violation of the due process clause...." However,
the order granting state habeas relief eliminated any possible
ambiguity when Judge Eppes stated that "The sole question
for the court is whether the petitioner pled guilty to a crime
that does not exist in South Carolina." (Emphasis added).
Accordingly, the order plainly rests upon state law grounds
concerning the jurisdiction of the trial court.
Since Petitioner Crawley did not raise any federal
constitutional claims in her state habeas petition, those issues
were not properly before the state supreme court. Evans, Id.
The memorandum opinion reinstating the convictions does
not expressly state that the state supreme court considered
the federal constitutional claims; it simply cites Whitner Il
and the statute. However, this Court should not presume
that the state supreme court considered the merits of the
federal constitutional issues or declined to apply its
procedural bar.
Even without a plain statement that the state supreme
court relied upon state law grounds or procedural default in
its judgment, there is no presumption that it considered the
claims raised in the present petition. Cf. Yist v.
Nunnamaker, 501 U.S. 797 (1991) [Where last reasoned
opinion rested on or was interwoven with federal law,
federal court will presume that subsequent unexplained order
did not invoke procedural bar]. Both Whitner 1 and Il
addressed the state law jurisdictional issue which supported
27
the relief in Petitioner Crawley’s habeas case. As noted
above, the State expressly relied upon the Petitioner's
procedural default in addressing her federal constitutional
claims in the state supreme court. Accordingly, based upon
Petitioner Crawley’s procedural default, the state court could
reverse the order granting collateral relief on state law
grounds without reaching the merits of her federal
constitutional claims. Therefore, this Court should not grant
certiorari review on the dubious assumption that the state
court considered the arguments in the present petition. As
this Court has noted,
In those cases in which it does not fairly
appear that the state court rested its decision
primarily on federal grounds, it is simply not
true that the "most reasonable explanation” is
that the state judgment rested on federal
grounds. (c.o.). Yet [petitioner] would have
the federal courts apply a_ conclusive
presumption of no independent and adequate
State grounds in every case in which a state
prisoner presented his federal claims to a state
court, regardless of whether it fairly appears
that the state court addressed those claims.
We cannot accept such a rule, for it would
greatly and unacceptably expand the risk that
federal courts will review the federal claims
of prisoners in custody pursuant to judgments
resting on independent and adequate state
grounds. Coleman, 501 U.S. at 737-38.
Since Petitioner Crawley has not preserved her
federal constitutional claims, and the judgment below rests
upon adequate and independent state law grounds, this Court
lacks subject matter jurisdiction to review her case.
Michigan v. Long, Id.; Coleman, Id. Therefore, this Court
28
should dismiss Petitioner Crawley as a party to this petition
for writ of certiorari.
e
CONCLUSION
For all of the foregoing reasons, this Court should
decline discretionary review in this case.
Respectfully submitted,
CHARLES M. CONDON
Attorney General
JOHN W. McINTOSH
Chief Deputy Attorney General
* DONALD J. ZELENKA
Assistant Deputy Attorney General
and Counsel of Record
DAVID K. AVANT
Assistant Deputy Attorney General
G. ROBERT DELOACH, III
Assistant Attorney General
P.O. Box 11549
Columbia, $.C. 29211
(803) 734-3970
Attorneys for the Respondents
29
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.