Kevin F. McDonald, United States Magistrate Judge

REPORT OF MAGISTRATE JUDGE

Kevin F. McDonald, United States Magistrate Judge

The petitioner, a state prisoner who is represented by counsel, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the district court.

BACKGROUND

The petitioner is currently incarcerated at Lieber Correctional Institution in the South Carolina Department of Corrections ("SCDC") (doc. 1 at 1). In September 2012, the petitioner was indicted by the Charleston County Grand Jury for murder (2012-GS-10-5449) and possession of a weapon during the commission of a violent crime (2012-GS-10-5452) (doc. 12-4 at 25-28). On September 9, 2013, the petitioner proceeded to trial before the Honorable J.C. Nicholson, Jr. (doc. 12-2 at 217). However, Judge Nicholson declared a mistrial based on the defense's opening statement (doc. 12-3 at 113-26). The petitioner then proceeded to trial again on January 6, 2014, before the Honorable Roger M. Young, Sr. (doc. 12-1 at 3). Jason King ("Mr. King") and Luke Malloy, III ("Mr. Malloy") (collectively "trial counsel") represented the petitioner, and Stephanie Linder and Gregory Voigt represented the State (id.). The jury convicted the petitioner of both charges (doc. 12-2 at 206-10). Judge Young sentenced the petitioner to life imprisonment without the possibility of parole for murder and did not impose a sentence for possession of a weapon during the commission of a violent crime (id. at 214).

Underlying Case Facts

According to the State, on October 27, 2011, Solomon Chisolm (“Mr. Chisolm”) was shot at approximately 6:45 p.m. while playing cards on a set of bleachers in Mall Park in Charleston, South Carolina (doc. 12-1 at 179-180, 183-85). Mr. Chisolm was shot five times - twice in the back, once in the neck, once in the forehead, and once in the abdomen (doc. 12-2 at 39-40).

Officer Jeremy Davidson (“Officer Davidson”) testified that he saw the petitioner walk from the park toward Columbus Street at 6:27 p.m. (doc. 12-1 at 239). The petitioner was wearing a black t-shirt and jeans (id. at 240).

Officer Quevas Gamble (“Officer Gamble”) testified that, on this date, he heard five gunshots coming from around the Mall Park area (doc. 12-1 at 118-19). Officer Gamble immediately started sprinting toward that location to investigate (id. at 119). He testified that as he was running toward Mall Park, he heard people screaming and shouting and saw children running outside of the park and "young juveniles hopping over the fences" (id.). Moreover, Officer Gamble testified that he "saw some males running west out of the Mall Park area . . . wearing hoodies . . . running toward Columbus Street . . ." (id.). He called in to advise that he saw the males running out of the area (id.). Officer Gamble testified that he then saw Raymond Clement (“Mr. Clement”) yelling, screaming, crying, and asking for help (id. at 119-20). Mr. Clement was standing next to a body on the bleachers and told Officer Gamble that the person had been shot (id.).

Officer Shaun Irisley (“Officer Irisley”) testified that he heard the report of shots fired and that three black males were running toward Columbus Street (doc. 12-1 at 132-33). Officer Irisley testified that he stopped three people in the area: Waukeem Madison (“Mr. Madison”), Dominique Montgomery (“Mr. Montgomery”), and Lavar Anderson (“Mr. Anderson”) (id. at 133). Officer Irisley asked for consent to search their persons, and they consented (id.). Officer Irisley did not find any contraband or weapons on them, but he did notice "playing cards on the sidewalk” near Mr. Anderson's feet (id.).

Mr. Clement testified that he had just finished playing basketball at Mall Park when Mr. Chisolm, his half-brother, approached and asked if he wanted to play cards (doc. 12-1 at 180). He testified that he and Mr. Chisolm, along with Mr. Anderson and Britney Anderson (“Ms. Anderson”) began to play cards on the bleachers (id.). Mr. Clement testified that the petitioner subsequently "came and started shooting," at which point Mr. Clement ran (id. at 183). He testified that the shooter was ”[b]rown skin, tall, slim" and was wearing a black t-shirt, jeans, and a shirt pulled up over his head (id. at 184). During this incident, Mr. Clement was shot in the leg (id.). Mr. Clement testified that he then saw the petitioner approach a white Crown Victoria automobile (id. at 185). Mr. Clement testified that before the petitioner entered the vehicle, the petitioner "looked at [him] and shook his head like: Yeah, I did that" (id.). According to Mr. Clement, the shirt that had been over the petitioner's head was pulled down at that moment (id.). He testified that the petitioner then drove away (id.). Mr. Clement testified that he went back to the bleachers and found Mr. Chisolm (id.). At that point, officers were already approaching (id.). Mr. Clement testified that he was hysterical and frantic, did not want to get involved at first, and "didn't want to talk, because [he] didn't want to be putting [his] family or nobody in danger by identifying no one, anything like that" (id. at 186).

Although he did not originally want to be involved and did not tell the police the whole truth the first time he talked with them, Mr. Clement testified that he subsequently spoke with officers and identified the petitioner by a photo lineup (doc. 12-1 at 189-91). He testified that he also advised officers that the petitioner had shot him in the leg (id. at 191). Mr. Clement testified that the petitioner was a friend of Mr. Chisolm (id. at 192). Moreover, he testified that he had known the petitioner since 2006 and would see the petitioner four or five times per week (id.). Mr. Clement testified that he was contacted several times by the petitioner's family members and friends following the shooting, including the petitioner's mother, Stacy Montgomery (“Ms. Montgomery”) and brother, Adrienne Collins (“Mr. Adrienne Collins”) (id. at 192-94). Further, Mr. Clement testified that the petitioner directly contacted him on a three-way call facilitated by Ms. Montgomery (id. at 194). Mr. Clement testified that after he told the police the truth, he wrote a statement contradicting what he told the police, because the petitioner and his family instructed him to complete a signed statement indicating that he did not see anything (id. at 195). Ms. Montgomery and Mr. Adrienne Collins picked up Mr. Clement and took him to the library to complete the statement, and he wrote what the petitioner wanted (id. at 195-96). At trial, Mr. Clement identified several recorded calls from the jail (id. at 196-97). Mr. Clement recounted part of his phone call with the petitioner talking about the shooting (id. at 198-99). When Mr. Clement mentioned to the petitioner that the petitioner should not have done the shooting "like that," and complained that the petitioner also shot him, the petitioner stated, "that was foul, man, that was foul; whatever" (id. at 199).

Officer David Osborne (“Officer Osborne”) testified that he responded to the scene and conducted interviews (doc. 12-2 at 94-96). He testified that he learned that there were three people on the bleachers with Mr. Chisolm, that Mr. Chisolm's vehicle was still at the scene, and that Mr. Chisolm's phone was in the vehicle (id. at 95). As a result of his investigation, Officer Osborne was able to develop the petitioner as a suspect and applied for an arrest warrant (id. at 96). After the petitioner was arrested, investigators sought a search warrant for an apartment (id. at 97). They were to search for a "dark t-shirt," weapons, ammunition, accessories, or "anything that might help” in the investigation (id. at 98). A black t-shirt was recovered, as well as paperwork with the petitioner's name on it in the same room as the t-shirt (id. at 98, 115-16). Officer Osborne recounted how Mr. Clement made an identification from a photo array (id. at 99-100). He further recounted how Mr. Clement had reported being shot himself, at which time Officer Osborne photographed the injury and secured the pants that Mr. Clement was wearing when he was shot (id. at 100-01).

Michael Sherman (“Investigator Sherman”), a crime scene investigator, testified that he was called out to the scene and arrived shortly after 7:00 p.m. (doc. 12-1 at 137-38, 140). Investigator Sherman testified that five fired shell casings were recovered at the scene (id. at 152-53). He also identified the fired projectiles that were recovered from the autopsy (id. at 149). Investigator Sherman also testified that he recovered evidence from a search of an apartment (id. at 156). He testified a black t-shirt was seized as a result of the search (id. at 156-57). Further, he testified that fingerprints were lifted from the bleachers where the murder occurred that matched to Mr. Anderson and that fingerprints were also lifted from the playing cards that matched to Mr. Chisolm (id. at 169).

Agent Suzanne Cromer (“Agent Cromer”), a firearm and tool mark examiner with the South Carolina Law Enforcement Division (“SLED”), testified that all of the cartridges recovered from the scene were fired by one weapon and all of the bullets from the autopsy were fired by one weapon (doc. 12-2 at 46-47, 51-53). The cartridges and bullets were fired by a 9 mm Macarov, but Agent Cromer could not say that they were fired by the same 9 mm Macarov (id. at 54).

Agent Ila Simmons (“Agent Simmons”), a SLED expert in trace evidence and gunshot residue, testified that Mr. Chisolm had particles on his hands that were “characteristic of” and “consistent with” gunshot residue (doc. 12-2 at 61, 70-71). Agent Simmons testified that such material could be consistent with being shot in close proximity to the weapon (id. at 72-73). Agent Simmons noted fewer particles on Mr. Montgomery's and Mr. Madison's hands and none on Mr. Anderson's hands (id. at 74-76). Agent Simmons testified that the t-shirt similarly had particles consistent with gunshot residue but did not reflect all three elements fused together in rounded particles that could be identified as gunshot residue (id. at 76-80).

Direct Appeal

Susan Hackett ("Ms. Hackett") represented the petitioner on appeal, and on

May 26, 2015, she filed a brief raising the following grounds:

I. Did the trial judge err in limiting the introduction of evidence of the deceased's reputation in the community where the evidence was necessary to Appellant's presentation of a complete defense and where the prosecutor opened the door to such evidence during his opening statement?

II. Was Appellant's second trial barred by double jeopardy where the grant of the mistrial during defense counsel's opening statement at the first trial was not dictated by manifest necessity or the ends of public justice after consideration of all the facts and circumstances?

I. Did the Court of Appeals err in affirming the trial judge's erroneous limitation on the introduction of evidence of the deceased's reputation in the community where the evidence was necessary to Petitioner's presentation of a complete defense and where the prosecutor opened the door to such evidence during his opening statement?

II. Did the Court of Appeals err in concluding Petitioner's second trial was not barred by double jeopardy where the grant of the mistrial during defense counsel's opening statement at the first trial was not dictated by manifest necessity or the ends of public justice after consideration of all the facts and circumstances?

PCR

The petitioner filed a pro se post-conviction relief ("PCR") application on February 7, 2018 alleging the following grounds for relief:

1. See attached pages for grounds[.] Ineffective Assistance of Counsel - The Applicant received ineffective assistance of counsel prior to and during his trial in violation of his 6th and 14th Amendment rights and Article I, §§ 3 & 14 of the South Carolina Constitution

a. See attached pages for facts[.] Counsel failed to provide Applicant effective assistance of counsel prior to and during his trial proceeding. Insomuch as counsel failed to recognize errors which occurred during his trial, and therefore failed to make appropriate objections, and supporting legal arguments relating thereto counsel's -had counsel made these objections may have changed the outcome of the trial and deprived Applicant review on direct appeal.

10(a) The Applicant received ineffective assistance of counsel prior to and during his trial in violation of his rights pursuant to the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 3 and 14 of the South Carolina Constitution.

(i) Ineffective assistance of counsel for failing to object when potential jurors were allowed to announce in open court their experiences with violent crime.

(ii) Trial counsel provided ineffective assistance in derogation of Petitioner's Sixth and Fourteenth Amendment rights of the United States Constitution by failing to object to the solicitor's erroneous and improper legal arguments in the State's opening statement and failed to object to the solicitor's closing argument which addressed matters not in evidence or which were calculated to appeal to the passions and prejudices of the jury.

(iii) Trial counsel was ineffective for failing to consult with or retain an expert in GSR ("Gunshot Residue") to assist in questioning State's witnesses or expert and to assist the jurors in comprehending the evidence or, as in this case lack of evidence.

(iv) Trial counsel was ineffective for f[ai]ling to object to the trial judge's comments during sentencing of the petitioner.

(v) Trial counsel was ineffective for failing to request that the trial court charge the law relative to alibi in that there was evidence tending to show that Petitioner was not present when the murder occurred. State v. Bealin, 23 S.E.2d 746 (1943).

(vi) Trial counsel was ineffective for failing to investigate a potential alibi of the Petitioner.

(vii) Trial counsel was ineffective for failing to have tests performed on pants that Raymond Clement claimed that Petitioner shot him in the leg for blood evidence, DNA evidence and examined to determine whether it was a bullet hole.

(viii) Trial counsel was ineffective for failing to consult with or retain an expert in street slang so that he could effectively question (cross-examine) Mr. Raymond Clement concerning his talk(s) with Petitioner on phone from the detention center.

An evidentiary hearing was held on July 23, 2019, before the Honorable Michael G. Nettles (doc. 12-3 at 158-263). The petitioner was present at the hearing and represented by James Faulk ("PCR counsel") (id. at 158). The State was represented by Jacob Isenberg and Benjamin Limbaugh (id.). The petitioner testified on his own behalf (id. at 215-39). Additionally, Mr. King, Algernard Young (“Mr. Young”), and Ms. Montgomerytestified (id. at 169-214, 234-45). By written order filed on October 1, 2019, the PCR court denied and dismissed the petitioner's PCR application with prejudice, finding that the petitioner failed to establish any constitutional violations or deprivations that would require the court to grant his application (id. at 264-66; doc. 12-4 at 1-24).

PCR Appeal

The petitioner, represented by David Alexander ("PCR appellant counsel"), appealed the PCR court's decision and filed a Johnson petition for writ of certiorari before the Supreme Court of South Carolina on June 26, 2020, presenting the following issue:

Whether trial counsel's failure to object to irrelevant comments about race and petitioner's neighborhood made by the solicitor during his opening statement deprived petitioner of his Sixth Amendment right to the effective assistance of counsel?

Federal Petition

On March 2, 2022, the petitioner, represented by counsel, filed the instant § 2254 petition, raising the following ground for relief:

GROUND ONE: Collins was denied the right to the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution when trial counsel failed to adequately investigate and/or call alibi witnesses at trial.

SUPPORTING FACTS: Collins's trial counsel was ineffective in failing to investigate and/or call alibi witnesses to testify at trial. At trial, the State argued that Collins shot and killed the victim at a park in Charleston, South Carolina, located near the intersection of Aiken Street & Columbus Street, at approximately 6:45 p.m. on October 27, 2011. Prior to trial,

Collins informed his trial counsel that he attended a wake and/or memorial service for Verdelis [Gilliard (“Mr. Gilliard”)], which was held between 6:00 p.m. and 8:00 p.m. at the Faith Tabernacle Church of Zion, located at 5667 Dorchester Road, North Charleston, SC, on the night of the shooting. Nonetheless, Collins's trial counsel was deficient and/or ineffective in failing to properly investigate potential alibi witnesses and in failing to call any alibi witnesses to testify at trial. As a direct result, Collins suffered substantial prejudice, in that he was convicted and sentenced to Life Without Parole in connection to the above-referenced charges.

...

APPLICABLE LAW AND ANALYSIS

Summary Judgment Standard

Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.

Exhaustion and Timeliness

The respondent acknowledges that the petitioner has technically exhausted his state court remedies and that the petition is timely (doc. 12 at 6, 9).

New Evidence

In support of his ineffective assistance of trial counsel claim, the petitioner has presented affidavits that were not part of the state court record, one from himself and four from alibi witnesses who claim that they were at a wake with the petitioner at or around the time of Mr. Chisolm's murder (docs. 17-1, Collins aff.; 17-2, Conyers aff.; 17-3, Young aff.; 17-4, Bradley aff.; 18-1, Huger aff.). The petitioner appears to argue that the undersigned should consider these new affidavits on federal habeas review because they fundamentally alter his ineffective assistance of trial counsel claim into a new, unexhausted claim that should be considered pursuant to Martinez and he was not at fault in failing to develop the state court record under § 2254(e)(2) (docs. 17 at 23-27; 26 at 1-2; 27 at 2-6).

"[O]nly rarely may a federal habeas court hear a claim or consider evidence that a prisoner did not previously present to the state courts in compliance with state procedural rules." Shinn v. Ramirez, 142 S.Ct. 1718, 1730 (2022); see Williams v. Taylor ("Michael Williams"), 529 U.S. 420, 437 (2000) ("Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings."). "From the beginning of our country, criminal law enforcement has been primarily a responsibility of the States." Shinn, 142 S.Ct. at 1730 (citation and internal quotation marks omitted). "Because federal habeas review overrides the States' core power to enforce criminal law, it intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority." Id. at 1731 (citation and internal quotation marks omitted). Accordingly, Congress has imposed limits on habeas relief to ensure that federal habeas corpus retains its narrow role, including 28 U.S.C. § 2254(d) and § 2254(e)(2). See id. at 1731-1734; Cullen v. Pinholster, 563 U.S. 170, 186 (2011).

Section 2254(d) prevents federal courts from granting habeas relief on "any claim that was adjudicated on the merits in the State court proceedings," unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d) (emphasis added). Based on the plain language of the statute, review under § 2254(d) is limited to claims that were adjudicated on the merits in state court. See id. Further, the Supreme Court of the United States has held that review under § 2254(d) is limited to the record that was before the state court. Pinholster, 563 U.S. at 181-82, 185 n.7. In contrast, § 2254(e)(2)'s stringent standard regarding the grant of an evidentiary hearing or the consideration of new evidence has force where § 2254(d) does not apply. Id. at 185-86. For example, § 2254(e)(2) may govern the consideration of new evidence on a claim that was not adjudicated on the merits in state court and is therefore procedurally defaulted but the default is excused for some reason, such as under Martinez v. Ryan, 566 U.S. 1, 9 (2012). Section 2254(e)(2) provides that if a petitioner has "failed to develop the factual basis of a claim in State court proceedings," he must satisfy one of two narrow exceptions to expand the state court record: either the claim must rely on (1) "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable" or (2) "a factual predicate that could not have been previously discovered through the exercise of due diligence." 28 U.S.C. § 2254(e)(2)(A)(i)-(ii). Also, the petitioner must demonstrate that "the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the [petitioner] guilty of the underlying offense." Id. § 2254(e)(2)(B).

"Whether a claim has been adjudicated on the merits is a case-specific inquiry[.]" Winston v. Pearson ("Winston II"), 683 F.3d 489, 496 (4th Cir. 2012). "When a federal claim has been presented to a state court and the state court has denied relief," courts "presume[ ] that the state court adjudicated this claim on the merits." Valentino v. Clarke, 972 F.3d 560, 576 (4th Cir. 2020) (citation and internal quotation marks omitted). The petitioner bears the burden of overcoming this "strong but rebuttable" presumption. Id. (citation omitted). The Court of Appeals for the Fourth Circuit has "consistently recognized that even a perfunctory state court decision constitutes an adjudication 'on the merits' for purposes of federal habeas review." Barnabei v. Angelone, 214 F.3d 463, 469 (4th Cir. 2000) (citations omitted), abrogated on other grounds by Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000); compare Bowman v. Stirling, C/A No. 20-12, 2022 WL 3363932, at *10 (4th Cir. Aug. 16, 2022) ("If the state court did not resolve the merits of a properly presented federal claim, then there is no decision to which we can defer and we review the question de novo.") (citations omitted).

Nevertheless, new evidence presented to a federal habeas court may fundamentally alter a claim that was adjudicated on the merits in state court such that it becomes a new, unexhausted claim. The Fourth Circuit has explained that “[n]ew evidence in a federal habeas matter fundamentally alters a claim in the limited situation where the petitioner did not offer any evidence to the state court supporting the existence of a material fact." Mahdi v. Stirling, 20 F.4th 846, 899 (4th Cir. 2021) (citing Winston v. Kelly (" Winston I "), 592 F.3d 535, 550 (4th Cir. 2010) ("Suppose, for example, that a petitioner on federal habeas introduces new evidence to establish the existence of fact X, a fact required to prove his claim. The claim will inevitably be stronger, regardless of the evidence the petitioner presented to the state courts. However, if the petitioner presented no evidence to the state courts to establish the existence of fact X, the claim will be fundamentally altered by the new evidence presented to the district court.")); see Wise v. Warden, Md. Penitentiary, 839 F.2d 1030, 1034-35 (4th Cir. 1988) (finding that the exhaustion doctrine was not satisfied when the petitioner only offered bald allegations and mere conjecture in state court but provided newly discovered evidentiary support to the federal habeas court, which placed his case in a significantly different and stronger evidentiary posture than it was when the state courts considered it). Additionally, in accordance with Wise, this standard requires "critical evidence that makes [the petitioner's] claim both stronger and significantly different." Mahdi, 20 F.4th at 899 (citation and internal quotation marks omitted) (emphasis in original). Alternatively, "[w]hen new evidence only elaborates on the evidence presented in state court, the claim is not fundamentally altered into a new, and unexhausted, claim." Moore v. Stirling, 952 F.3d 174, 183 (4th Cir. 2020). Rather, "[w]ithout a change to the nature of the claim, the type or quantum of evidence" does not fundamentally alter it. See id. at 183 ("[S]o long as the prisoner has presented the substance of his claim to the state courts, the presentation of additional facts does not mean that the claim was not fairly presented.") (citation and internal quotation marks omitted). Stated differently, a claim is not fundamentally altered when the heart of the claim remains the same, even if the new evidence ultimately strengthens the claim. See Mahdi, 20 F.4th at 899 ("The heart of the claim remains the same: his trial attorneys should have done more to show how [Mahdi's troubled childhood] lessened his culpability.") (citations omitted); Moore, 952 F.3d at 184 ("[T]his newly proffered evidence fails to change the heart of the claim and merely strengthens the evidence presented in the state PCR hearing."); Gray v. Zook, 806 F.3d 783, 799 (4th Cir. 2015) ("The heart of the claim remains the same: his trial attorneys should have done more to show how Gray's intoxication at the time of the crimes lessened his culpability.").

Here, the petitioner argued in his PCR application that his "[t]rial counsel was ineffective for failing to investigate and interview several persons concerning [the petitioner's] whereabouts during the commission of the murder" regarding "a potential alibi" (doc. 12-3 at 142). Further, at the evidentiary hearing before the PCR court, Mr. King testified that he spoke with four witnesses for a potential alibi related to the petitioner's attendance at the wake during the time of the murder (id. at 198-99, 210). Mr. King testified that he ultimately did not call the witnesses to the stand because there were issues pinning down the timeframe of when the petitioner was at the wake and if he still could have subsequently committed the crime, Officer Davidson's testimony that he saw the petitioner walking away from the park about 18 minutes before the shooting, and the risk that such information could have provided a possible motive because the wake was for an individual who was rumored to have been killed by Mr. Chisolm (id. at 198-201, 206-07). Mr. King testified that he discussed all of this with the petitioner and that the petitioner "was on board with staying away from the alibi defense" (id. at 200-201,210-11). The petitioner, however, testified that he talked with Mr. King about alibi witnesses but a final decision was never made and that he was at the wake at 6:45 p.m. on the evening in question (doc. 12-3 at 218). Moreover, Mr. Young testified that he arrived at the wake on the evening in question around 6:00 p.m., he saw the petitioner at the wake somewhere around 6:30 p.m., he introduced the petitioner to Mr. Gilliard's mother and wife and spoke with the petitioner for about five minutes, and the wake was about 20 to 25 minutes from downtown (id. at 235-36). In the hearing, the PCR court found that "it was a good, sound decision not to call the alibi witnesses and the decision to do so did not indicate a deviation from the proper standard of trying a case" (id. at 260-61). In the order of dismissal, the PCR court also found that Mr. King's testimony was credible, Mr. King was not deficient in failing to call Mr. Young as a witness, and the petitioner did not suffer prejudice because the alibi defense would not have provided sufficient corroboration due to the inconsistent timeline and the potential motive for shooting Mr. Chisolm (doc. 12-4 at 21-23).

Comparatively, as set out above, the petitioner alleges in his federal habeas petition that his trial counsel was ineffective by failing "to adequately investigate and/or call alibi witnesses at trial" when he had informed his trial counsel that he was at a wake on the night of the shooting (doc. 1 at 5-6). In addition, the petitioner provided affidavits that were not part of the state court record in response to the respondent's motion for summary judgment, including one from himself, one from Mr. Young, and three from others who claim to have been at the wake with the petitioner at or around the time of the murder (docs. 17-1, Collins aff.; 17-2, Conyers aff.; 17-3, Young aff.; 17-4, Bradley aff.; 18-1, Huger aff.). Three of the affiants claim to have spent more time with the petitioner at the wake than Mr. Young (docs. 17-2, Conyers aff. ¶¶ 6-7, 17-4, Bradley aff. ¶¶ 6-8; 18-1, Huger aff. ¶¶ 4-6). In addition, two of the affiants stated that they spent time with the petitioner for a few hours after the wake, and the petitioner corroborated this in his affidavit (docs. 17-1, Collins aff. ¶ 7; 17-2, Conyers aff. ¶ 8; 18-1, Huger aff. ¶ 7).

The undersigned finds that the petitioner's ineffective assistance of trial counsel claim was adjudicated on the merits by the PCR court, as the petitioner presented the claim to that court and the court denied relief on the merits. Further, the undersigned finds that the petitioner's claim is not fundamentally altered by the new affidavits. The petitioner raised this claim to the PCR court and presented evidence in support of his allegation that he was at the wake, including testimony from himself and Mr. Young. Further, the PCR court found that trial counsel was not ineffective for failing to investigate and call these witnesses. Now, the petitioner is simply seeking to supplement the evidence in support of his claim with statements from additional individuals who were at the wake. While these affidavits may have strengthened the petitioner's ineffective assistance of trial counsel claim, they merely elaborate on the claim he presented to the PCR court and do not fundamentally alter it. In other words, the new affidavits fail to change the heart of the petitioner's claim that trial counsel should have further investigated and called alibi witnesses at trial due to his presence at a wake during the time of the murder. Consequently, because the undersigned finds that the petitioner's ineffective assistance of counsel claim was adjudicated on the merits and is not fundamentally altered by the new affidavits, this claim is subject to review under § 2254(d) and is limited to the state court record. See Pinholster, 563 U.S. at 185 ("If a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court."); see, e.g., Brown v. Warden, Lee Corr. Inst., C/A No. 2:18-cv-1276-DCC-MGB, 2019 WL 6091000, at *7-9 (D.S.C. July 31, 2019) (finding that a claim was procedurally defaulted because the petitioner raised the claim in PCR but not in his PCR appeal and also finding that the claim was adjudicated on the merits due to the PCR court's ruling on the claim), R&R adopted by 2019 WL 4509190 (D.S.C. Sept. 19, 2019).

Procedural Default

The respondent raises the affirmative defense of procedural default but concedes that "[t]his Court will likely find [the petitioner's] claim is not procedurally defaulted because the South Carolina Court of Appeals conducted a review of the entire record pursuant to Johnson, and the PCR trial court ruled on the claim" (doc. 12 at 7). Procedural default is the doctrine applied when a petitioner seeks habeas corpus relief on an issue after he failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion. If a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the Supreme Court has explained:

[State procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.

"[A] federal court ordinarily may not consider claims that a petitioner failed to raise at the time and in the manner required under state law unless 'the prisoner demonstrates cause for the default and prejudice from the asserted error.'" Teleguz v. Pearson, 689 F.3d 322, 327 (4th Cir. 2012) (quoting House v. Bell, 547 U.S. 518, 536 (2006)). To show cause, a petitioner must "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule," Murray v. Carrier, 477 U.S. 478, 488 (1986), or that "the factual or legal basis for the claim was not reasonably available to the claimant at the time of the state proceeding." Roach v. Angelone, 176 F.3d 210, 222 (4th Cir. 1999). "Alternatively, Petitioner may prove that failure to consider the claims will result in a fundamental miscarriage of justice." McCarver v. Lee, 221 F.3d 583, 588 (4th Cir. 2000) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). A fundamental miscarriage of justice equates to the conviction of someone who is actually innocent. However, "actual innocence" requires "factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998).

In Martinez, 566 U.S. at 9, the Supreme Court carved out a "narrow exception" that modified the "unqualified statement in Coleman that an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default." In Martinez,

the Court read Coleman as containing an exception, allowing a federal habeas court to find "cause," thereby excusing a defendant's procedural default, where (1) the claim of "ineffective assistance of trial counsel" was a "substantial" claim; (2) the "cause" consisted of there being "no counsel" or only "ineffective" counsel during the state collateral review

proceeding; (3) the state collateral review proceeding was the "initial" review proceeding in respect to the "ineffective-assistance-of-trial-counsel claim"; and (4) state law requires that an "ineffective assistance of trial counsel [claim] ... be raised in an initial-review collateral proceeding."

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, i.e., it does not have any merit or that it is wholly without factual support, or that the attorney in the initial-review collateral proceeding did not perform below constitutional standards.

Here, the petitioner raised his instant federal claim in his PCR application. However, the petitioner's PCR appellate counsel did not raise the claim in the Johnson petition on appeal. Moreover, despite having the opportunity, the petitioner did not submit a pro se response subsequent to the Johnson petition including any additional claims that he wished to be considered. The petitioner argues that his claim is not procedurally defaulted because, in ruling on a Johnson petition, South Carolina appellate courts are obligated to "review the entire record, including the complete trial transcript, for any preserved issues with potential merit" (doc. 1 at 9-10) (citing Mitchell v. Stevenson, C/A No. 9:14-cv-04539-RBH, 2015 WL 5231833 (D.S.C. Sept. 8, 2015); Jamison v. State, 765 S.E.2d 123 (S.C. 2014)). Thus, the petitioner contends that he was not required to explicitly raise his claim in his PCR appeal to preserve it for federal habeas review since he raised the claim in his PCR application and the PCR court ruled on it (id. at 10).

The Fourth Circuit has held that a petitioner's claim is procedurally defaulted when he raises such claim in his PCR application but not in his PCR appeal. See, e.g., Mahdi, 20 F.4th at 893 ("[A] claim is procedurally barred if the petitioner fail[s] to raise [it] in his petition for certiorari to the South Carolina Supreme Court for review of the State PCR Court's decision.") (citation and internal quotation marks omitted); Longworth v. Ozmint, 377 F.3d 437, 447-48 (4th Cir. 2004) (finding that a petitioner's claim in his habeas petition was procedurally defaulted when he raised the claim in PCR but did not present it in his petition for certiorari filed with the South Carolina Supreme Court); Whitley v. Bair, 802 F.2d 1487, 1500 (4th Cir. 1986) ("[F]ailure to appeal claims disposed of by state habeas trial court constitutes a procedural bar to further federal review of such claims."). However, these cases did not involve Johnson petitions.

Some courts in the District of South Carolina have found that these Fourth Circuit holdings do not extend to PCR appeals involving Johnson petitions and that every issue raised by the petitioner and ruled upon by the PCR court is preserved for federal habeas review, regardless of which issues are actually raised on appeal, since South Carolina appellate courts review Johnson petitions pursuant to the procedures set forth in Anders v. California, 386 U.S. 738 (1967), and therefore review the entire record. See, e.g., Cave v. Warden, Lieber Corr. Inst., C/A No. 0:18-3573-CMC-PJG, 2019 WL 6330811, at *4 (D.S.C. Oct. 29, 2019) (finding that a petitioner's claim was not procedurally defaulted when it was not raised in the Johnson petition or pro se response in the petitioner's PCR appeal because, "as the claim was ruled on by the PCR court and thus preserved for appellate review, the state appellate court reviewed the claim pursuant to the procedures outlined in Anders v. California") (citations omitted), R&R adopted by 2019 WL 6318727 (D.S.C. Nov. 26, 2019); Pierce v. Reynolds, C/A No. 2:15-cv-01803-SB-MGB, 2016 WL 11407782, at *9 (D.S.C. Jan. 28, 2016) (same), R&R adopted by 2016 WL 1271001 (D.S.C. Mar. 29, 2016); Sampson v. Reynolds, C/A No. 9:14-cv-4206-DCN, 2015 WL 4487960, at *5-6 (D.S.C. July 22, 2015) (adopting R&R finding that "since Petitioner's PCR counsel filed a Johnson petition, those issues addressed by the PCR court [but not raised in the PCR appeal] are not procedurally barred").

Nevertheless, many courts in the District of South Carolina have applied these Fourth Circuit holdings in the Johnson petition context. See, e.g., Cox v. Stonebreaker, C/A No. 5:19-cv-01725-RBH-KDW, 2020 WL 2332781, at *3, *8 (D.S.C. April 9, 2020) (finding that a petitioner's claims were procedurally barred because they were not presented in his PCR appeal, either through his counsel's Johnson petition or his pro se response), R&R adopted by 2020 WL 2322614 (D.S.C. May 11, 2020); Gilliard v. Joyner, C/A No. 6:18-2417-SAL-KFM, 2020 WL 2198896, at *7 (D.S.C. Apr. 7, 2020) (finding that some of a petitioner's claims were procedurally defaulted when he did not raise the claims in his Johnson petition in the PCR appeal and, despite being given the opportunity, did not file a pro se response raising any additional issues that he believed the Supreme Court of South Carolina should consider in the PCR appeal), R&R adopted by 2020 WL 2192703 (D.S.C. May 6, 2020); Portee v. Stevenson, C/A No. 8:15-cv-00487-PMD-JDA, 2015 WL 13734631, at *18 (D.S.C. Dec. 29, 2015) ("As an initial matter, the following grounds are procedurally barred because they were not presented to the South Carolina Supreme Court in the Johnson petition or in Petitioner's pro se petition . . . ."), aff'd by 671 Fed.Appx. 100 (4th Cir. 2016); Calloway v. Reynolds, C/A No. 4:15-cv-2137-RMG-TER, 2015 WL 13734213, at *3, *6 (D.S.C. Nov. 24, 2015) (finding that a petitioner's claim was procedurally defaulted when the petitioner raised the claim before the PCR court but did not raise it in his Johnson petition in the PCR appeal or in his pro se response), R&R adopted by 2016 WL 259303 (D.S.C. Jan. 21, 2016).

In the absence of precedent to the contrary, the undersigned finds persuasive the latter-described district court cases. The undersigned finds that the distinction of a Johnson petition does not warrant departure from the Fourth Circuit's unequivocal holding that a claim is procedurally defaulted when it is not raised in the PCR appeal and that an extension of the law indicating that South Carolina appellate courts must review the entire trial record is not a means to circumvent procedural default and obtain federal habeas review.

In addition, the petitioner has failed to articulate any cause and prejudice or miscarriage of justice that would occur to excuse the procedural default. When arguing that the new affidavits fundamentally alter his claim into a new, procedurally defaulted claim, the petitioner argues that the undersigned should nevertheless consider the claim pursuant to Martinez due to his PCR counsel's ineffective assistance. However, as discussed above, because the undersigned finds that the new affidavits do not fundamentally alter his claim, this argument is without merit. Further, in the context of the petitioner's underlying claim, without the new affidavits, that he raised in PCR but not in his PCR appeal, the undersigned finds that the petitioner may not rely on the Martinez exception to Coleman to excuse his default based on his PCR appellate counsel's ineffective assistance for failing to raise this ground, as "ineffective assistance of appellate postconviction counsel ... do[es] not constitute cause for [a petitioner's] failure to exhaust under the limited exception in Martinez." Mahdi, 20 F.4th at 898 (citation and internal quotation marks omitted). Therefore, the undersigned finds that the petitioner's claim is procedurally defaulted, declines to address the claim on the merits, and recommends that the district court grant the respondent's motion for summary judgment.

CONCLUSION AND RECOMMENDATION

Wherefore, based on the foregoing, the court recommends that the respondent's motion for summary judgment (doc. 13) and motion to strike (doc. 21) be granted.

IT IS SO RECOMMENDED.

The attention of the parties is directed to the important notice on the next page.

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk

United States District Court

250 East North Street, Suite 2300

Greenville, South Carolina 29601

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).