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2008-UP-498 - Graham v. State

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Eric A. Graham, Appellant,

v.

State, Respondent.


Appeal from Darlington County
 Paul M. Burch, Circuit Court Judge


Unpublished Opinion No.  2008-UP-498
Submitted September 2, 2008 – Filed September 5, 2008


AFFIRMED


Eric A. Graham, pro se Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Karen C. Ratigan, Office of the Attorney General, of Columbia for Respondent.

PER CURIAM:  Eric A. Graham appeals the dismissal of his petition for writ of habeas corpus.  We affirm.[1]

FACTS AND PROCEDURAL HISTORY

Graham was convicted of murder and sentenced to life in prison by Judge Paul M. Burch in August of 1998.  An Anders appeal was filed and dismissed.  Graham then filed an application for post-conviction relief, and that application was dismissed.  His subsequent writ of certiorari to the South Carolina Supreme Court was denied.  Graham filed another application for post-conviction relief which was also dismissed.  Graham then filed a petition for writ of habeas corpus which was dismissed by Judge Burch acting in his capacity as chief administrative judge.

Graham appeals the dismissal of his petition for writ of habeas corpus.  The focus of his appeal is on Judge Burch’s failure to recuse himself from ruling on the petition as he was the presiding judge at his trial.  Graham also argues in a very cursory fashion that his petition is meritorious.  

LAW/ANALYSIS

Graham contends Judge Burch was required to recuse himself from considering the dismissal of his petition for writ of habeas corpus because of his prior involvement with Graham’s case.  We disagree. 

Canon 3(E)(1) of the Code of Judicial Conduct, Rule 501, South Carolina Appellate Court Rules, provides that “[a] judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”  This includes instances where “the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding.”  Code of Judicial Conduct, Canon 3(E)(1)(a), CJC, Rule 501, SCACR.  However, the standard for establishing such prejudice is high.

The alleged bias must stem from an extrajudicial source and result in a decision based on other than what the judge learned from his participation in the case. It is not enough for a party to allege bias; a party seeking disqualification of a judge must show some evidence of bias or prejudice. When no evidence is presented other than claimed “adverse” rulings by the judge, the judge is not required to recuse himself.

Reading v. Ball, 291 S.C. 492, 494, 354 S.E.2d 397, 398 (Ct. App. 1987) (citations omitted). 

In the instant case, Graham has failed to put forth any evidence that calls Judge Burch’s impartiality into question.  Furthermore, Judge Burch was only acting in his capacity as chief administrative judge when he dismissed Graham’s Petition.  Judge Burch performed a ministerial function dismissing the case on procedural grounds because of Graham’s filing the petition in circuit court as opposed to the original jurisdiction of the South Carolina Supreme Court.  See Keeler v. Mauney, 330 S.C. 568, 571, 500 S.E.2d 123, 124 (Ct. App. 1998) (“A person is procedurally barred from petitioning the circuit court for a writ of habeas corpus where the matter alleged is one which could have been raised in a PCR application.   Furthermore, if a person is procedurally barred, his only means of obtaining state habeas corpus relief is to file a petition in the original jurisdiction of the Supreme Court.”).                                                                                             

Because there is no evidence of bias on the part of Judge Burch or prejudice to Graham, the dismissal of Graham’s petition is

AFFIRMED.

ANDERSON, WILLIAMS, and KONDUROS, JJ., concur. 


[1]  This case was decided without oral argument pursuant to SCACR 215.