Collins v. Warden of Kirkland Corr. Inst.

Full title: Antonio Collins, Petitioner, v. Warden of Kirkland Correctional…

Court: United States District Court, D. South Carolina

Date published: Sep 18, 2024

C. A. 5:23-3696-DCC-KDW (D.S.C. Sep. 18, 2024)

Opinion

C. A. 5:23-3696-DCC-KDW

09-18-2024

Antonio Collins, Petitioner, v. Warden of Kirkland Correctional Institution, Respondent.

Kaymani D. West United States Magistrate Judge

REPORT AND RECOMMENDATION

Kaymani D. West United States Magistrate Judge

Antonio Collins (“Petitioner”) is a state prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 39, 40. On December 21, 2023, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 41. After being granted two extensions, ECF Nos. 50, 59, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment on April 8, 2024. ECF No. 61. Respondent filed a Reply to Petitioner's response on April 11, 2024. ECF No. 62.

Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 40, be granted, and this Petition be denied.

I. Background

Petitioner is currently incarcerated in the Ridgeland Correctional Institution of the South Carolina Department of Corrections. ECF No. 64. Petitioner was indicted at the December 2011 term of the Beaufort County Grand Jury on murder, burglary, and possession of a weapon during a violent crime, and kidnapping. App. 772-79. Petitioner proceeded to a jury trial on October 2124, 2013, before the Honorable J. Ernest Kinard, Jr., Circuit Court Judge. App. 1 et. seq.¹Petitioner was represented by Public Defender Trasi Campbell and Assistant Public Defender Arie Bax, and Assistant Solicitor Hunter Swanson represented the State. App. 1. The jury found Petitioner guilty of murder, burglary, and weapon possession, and not guilty of kidnapping. App. 603. Judge Kinard sentenced Petitioner to 33-years imprisonment. App. 610.

1 Citations to “App.” refer to the Appendix for Petitioner's trial transcript and Post-Conviction Relief (“PCR”) Proceedings and the page numbers on the bottom of the page. That appendix is available at ECF Nos. 39-1 to 39-6 in this habeas matter.

Petitioner appealed his convictions to the South Carolina Court of Appeals (“Court of Appeals”). Petitioner was represented by Attorney M. Rita Metts and Chief Appellate Defender Robert M. Dudek, South Carolina Commission on Indigent Defense, Division of Appellate Defense. App. 780. Petitioner raised the following issues on appeal:

1. The trial judge allowed the admission of improperly obtained DNA and/or blood evidence, and erred in denying the Appellant's motions to exclude the improperly obtained DNA and/or blood evidence.

2. The trial court committed reversible error when it admitted DNA and/or blood evidence, despite conflicting testimony which demonstrated improper sample collection and a tainted crime scene, which demonstrated probable tampering or altering of the samples.

3. There was no probable cause for the arrest of the appellant.

App. 783. The State filed a final brief of respondent on May 19, 2016. App. 795-851. The Court of Appeals filed an unpublished decision on April 5, 2017, affirming Petitioner's convictions. App. 854-55.

II. Procedural History

Petitioner filed an Application for Post-Conviction Relief (“PCR”) on July 7, 2017. App. 856-61. Petitioner asserted he was being held in custody unlawfully because of ineffective assistance of trial and appellate counsel. App. 858. The State filed a return and motion for more definite statement on October 23, 2017. App. 863-69. Petitioner filed an amended PCR Application on July 25, 2018. App. 879-81. A PCR motion hearing convened on August 26, 2019, before the Honorable Jennifer McCoy, Circuit Court Judge. App. 882-1036. Petitioner was present and represented by Attorney Tricia Blanchette, and Attorney Benjamin Limbaugh appeared on behalf of the State. See id. Petitioner, his trial counsels Trasi Campbell and Arie Bax, and appellate counsel M. Rita Metts appeared and testified at the hearing. Id. A second PCR hearing was held on September 26, 2019, before Judge McCoy to take the testimony of Chief Appellate Defender Robert Dudek. App. 1122-59. The PCR court denied and dismissed Petitioner's PCR Application with prejudice in an order filed on May 26, 2020, making the following findings of fact and conclusions of law:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This Court has thoroughly reviewed the record in its entirety. Additionally, this Court heard the testimony presented at the evidentiary hearing and was able to observe the witnesses presented, which allowed the Court to scrutinize the credibility presented. Set forth below are the relevant findings of facts and conclusions of law as required pursuant to S.C. Code Ann. §17-27-80 (1985).

The Sixth Amendment to the United States Constitution guarantees a defendant the right to effective assistance of counsel. U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668 (1984); Lomax v. State, 379 S.C. 93, 665 S.E.2d 164 (2008).

In a post-conviction relief action, an applicant bears the burden of proving the allegations in his or her application. Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). Where the application alleges ineffective assistance of counsel as a ground for relief, the applicant must prove that “counsel's conduct so undermined

the proper functioning of the adversarial process that [it] cannot be relied upon as having produced a just result.” Strickland, 466 U.S. 668; Butler, 286 S.C. at 442, 334 S.E.2d at 814.

Strickland does not guarantee perfect representation, only a “‘reasonably competent attorney.'” 466 U.S. at 687 (quoting McMann v. Richardson, 397 U.S. 759, 770 (1970)). Representation is constitutionally ineffective only if it “so undermined the proper functioning of the adversarial process” that the defendant was denied a fair trial. Strickland, 466 U.S. at 686. Just as there is no expectation that competent counsel will be a flawless strategist or tactician, an attorney may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what appear to be remote possibilities. See generally Id.

In evaluating allegations of ineffective assistance of counsel, the reviewing court applies the two-pronged test outlined in Strickland, 466 U.S. 668. First, an applicant must prove that counsel's performance was deficient. Id.; Cherry v. State, 300 S.C. 115, 117, 386 S.E.2d 624, 625 (1989). Under this prong, the court measures an attorney's performance by its “reasonableness under prevailing professional norms.” Cherry, 300 S.C. at 117, 386 S.E.2d at 625 (quoting Strickland, 466 U.S. at 690). The proper measure of performance is whether an attorney provided representation within the range of competence required in criminal cases. Butler, 286 S.C. at 442, 334 S.E.2d at 814. “Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. (citing Strickland, 466 U.S. at 690). The applicant must overcome this presumption to receive relief. Cherry, 300 S.C. at 118, 386 S.B.2d at 625. Second, counsel's deficient performance must have prejudiced the applicant such that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Cherry, 300 S.C. at 117-18, 386 S.E.2d at 625.

Although courts may not indulge “post hoc rationalization” for counsel's decision making that contradicts the available evidence of counsel's actions, Wiggins, 539 U.S., at 526-527, neither may they insist counsel confirm every aspect of the strategic basis for his or her actions. There is a “strong presumption” that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than “sheer neglect.” Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam.). After an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better, and, in the course of that reflection, to magnify their own responsibility for an unfavorable outcome. Strickland, however, calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind. Id. at 688; Harrington v. Richter, 562 U.S. 86 (2011)

With respect to prejudice, an applicant must demonstrate “a reasonable probability but for counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. It is not enough “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Counsel's errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687; Harrington, 562 U.S. 86.

“Surmounting Strickland's high bar is never an easy task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010). An ineffective assistance of counsel claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest “intrusive post-trial inquiry” threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U.S. at 68-90. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings knew of materials outside the record and interacted with the client, with opposing counsel, and with the judge. It is “all too tempting” to “second-guess counsel's assistance after conviction or adverse sentence.” Id. at 689; see also Bell v. Cone, 535 U.S. 685, 702 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). The question is whether an attorney's representation amounted to incompetence under “prevailing professional norms,” not whether it deviated from best practices or most common custom. Strickland, 466 U.S. at 690.

In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. Wong v. Belmontes, 558 U.S. 15 (2009); Strickland, 466 U.S. at 693. Instead, Strickland asks whether it is “reasonably likely” the result would have been different. Id. at 696. This does not require a showing that counsel's actions “more likely than not altered the outcome,” but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters “only in the rarest case.” Id. at 693, 697. The likelihood of a different result must be substantial, not just conceivable. Id. at 693; Harrington, 562 U.S. 86.

Based on this standard set forth above, this Court finds Applicant has failed to meet his requisite burden of establishing any constitutional ineffectiveness of counsel as to any of his various allegations. Each allegation is addressed fully below:

Allegation: Failure to Develop or Preserve Contamination Argument

Applicant alleges trial counsel was ineffective for failing to fully develop or preserve the defense's argument that the DNA should be excluded due to potential contamination. Counsel moved to suppress the DNA evidence by way of pre-trial motion where the contamination issue was argued in camera before Judge Kinard. Numerous officers testified to; responding to the crime scene, preservation

of the scene, collection of blood evidence, returning to the scene and collection of further blood samples, recovery and processing of the .40 caliber firearm, processing of the Cadillac Deville, and the preservation of evidence. (R. pp. 51102). At the conclusion of the hearing, Judge Kinard denied the motion to suppress finding Collins' arguments went to the weight of the evidence, which he could bring out before the jury and argue, but not its admissibility. Judge Kinard determined the testimony established the collection and preservation of the evidence by Beaufort police was sufficient to allow its admissibility and overruled Collins objection to this evidence on this basis. (R. pp. 102-105).

Counsel did not make a contemporaneous objection to the introduction of the DNA evidence at trial, thus failing to preserve the issue for appellate review. However, Applicant has failed to show any resulting prejudice from counsel's failure to preserve the issue for appellate review or developing the argument any further.

An issue that was raised on direct appeal but found to be unpreserved may be raised in the context of a post-conviction relief claim alleging ineffective assistance of counsel. McHam v. State, 404 S.C. 465, 475, 746 S.E.2d 41, 47 (2013) (citing McLaughlin v. State, 352 S.C. 476, 575 S.E.2d 841 (2003); Foye v. State, 335 S.C. 586, 518 S.E.2d 265 (1999)). However, to be entitled to relief on such a claim, an applicant must establish the underlying claim is meritorious and would have resulted in a reversal on appeal to a reasonable probability. McHam, 404 S.C. at 475-76, 746 S.E.2d at 47 (“Since the Fourth Amendment issue was not considered on direct appeal because it was unpreserved, an examination of the merits of the issue is appropriate in analyzing the prejudice prong in McHam's PCR claim.”). Therefore, before a post-conviction relief court can grant relief on a claim of ineffective assistance of trial counsel for failing to preserve a ground for appellate review, the court must determine the underlying claim was meritorious and a reasonable probability that it would have resulted in reversal and a new trial.

This Court finds that Applicant has failed to meet his burden in showing that counsel's failure to preserve the issue for appeal resulted in any prejudice. Here, Applicant would have to show that the trial court would have abused its discretion in denying a timely objection to the introduction of the DNA evidence considering the contamination argument made by counsel. The admission or exclusion of evidence is within the sound discretion of the trial judge and is reversible only for an abuse of discretion. State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006); State v. Stanley, 365 S.C. 24, 33, 615 S.E.2d 455, 460 (Ct App. 2005); State v. Patterson, 337 S.C. 215, 522 S.E.2d 845 (Ct. App. 1999). The testimony concerning DNA evidence complied with the requirements set forth in State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999). The Court held: “Any evidence concerning contamination, therefore went to the weight of the testimony, not its admissibility.” Ramsey, 345 S.C. at 616. The Court finally noted that the mixture of DNA evidence is not a basis for the exclusion of the DNA testing. Id.,

referencing Oregon v. Lyons, 124 Or.App. 598, 863 P.2d 1303 (1993)(finding the potential for DNA contamination presents an “open field” for cross examination at trial, but does not indicate the PCR method of DNA testing is inappropriate for forensic use).

Under the Rule 702 analysis used by the Court in Ramsey, Collins has not shown that possible contamination or cross-contamination indicates the method of DNA testing used in this case is inappropriate for forensic use. DNA testing whether PCR or STR is scientifically reliable. See Ramsey; Council, 335 S.C. 1, 515 S.E.2d 508; State v. Ford, 301 S.C. 485, 392 S.E.2d 781 (1990).

Furthermore, in State v. Holmes, 361 S.C. 333, 605 S.E.2d 19 (2005), reversed on other grounds Holmes v. South Carolina, 547 U.S. 319, 126 S.Ct. 1727 (2006)(reversed on issue of 3^rd party guilt evidence), our Supreme Court held: “(T]he fact the forensic evidence may have been compromised by the unprofessional manner in which the evidence was collected goes to the weight of the evidence, not its admissibility.” Holmes, 361 S.C. at 343, fn 8, citing State v. Carter, 344 S.C. 419, 544 S.E.2d 835, (2001); State v. Smith, 326 S.C. 39, 482 S.E.2d 777 (1997). Given Collins' assertion on appeal, this appeal must be dismissed with prejudice. State v. Holmes.

Here, the trial judge would have been well within their discretion in overruling any potential objection to the DNA evidence on the contamination ground and thus the issue would not have been meritorious on appeal. There was no evidence presented that the DNA samples were in fact contaminated or that the procedures used by SLED were unreliable. Even if evidence was presented that the samples could have been contaminated, the trial court should allow the evidence to be presented to the jury for their consideration as to how much weight to give that fact. Therefore, Applicant has failed to show how he was prejudiced by counsel's failure to preserve or more fully develop the contamination issue. This Court finds that Applicant has failed to meet his burden and dismisses this allegation with prejudice.

Allegation: Failure to Preserve for Appellate Review all Argument relating to the Suppression of the DNA Evidence

Applicant alleges counsel was ineffective for failing to preserve all arguments concerning the suppression of the DNA evidence for appellate review. Applicant alleges counsel failed to preserve the voluntariness of the buccal swab conducted in Florida, sufficiency of the probable cause to support the Schmerber order, the denial of the suppression motion by Judge McDonald, and the DNA samples being fruits of the poisonous tree that would not be inevitably discovered. Counsel failed to properly preserve these issues for appellate review, however, Applicant has failed to show prejudice where these issues would not have been meritorious on appeal if properly preserved.

This Court finds that Applicant has failed to meet his burden in showing that counsel's failure to preserve the issue for appeal resulted in any prejudice. Here, Applicant would have to show that the trial court committed clear error in allowing the DNA evidence from the 1st Buccal swab in at trial. “The standard of review of Fourth Amendment search and seizure issues on appeal is deferential and is limited to determining whether any evidence supports the trial court's finding, with this Court only being able to reverse the ruling of a trial judge where there is clear error. State v. Taylor, 401 S.C. 104, 736 S.E.2d 663 (2013). As a result, if there is any evidence to support the trial judge's ruling as to the validity of a search, with or without a warrant, it will be affirmed on appeal. Id.; State v. Brown, 401 S.C. 82, 736 S.E.2d 263 (2012).

A DNA buccal swab constitutes a search and under the Fourth Amendment. “Warrantless searches and seizures are reasonable within the meaning of the Fourth Amendment when conducted under the authority of voluntary consent.” State v. Pichardo, 367 S.C. 84, 105, 623 S.E.2d 840, 851 (Ct. App. 2005). It is well established that one of the well-delineated exceptions to the search warrant requirement is a search conducted pursuant to a valid consent given by the proper party. Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256 (1946); Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277 (1946); Palacio v. State, 33 S.C. 506, 511 S.E.2d 62 (1999). When the prosecution seeks to rely upon the consent of the defendant to justify the search, they have the burden of proving that the consent was, in fact, freely and voluntarily given. Scheckcloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041 (1973); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788 (1968); State v. Brannon, 347 S.C. 85, 552 S.E.2d 773 (Ct. App. 2001). Whether a defendant voluntarily consents to a search is a question to be determined by the trial judge based on the totality of the circumstances. United States v. Mendenhall, 446 U.S. 544, 558-59, 100 S.Ct. 1870, 1879 (1980); State v. Harris, 277 S.C. 274, 286 S.E.2d 137 (1982); State v. Bailey, 276 S.C. 32, 274 S.E.2d 913 (1981); State v. Adams, 377 S.C. 334, 339, 659 S.E.2d 272, 275 (Ct. App. 2008). When the issue of voluntary consent is contested by contradictory testimony, it is an issue of credibility for the trial judge to resolve. State v. Wallace, 269 S.C. 547, 238 S.E.2d 675 (1977); State v. Greene, 330 S.C. 551, 499 S.E.2d 817 (Ct. App. 1997).

Here, given the totality of the circumstances, Judge McDonald properly found the State had proven Collins had freely and voluntarily consented to the taking of the buccal sample at the Miami/Dade County Jail. (R. pp. 649-709; Court's Exhibit 1 (Consent Form); Order Denying Defense Motion to Suppress Buccal Swabs). Schneckloth v. Bustamonte; United States v. Mendenhall. The credible testimony at the suppression hearing showed Collins was not threatened or coerced by Detective Segovia. Schneckloth. No physical punishment or threat of punishment was used to by Segovia to obtain consent. Id. Collins was not misled by Detective Segovia to get him to give the buccal sample. Segovia testified the only thing he informed Collins of was he was being investigated for a series of

crimes. Although police were not required to, Collins was fully informed of his right to deny consent to the buccal swab. Id.; State v. Forrester, 334 S.C. 567, 514 S.E.2d 332 (Ct App. 1999)(though not required, whether defendant was informed and knew he had the right to deny consent is a factor to be considered in determining if the consent was freely and voluntarily made), reversed on other grounds, 343 S.C. 637, 541 S.E.2d 837 (2001); Wallace, 269 S.C. 547, 238 S.E.2d 675 (same); State v. Newman, 261 S.C. 35.2, 200 S.E.2d 82 (1973)(similar). The meeting between Collins and Segovia lasted six (6) minutes. Schneckloth. Collins reviewed and executed a Voluntary Consent to give his buccal sample. (R. p. 719, Court's Ex. 2). Collins was informed in the notice that he had the right to refuse consent [Schneckloth]; but, he did not refuse and signed the waiver form.

Therefore, Applicant has failed to show that the failure to preserve the suppression of the 1st Buccal swab at trial would have been a meritorious issue on appeal. This Court finds that Applicant has failed to show any resulting prejudice from counsel's failure to preserve the issue for appeal.

In order for Applicant to show prejudice resulting from the failure to preserve the objection to the issuance of the Schmerber order he would need to show the trial court lacked a substantial basis for concluding probable cause existed. State v. Herring, 387 S.C. 201, 212, 692 S.E.2d 490, 495 (2009). Applicant would also need to overcome the great deference a reviewing appellate court would give the findings of the trial court. State v. Jones, 342 S.C. 121, 536 S.E.2d 675 (2000).

When determining the propriety of the issuance of a warrant or court order to conduct a search, the duty of this Court is simply to determine whether the issuing court had a substantial basis for concluding probable cause existed. State v. Herring, 387 S.C. 201, 212, 692 S.E.2d 490, 495 (2009). In making such a decision, this Court must consider the totality of the circumstances. Jones, 342 S.C. 121, 536 S.E.2d 675 (under this test, a reviewing court considers all circumstances, including status, basis of knowledge, and veracity of informant, in determining whether probable cause existed to issue a search warrant); State v. Dupree, 354 S.C. 676, 683, 583 S.E.2d 437, 441 (Ct. App. 2003).

A search warrant or Schmerber Order may issue only upon a finding of probable cause. State v. Weston, 32 S.C. 287, 290, 494 S.E.2d 801, 802 (1997). The affidavit or testimony at a Schmerber hearing must contain sufficient underlying facts and information upon which the judge may make a determination of probable cause. Dupree, 354 S.C. 676, 583 S.E.2d 437. “[T]he duty of a reviewing court is simply to ensure that the magistrate [or circuit court] had a ‘substantial basis' for ... concluding] that probable cause existed.” Weston, 329 S.C. at 290-91, 494 S.E.2d at 802-03. However, all that is necessary for the issuance of a warrant or Schmerber Order is probable cause. State v. Covert, 382 S.C. 205, 675 S.E.2d.740 (2009).

Probable cause does not mean absolute certainty. State v. Dean, 282 S.C. 136, 317 S.E.2d 744 (1984). South Carolina has adopted the “totality of the circumstances” test of Illinois v. Gates, in determining whether sufficient probable cause exists to issue a search warrant or Schmerber order. State v. Bellamy, 336 S.C. 140, 143, 519 S.E.2d 347, 348 (1999). The task of the issuing court is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit or testimony before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Gates, 462 U.S. at 238 (emphasis added); accord Herring, 387 S.C. at 212, 692 S.E.2d at 495-96; State v. Johnson, 302 S.C. 243, 395 S.E.2d 167 (1990)(adopting Gates test). Probable cause “does not demand any showing that such a belief be correct or more likely true than false.” State v. Bowie, 360 S.C. 210, 600 S.E.2d 112 (Ct. App. 2004), quoting Brown, 460 U.S. at 742. In determining whether a warrant or Schmerber order should issue, judges are concerned with probabilities not certainties. Bowie, 360 S.C. 210, 600 S.E.2d 112, citing Sullivan, 267 S.C. at 17, 230 S.E.2d at 624.

Information in support of a search warrant or Schmerber order may be based on hearsay information and need not reflect the direct personal observations of the affiant. Sullivan, 267 S.C. at 614-15, 230 S.E.2d at 623 (search warrant can be supported by information given to the affiant by other officers); see Jones v. United States, 362 U.S. 257 (1960); United States v. Ventresca, 380 U.S. 102, 108 (1965)(same); State v. York, 250 S.C. 30, 156 S.E.2d 326 (1967)(same); United States v. Weiebir, 498 F.2d 346 (4th Cir. 1974).

The decision to issue a search warrant or Schmerber order must include consideration of the veracity of the person supplying the information and the basis of the affiant's knowledge. State v. Adolphe, 314 S.C. 89, 441 S.E.2d 832 (Ct. App. 1994). “The ‘experience of a police officer is a factor to be considered in the determination of probable cause.'” Dupree, 319 S.C. at 459, 462 S.E.2d at 282, citation omitted. Eyewitnesses and non-confidential informants are often given a higher level of credibility when supplying information to support probable cause to search. See State v. Driggers, 322 S.C. 506,473 S.E.2d 57 (Ct.App.1996).

To determine probable cause exists to obtain nontestimonial identification evidence the State must show there is “(1) probable cause to believe the suspect has committed the crime, (2) a clear indication that relevant material evidence will be found, and (3) the method used to secure it is safe and reliable.” State v. Baccus, 367 S.C. 41, 53-54, 625 S.E.2d 216, 222-23 (2006), quoting In re Snyder, 308 S.C. 192, 195, 417 S.E.2d 572, 574 (1992); State v. Jenkins, 398 S.C. 215, 224, 727 S.E.2d 761, 766 (Ct. App. 2012). See also State v. Register, 308 S.C. 534, 538, 419 S.E.2d 771, 773 (1992). Additional factors to be weighed are the seriousness of the crime and the importance of the evidence to the investigation. Register, 308 S.C. at 538, 419 S.E.2d at 773; State v. Simmons, 384 S.C. 145, 682 S.E.2d 19 (2009). The

circuit court is required to balance the necessity for acquiring involuntary nontestimonial identification evidence against constitutional safeguards prohibiting unreasonable bodily intrusions, searches, and seizures. Id. “Probable cause may be found somewhere between suspicion and sufficient evidence to convict.” Geer, 391 S.C. at 197; State v. Blassingame, 338 S.C. 240, 250,525 S.E.2d 535,540 (Ct. App. 1999). “[T]o show that a suspect's DNA is relevant under the second element of Baccus, the State must show there is other DNA evidence in the case to which it can be compared, or in some other manner clearly indicate the relevance of the DNA sought.” Jenkins, 398 S.C. at 224, 727 S.E.2d at 766.

Investigator Wilson testified to fact there was an eyewitness to the murder, Enrekae Miles, and the fact that Miles was forced at gunpoint by two (2) men to the victim's front porch. She testified to the fact there was a shootout between the victim and the shooter, including shell casings from two (2) different guns found at the scene in two (2) different locations. She testified to the fact the victim died from the gunshot wounds inflicted by the shooter who forced his way into the victim's house before the exchange of gunfire. The investigator testified to the substance of the 911 call received the night of the murder by Beaufort police in which the 911 caller, who lived near the victim, stated there were two (2) black males involved and one (1) of them stated before getting in a car and leaving the area at he had been shot in the leg. The investigator testified to the identification of the car involved in the crime as being a beige or creme colored Cadillac Deville by witnesses in the area of the crime. The investigator testified to the discovery of the blood drops at the crime scene, on the road leading away from the victim's residence, on the .40 caliber pistol found in the grass where the blood trail ended, and in the Cadillac Deville recovered in Jasper County, and how police determined the shooter/perpetrator was wounded during the exchange of gunfire with the victim, from the blood drops, the blood trail, and the blood in the car. She testified to the fact samples from the above described locations were taken and forwarded to SLED for D.N.A. analysis. She testified to the fact it was determined through D.N.A. analysis that the same individual left the blood drops at the crime scene, on the road leading away from the victim's residence, on the .40 caliber pistol, and in the back seat of the Cadillac Deville. The investigating officer testified how police identified Antonio Collins, as a suspect in this case, from interviewing a named federal informant, Gussie Goldwire, who was related to Collins, and knew him by Antonio Wilson and witnessed Collins and Jeremy Murphy arrive at Goldwire's residence in Jasper the night of the murder in Murphy's Cadillac and Collins had recently been shot in the leg and was being helped from the car and into the residence. Goldwire also informed police Collins was from Florida. The investigating officer testified how police also interviewed Jeremy Murphy, the owner of the car [the Cadillac Deville from which blood stains were found], who informed police Collins had his car the night of the murder. Murphy knew Collins as Antonio from Florida The investigating officer testified to her further investigation and research and how she identified Collins as the person both the named informant [Goldwire] and Murphy identified and were referring to was in

fact Applicant Antonio Eugene Collins by using the names of relatives of Collins whose names Goldwire had provided to the investigator and those same relatives names showed up in Collins' police intelligence reports. The investigator also testified to the fact Collins was determined to be a resident of Florida, as Murphy had informed police, and he was located in the Miami - Dade County jail and that Miami police approached Collins and obtained a buccal swab from him, that swab was sent to SLED, and it matched the DNA of the blood found on the victim's front porch, on the road leading away from the crime scene, on the gun found near the end of the blood trail, and in Murphy's Cadillac Deville. And, she testified to the scars she saw on Collins' legs in photos taken by Miami police which could be attributable to a gunshot wound. (R. pp. 620-41).

This Court finds that Applicant has failed to show that had this issue been properly preserved it would have been meritorious on appeal. As noted by the citations to the record above, the trial court had a substantial basis for finding that probable cause existed to warrant the issuance of the order. Therefore, this Court finds that Applicant has failed to meet his burden in showing that had this issue been preserved it would have been meritorious on appeal, thus failing to show any resulting prejudice. This Court dismisses this allegation with prejudice.

Applicant alleges that counsel was deficient for failing to properly preserve for appellate review whether the DNA samples were fruits of the poisonous tree and would not have been inevitably discovered. To succeed on this issue Applicant would first need to show that the DNA evidence was not properly obtained through the avenues previously examined, that the DNA evidence was in fact fruits of the poisonous tree, and that if properly preserved the issue would have been meritorious on appeal. First, this Court finds that the DNA was properly admitted through the avenues previously examined and thus would not have been a meritorious issue on appeal had it been properly preserved. Second, however, this Court will examine the allegation on its own merits to determine whether Applicant would have been prejudiced had this issue been properly preserved.

This Court previously determined, law enforcement had probable cause to obtain a Schmerber order to obtain Collins' D.N.A. even without the results of the 1st buccal swab based on the information developed by police during the investigation of this murder including the statements from two (2) named individuals, Gussie Goldwire and Jeremy Murphy, which had been corroborated by physical evidence, and their follow up investigation which determined the person Goldwire and Murphy were referring to was Applicant Antonio Eugene Collins. As a result, the 1st buccal swab would have been inevitably discovered. United States v. Whitehorn, 813 F.2d 646 (4th Cir. 1987); State v. Brown, 289 S.C. 58, 347 S.E.2d 882 (1986) (inevitable discovery is an exception to the exclusionary rule); Jenkins, supra (remanding to determine if inevitable discovery applied); State v. Spears, 393 S.C. 466, 482, 713 S.E.2d 324,332 (Ct. App. 201l) (evidence may be

admitted “if the government can prove evidence would have been obtained inevitably.”)

Furthermore, the 2nd buccal swab was a lawful search incident to arrest Maryland v. King, 133 S.Ct. 1958 (2013). When Collins appeared before Judge Dennis for the Schmerber hearing, he had already been arrested for murder, a dangerous and violent crime. In Maryland v. King, the United States Supreme Court recognized that when police take a buccal swab from a defendant arrested for a dangerous felony, the search is no different than police taking the fingerprints of an arrested subject or taking a booking photograph. It is a lawful search incident to arrest, and individualized suspicion is not necessary. As a result, the taking of the 2nd buccal swab did not violate the Fourth Amendment. Id. Even if the trial court had not issued the Schmerber order, the State would have inevitably gotten Applicant's DNA through buccal swab as a search incident to arrest. Thus, Collins' DNA would have been inevitably discovered. Id. The United States Supreme Court decided Maryland v. King, supra on June 3, 2013. Collin's trial did not begin until October 24, 2013. As a result, the State would have inevitable discovered Collins' DNA in any event. Id.; Nix v. Williams, 467 U.S. 431 (1984); United States v. Allen, 159 F.3d 832 (4th Cir. 1998). See S.C. Code Ann. Section 23-3-620 (effective January 1, 2009).

Applicant has failed to show any meritorious basis for objecting to the introduction of the DNA evidence as being fruit of the poisonous tree or that the issue would have been meritorious on appeal had it been properly preserved. Therefore, Applicant has failed to meet his burden in proving that he was prejudiced by counsel's failure to preserve the issue for appellate review. This Court dismisses this allegation with prejudice.

Allegation: Failure to Present Evidence Concerning Gunshot Wound

Applicant alleges counsel was deficient for failing to present evidence in support of the defense's position that Applicant did not in fact suffer a gunshot wound. Applicant introduced a number of exhibits relating to this allegation at the evidentiary hearing: State's motion to obtain x-rays of Applicant, subsequent court order for x-rays, defense motion and order to obtain gun wound expert, x-ray report, and the motion and order for the Beaufort County Public Defender's Office to obtain a wound doctor.

“Counsel's performance is accorded a favorable presumption, and a reviewing court proceeds from the rebuttable presumption that counsel ‘rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.'” Strickland, 466 U.S. at 690. There is a strong presumption that counsel's decisions are based on tactical strategy rather than neglect. Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (quoting Massaro v. United States, 538 U.S. 500 (2003)). “Accordingly, when counsel articulates a valid reason for

employing a certain strategy, such conduct will not be deemed ineffective assistance of counsel.” Smith v. State, 386 S.C. 562, 567, 689 S.E.2d 629, 632 (2010) (citing Caprood v. State, 338 S.C. 103, 110, 525 S.E.2d 514, 517 (2000)). See also Stokes v. State, 308 S.C. 546, 419 S.E.2d 778 (1992) (holding where counsel articulates valid reasons for employing certain strategy, such conduct will not be deemed ineffective assistance of counsel); Ingle v. State, 348 S.C. 467, 470, 560 S.E.2d 401, 402 (2002) (holding counsel may avoid finding of ineffectiveness if he articulates a valid reason for using a certain strategy). “[D]ecisions primarily involving trial strategy and tactics may be made by trial counsel. Examples of such decisions include ‘which jurors to accept or strike, which witnesses should be called on the defendant's behalf, what evidence should be introduced, whether to object to the admission of evidence, [and] whether and how a witness should be crossexamined.' What motions to file and ‘whether to put on evidence so as to preserve the final word in closing argument' are also strategic and tactical decisions to be made by trial counsel.” Abney v. State, 408 S.C. 41, 48, 757 S.E.2d 544, 547 (Ct. App. 2014) (internal citations omitted). Trial counsel's strategy is reviewed under “an objective standard of reasonableness.” Magazine v. State, 361 S.C. 610, 617, 606 S.E.2d 761, 764 (2004).

At trial, counsel argued in closing that there was a gaping hole in the State's case and that hole was that there was no evidence of a hole in Applicant's leg. Tr. P. 562, l. 5-8. Counsel continued to argue to the jury that if such evidence existed the State would have presented it during the trial and that the lack of such evidence amounted to reasonable suspicion. Counsel testified that she was unsure whether the State was going to introduce the x-rays of Applicant at trial and felt that they were harmful to the defense. Counsel further testified that she presented the argument to the jury in closing in an effort to introduce reasonable doubt, but that she did not have evidence to introduce during the trial to support the theory.

This Court finds that counsel enumerated a valid trial strategy for not introducing concerning the gunshot wound at trial and instead deciding to argue the issue in her closing argument. Counsel testified that she decided to make this strategic decision in an effort to introduce reasonable doubt to the jury and to avoid potentially detrimental evidence being introduced. Therefore, this Court finds that Applicant has failed to meet his burden in showing any deficiency on the part of counsel or any resulting deficiency. This Court dismisses this allegation with prejudice.

Allegation: Failure of Appellate Counsel to Properly Raise Issues on Appeal

Applicant alleges appellate counsel was deficient for failing to properly raise issues on appeal, resulting in the appeal being dismissed.

Appellate counsel testified at the evidentiary hearing that she did not have a particular reason for failing to cite to the record and that she did not cite to legal

authority because she could not find any that supported her positions. Counsel furthered testified that she felt her representation concluded when she filed the brief and that she was not responsible for subsequent replies. Counsel went on to testify about the Appellate Practice Project where she was assigned the case. Following the testimony concerning the Appellate Practice Project, this Court left the record open for additional testimony to be elicited from Chief Public Appellate Defender Robert Dudek. Dudek testified generally about the Appellate Practice Project. Dudek testified that the CLE goes over appellate practices and that the attorneys were expected to turn in their appellate filings to be printed. Dudek testified that he was not a supervisor to the attorneys in the project, his office does not make substantial edits to the documents submitted to be printed, and that the attorney was responsible for handling the case. Dudek testified that the appeal was dismissed because the issues were abandoned for failing to cite to legal authority, the issues were not raised in the same manner on appeal as at trial, and that the issues were not properly preserved. Dudek testified that he agreed that the issues were not properly preserved at trial. Dudek testified that he did not recall counsel consulting him concerning potentially filing for rehearing. Dudek testified that since the issues were procedurally barred there would not have been merit in filing for rehearing. Dudek testified that he felt that counsel was deficient in her representation and felt a new trial was the appropriate remedy, however, failed to cite a meritorious issue counsel failed to raise.

First, this Court is highly concerned with the efficacy and practices of the Appellate Practice Project. This Court notes that complex appellate cases are being distributed to attorneys with potentially no experience in area of appellate practice. The lack of oversight in this area is of grave concern to this Court. However, Applicant has failed to show how appellate counsel's deficiency in failing to file an appropriate brief prejudiced Applicant. As indicated by the appellate court in its order dismissed the appeal, none of the issues raised were properly preserved for appellate review. Even if appellate counsel had properly cited to legal authority to support the positions argued the appeal would have been dismissed for lacking in issue preserved for review. Further, Applicant has failed to elicit testimony from appellate counsel or Robert Dudek as to what issues were properly preserved for appellate review that could have been meritorious if raised.

Applicant speculates that such issues existed and if raised would have been meritorious on direct appeal. This Court finds that Applicant has failed to meet his burden under Strickland and Cronic. This Court finds that Applicant has failed to show prejudice resulting from appellate counsel's deficiency or such occasion to find presumed prejudice under Cronic. This Court therefore dismisses this allegation with prejudice.

CONCLUSION

Based on all the forgoing, this Court finds and concludes Applicant has not established any constitutional violations or deprivations before or during his trial and sentencing proceedings. Counsel was not deficient, nor was Applicant prejudiced by Counsel's representation. Therefore, this PCR application must be denied and dismissed with prejudice.

App. 1168-87. Petitioner filed a Rule 59(a) & (e) motion to alter or amend the PCR court's order on June 10, 2020. App. 1189-94. The court denied the motion to reconsider on July 6, 2020. App. 1228.

Petitioner appealed the denial of his PCR application and Tricia A. Blanchette, Esquire, represented Petitioner on appeal. ECF No. 39-7. Attorney Blanchette filed a Petition for Writ of Certiorari in the South Carolina Supreme Court on December 8, 2020, presenting the following issues:

Whether the lower court erred in failing to rule on the issues as raised and find that Petitioner was entitled to a new trial due to the representation provided by trial and appellate counsel regarding matters related to the DNA evidence.

Id. at 3. The State filed a return on April 9, 2021. ECF No. 39-8. On April 27, 2021, the South Carolina Supreme Court transferred the Petition to the Court of Appeals. ECF No. 39-9. The Court of Appeals filed an order on December 9, 2022, denying the petition for a writ of certiorari. ECF No. 39-10. The remittitur was issued on January 5, 2023. ECF No. 39-11.

III. Discussion

A. Federal Habeas Issues

Petitioner raises the following issues in his Federal Petition for a Writ of Habeas Corpus, quoted verbatim:

Ground One: Ineffective assistance of trial and appellate counsel, matters related to DNA evidence, but not limited to the following:

Supporting Facts:

(A) Pursuing but not completely developing or preserving a contamination argument.

(B) Failure to preserve all arguments related to the DNA for appellate review by failing to make a motion in limine for suppression, object to the admission of the DNA evidence, and properly renew prior motions and objections. (Court order)(Attachment) (Continue page).

(C) Failure to properly argue at pre-trial, trial or appeal the following:

I. Under the totality of the circumstances to include but not limited to police deception and failure to contact Applicant's Appointed Counsel, suppression was required since voluntary consent was not obtained for Applicant's swab in Florida.

II. Probable cause did not exist to support the Schmerber order issued by the Honorable R. Dennis Markley and later re-examined by the Honorable Stephanie McDonald.

III. Suppression of the evidence should have been granted by the Honorable Stephanie McDonald.

IV. Applicant's DNA samples were obtained as fruit of the poisonous tree and were not a result of inevitable discovery. (Attachment)

Ground Two: Ineffective assistance of trial counsel

Supporting Facts: For failure to present available evidence in support of the defense argument that Applicant did not suffer a gunshot wound. Transcript page 562, lines 5-20.

Ground Three: Ineffective assistance of appellate counsel.

Supporting Facts: For failure to properly raise issues with citation to legal authority and reply to erroneous information in state's brief.

Ground Four: Pursuant to Rule 15(6), SCRCP

Supporting Facts: Applicant would move to Amend to Conform to the evidence and testimony presented at the evidentiary hearing.

Ground Five: Ineffective Assistance of PCR and appellate lawyer.

Supporting Facts: Not completely seeking out evidence of police misconduct, during interrogation which shows my constitutional rights being violated, on audio and video. When I asked to have my lawyer present but was denied and interrogation continued and I felt threatened by both detectives. This violation of my rights happened in the interrogation room, both on audio and video, and my appellate lawyer Tricia Blanchette failed to argue completely on this issue and bring this CD Disc, into evidence for argument. I would now ask that this interrogation evidence be completely looked at along with the rest of my case? Exhibit 6 [or B].

ECF No. 1 at 5-10; ECF No. 1-1 at 10-11.

B. Standard 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 a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly 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. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 323 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

C. Habeas Corpus Standard of Review

1. Generally

Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320, 336 (1997); Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362 (2000). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.

a. Deference to State Court Decisions

Courts afford deference to state courts' resolutions of the habeas claims of state prisoners. See Bell v. Cone, 543 U.S. 447, 455 (2005). The Supreme Court has provided further guidance regarding the deference due to state-court decisions. Harrington v. Richter, 562 U.S. 86 (2011); Cullen v. Pinholster, 131 S.Ct. 1388 (2011). To obtain habeas relief from a federal court, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. “[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102. The Court further stated: “If this standard is difficult to meet, that is because it was meant to be.” Id.; see Richardson v. Branker, 668 F.3d 128, 137-44 (4th Cir. 2012) (quoting Harrington extensively and reversing district court's grant of writ based on his ineffective assistance of counsel claims).

In interpreting § 2254(d)(1) and discussing the federal courts' role in reviewing legal determinations made by state courts, the United States Supreme Court held as follows:

[A] federal court may grant a writ of habeas corpus if the relevant state-court decision was either (1) “contrary to . . . [clearly] established Federal law as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.

Williams v. Taylor, 529 U.S. 362, 404-05 (2000) (quoting from § 2254(d)(1)). “Clearly established Federal law in § 2254(d)(1) refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams, 529 U.S. at 412). In considering whether a state-court decision is “contrary to” clearly established federal law, the federal court may not grant relief unless the state court arrived at a conclusion opposite to that reached by the Supreme Court on a legal question, the state court decided the case differently than the Court has on facts that are materially indistinguishable, or if the state court “identifie[d] the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applie[d] that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 405-13. The “unreasonable application” portion of § 2254(d)(1) “requires the state court decision to be more than incorrect or erroneous[,]” it “must be objectively unreasonable,” which is a higher threshold. Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citation omitted).

Section 2254(e)(1) requires the federal court give a presumption of correctness to statecourt factual determinations and provides that a petitioner can only rebut such a presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Accordingly, a habeas petitioner is entitled to relief under § 2254(d)(2), only if he can prove, by clear and convincing evidence, that the state court unreasonably determined the facts in light of the evidence presented in state court.

b. Ineffective Assistance of Counsel

The Sixth Amendment provides a criminal defendant the right to effective assistance of counsel in a criminal trial and first appeal of right. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court announced a two-part test for adjudicating ineffective assistance of counsel claims. First, a petitioner must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 687. Second, the petitioner must show that this deficiency prejudiced the defense. Id. at 694. The United States Supreme Court's 2011 decisions cited previously elaborate on the interplay between Strickland and § 2254, noting the standards are “both highly deferential,” and “when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal quotation marks omitted); Pinholster, 131 S.Ct. at 1403. When a petitioner raises in a § 2254 habeas petition an ineffective-assistance-of-counsel claim that was denied on the merits by a state court, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable[,]” not “whether defense counsel's performance fell below Strickland's standard.” Harrington, 562 U.S. at 101. “For purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Id. (citing Williams, 529 U.S. at 410) (emphasis in original). “A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id.

2. Procedural Bar

Federal law establishes this court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person “is in custody in violation of the Constitution or laws or treaties of the United States[,]” and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. 28 U.S.C. § 2254(a)-(b). The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require that a habeas petitioner first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.

a. Exhaustion

Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:

(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court, shall not be granted unless it appears that-

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B) (i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.

(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.

The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.

In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal; or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767 (S.C. 1976). If the PCR court fails to address a claim as is required by section 17-27-80 of the South Carolina Code, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will result in the application of a procedural bar by the South Carolina Supreme Court. Marlar v. State, 653 S.E.2d 266, 267 (S.C. 2007). Strict time deadlines govern direct appeals and the filing of a PCR in the South Carolina courts. A PCR must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.

Furthermore, in filing a petition for habeas relief in the federal court, a petitioner may present only those issues that were presented to the South Carolina Supreme Court or the South Carolina Court of Appeals. See State v. McKennedy, 559 S.E.2d 850, 853 (S.C. 2002) (holding “that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error.”) (quoting In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief, 471 S.E.2d 454, 454 (S.C. 1990)).

b. Procedural Bypass

Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue 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.

The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, 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 United States Supreme Court explains: [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. Reed v. Ross, 468 U.S. 1, 10-11 (1984).

However, if a federal habeas petitioner can show both (1) “‘cause' for noncompliance with the state rule[,]” and (2) “‘actual prejudice resulting from the alleged constitutional violation[,]'” the federal court may consider the claim. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 23, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986).

If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met, and the rules of procedural bar apply. See Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996).

3. Cause and Actual Prejudice

Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the South Carolina Supreme Court in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or that a “fundamental miscarriage of justice” has occurred. Murray, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor that hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Id. Absent a showing of cause, the court is not required to consider actual prejudice. Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.

IV. Analysis

a. Procedurally-Barred Grounds

Respondent argues Petitioner's claims in Grounds Two, Four, and Five are procedurally defaulted because these grounds were not raised on appeal from the denial of his PCR application. ECF No. 39 at 34-35. Because the claims in Grounds Two, Four, and Five were not ruled upon by the South Carolina appellate courts, they are not preserved for review. See, e.g., Coleman v. Thompson, 501 U.S. 722 (1991) (holding issue not properly raised to state's highest court, and procedurally impossible to raise there now, is procedurally barred from review in federal habeas). Consequently, federal habeas review of this claim is barred absent a showing of cause and actual prejudice, or actual innocence. Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Matthews v. Evatt, supra.

1. Cause and Prejudice

Petitioner has not shown sufficient cause and prejudice to excuse the default of his Grounds Two, Four, and Five claims. In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Petitioner has failed to meet this burden. Thus, his claim is procedurally barred from consideration by this court and should be dismissed. See 28 U.S.C. § 2254; Rodriguez v. Young, 906 F.2d 1153, 1159 (7th Cir. 1990) (“Neither cause without prejudice nor prejudice without cause gets a defaulted claim into Federal Court.”); Mazzell v. Evatt, 88 F.3d 263, 269 (4th Cir. 1996) (holding that to show prejudice, a petitioner must show that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different); Rodriguez, 906 F.2d at 1159 (holding a fundamental miscarriage of justice occurs only in extraordinary cases, “where a constitutional violation has probably resulted in the conviction of one who is actually innocent”) (citing Murray, 477 U.S. 478).

The existence of cause must ordinarily turn on whether the prisoner can show some objective factor external to the defense impeded counsel's or his efforts to comply with the state's procedural rule. Murray, 477 U.S. at 488. Petitioner fails to articulate cause for procedurally defaulting on this claim. Petitioner had a trial, a direct appeal, a PCR hearing, and a PCR appeal in which to raise these issues. However, he failed to preserve these issues for habeas review. Accordingly, Petitioner cannot establish cause and prejudice.

In the alternative, Petitioner must show a miscarriage of justice. To demonstrate a miscarriage of justice, Petitioner must show he is actually innocent. Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 622 (1998). Petitioner cannot establish that the errors he complains of probably resulted in the conviction of an innocent person. Schlup v. Delo, 513 U.S. 298, 327 (1995). To pass through the actualinnocence gateway, a petitioner's case must be “truly extraordinary.” Id. The court's review of the record does not support a showing of actual innocence. Therefore, the procedural bar applies to Petitioner's Grounds Two, Four, and Five claims.

b. Merits

i. Ground One-Ineffective Assistance of Trial Counsel

1. Admission of DNA/Contamination Argument

Petitioner argues his trial counsel was ineffective for failing to object to and preserve for appeal the admission of DNA evidence because of the allegation of possible cross-contamination. ECF Nos. 1 at 5; 1-1 at 10.

In denying this claim, the PCR court reviewed the trial transcript and noted trial counsel filed a pre-trial motion to suppress the DNA evidence due to potential contamination. App. 117172. The PCR court observed that officers testified during the motion hearing about arriving to the crime scene, the preservation of the scene, the collection of and processing of evidence, and the preservation of the evidence. App. 1172. The PCR court noted the trial court denied Petitioner's motion explaining the trial court found the evidence and testimony about the collection and preservation of the evidence was sufficient to allow the admissibility of the evidence. Id. The PCR court explained the trial court found the contamination argument went to the weight of the evidence, not the admissibility. Id. The PCR court further explained trial counsel failed to make a contemporaneous objection to the DNA evidence when it was offered at trial, therefore not preserving this issue on appeal. Id. The PCR court found, however, that Petitioner failed to present any evidence that the DNA sample was contaminated or that the procedures used by SLED were unreliable, and thus failed to show any resulting prejudice from trial counsel's failure to preserve or further develop this issue. App. 1172-74. The PCR court also found arguments concerning the suppression of the DNA evidence would not have been meritorious on appeal even if the issues were properly preserved. App. 1174-83.

Respondent moves for summary judgment on this claim arguing there is no merit on the ineffective assistance of counsel claim as the trial court did not err in admitting the DNA evidence because the allegation of potential cross contamination went to the weight and not the admissibility. ECF No. 39 at 42-51.

In his Response, Petitioner cites to the case law that he alleges a court should use when evaluating an ineffective assistance of counsel claim for failing to file a suppression motion. ECF No. 61 at 4.

The undersigned finds Petitioner has failed to show the PCR court unreasonably applied United States Supreme Court precedent in deciding this issue. Petitioner has also not shown by clear and convincing evidence that the PCR court reached an unreasonable factual determination of this issue given the evidence and record before it. The undersigned finds the pretrial hearing and trial testimony, including testimony about officers securing the crime scene and collecting and preserving the blood evidence, supports the PCR court's finding that the trial court would have been well within its discretion in denying any objection to the DNA evidence on the contamination ground. See App.1171-72. This evidence also supports the PCR court's finding that the DNA contamination ground would not have been meritorious on appeal and therefore Petitioner failed to show he was prejudiced by his counsel's failure to preserve this issue. Id. The undersigned finds the PCR court's findings are supported by the record and therefore Petitioner has failed to overcome the deferential standard of review accorded the state court's determination of this issue. See Harrington, 562 U.S. at 102-105. The undersigned recommends summary judgment be granted as to Ground One ineffective assistance of trial counsel/contamination claim.

2. Admission of DNA/ Inadequate Consent and No Probable Cause

In Ground One, Petitioner alleged ineffective assistance of trial counsel in failing to object to the admission of DNA evidence at the appropriate time and to preserve the issue for appeal. ECF No. 1 at 7.

The PCR court denied these Ground One claims finding Petitioner failed to show his counsel was deficient or that he was prejudiced by any alleged deficiency. App. 1174-83. The PCR court reviewed the trial and motion hearing transcripts and found the DNA evidence was properly admitted. Id. The PCR court first examined the circumstances surrounding the taking of the first buccal swab by Florida law enforcement. App. 1176-77. The PCR court found Petitioner consented to the first sample finding the testimony of the Florida officers to be credible that they did not threaten or mislead Petitioner to get him to give the buccal sample, but informed Petitioner he was being investigated for a series of crimes and asked Petitioner to give a sample. App. 1176. The PCR court found that both the officer and the voluntary consent form Petitioner signed informed Petitioner he could refuse to consent to giving the buccal sample. App. 1175-76. As to the second buccal sample, the PCR court found sufficient probable cause was proven during the Schmerber hearing to authorize the taking of the second buccal sample. App. 1180-81. In support of this finding the PCR court referenced testimony from witnesses and family members of the victim who identified Petitioner as the perpetrator, and the law enforcements' investigation that also developed Petitioner as a suspect. Id. The PCR court also found Petitioner could not establish prejudice because the first sample would have been inevitably discovered, and the second sample would have eventually been taken as a search incident to arrest under the holding in Maryland v. King, 133 S.Ct. 1958 (2013). App. 1181-83.

Respondent moves for summary judgment on this claim arguing Petitioner failed to show his counsel was ineffective because the state courts did not err in admitting this evidence because Petitioner voluntarily consented to the taking of the first sample, and the second sample was obtained pursuant to a lawful order. ECF No. 39 at 51-83.

In his Response to Respondent's summary judgment motion, Petitioner cites to case law concerning search warrants, probable cause for searches, and illegal searches and seizures. ECF No. 61 at 5-6. Petitioner argues the DNA evidence was illegally obtained and should be suppressed as fruit of the poisonous tree. Id. Petitioner also argues he asked for an attorney during his interview and at that point the interview should have stopped. Id. at 6-7.

The undersigned finds the PCR court made reasonable findings of fact in denying Petitioner's claims concerning trial counsel's failure to preserve the admission of the DNA evidence for appellate review. In light of evidence introduced at Petitioner's pre-trial hearing and trial concerning the admissibility of the two buccal samples, the court cannot find trial counsel's failure to further object to the DNA evidence affected the outcome of Petitioner's trial under Strickland. See App. 1174-83. Evidence in the record supports the PCR court's findings that the DNA admission issues would not have been meritorious on appeal, even if the issues were properly preserved. Id. In support of this finding, the PCR court noted the trial court's findings that Petitioner consented to the search and there was probable cause to support the issuance of a search warrant for the DNA evidence. Id. The PCR court further found the DNA searches would have also been proper due to the results of the investigation, and as a search incident to arrest. Id. The undersigned has reviewed the record and finds Petitioner has failed to present sufficient evidence to show that the state courts' rejection of this claim was contrary to, or involved an unreasonable application of, clearly established federal law. See Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (holding that federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it resulted in a decision that was an unreasonable determination of the facts based on the evidence presented in the state court proceeding). The undersigned also finds the PCR court adequately supported its finding that Petitioner failed to show any prejudice stemming from the lack of trial court objection to the DNA evidence because the DNA search would have been appropriate as a search incident to arrest under Supreme Court precedent. Accordingly, the undersigned recommends the Ground One claim against trial counsel concerning the admission of DNA be denied.

ii. Grounds One and Three- Ineffective Assistance of Appellate Counsel

In Ground One Petitioner contends his appellate counsel was deficient for failing to raise and argue the DNA contamination and improper search and seizure issue on direct appeal. ECF Nos. 1 at 5; 1-1 at 10. In Ground Three, Petitioner alleges his appellate counsel was ineffective for failing to properly raise issues with citation to legal authority, and failing to reply to erroneous information in the State's brief. ECF No. 1 at 9.

The PCR court reviewed appellate counsel's testimony at the PCR hearing that she filed the appellate brief as part of the Appellate Practice Project and she did not have a reason for failing to cite to the record, and that she did not cite to any legal authority because she could not find any to support her position. App. 1185. Appellate counsel also testified she believed her representation ended when she filed her final brief, and that she was not responsible for filing any replies. Id. Chief Appellate Defender Robert Dudek presented testimony about the Appellate Practice Project in which appellate counsel participated. App. 1186. Dudek testified that Petitioner's appeal was dismissed because the issues were abandoned for failure to cite to legal authority, the issues on appeal were not raised in the same manner as trial, and the issues were not properly preserved. Id. The PCR court noted that although Dudek testified he believed appellate counsel was deficient in her representation, he could not cite to a meritorious issue counsel failed to raise. Id. The PCR court found Petitioner failed to show his appellate counsel's deficient representation prejudiced Petitioner as none of the issues raised were properly preserved for appellate review. Id.

Respondent moves for summary judgment arguing the PCR court properly denied this claim explaining there was no merit to any appellate issue raised on direct appeal because those issues were not properly preserved for appellate review by trial counsel, and even if they had been preserved, there was no factual or legal merit to the issues raised. ECF No. 39 at 84-94.

In his opposition to summary judgment, Petitioner cites to ineffective assistance of appellate counsel caselaw. ECF No. 61 at 4-5.

The undersigned finds the record supports the PCR court's factual findings that Petitioner failed to show that he was prejudiced by his appellate counsel's deficient representation. The undersigned further finds Petitioner has not shown the PCR court's analysis of this issue misapplied clearly established federal law or, even if there was an error, that it was unreasonable. See Williams, 529 U.S. at 410. Accordingly, the undersigned finds Petitioner is not entitled to federal habeas relief on ineffective assistance of appellate counsel claims, and the undersigned recommends these grounds be dismissed. See Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (holding that federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it resulted in a decision that was an unreasonable determination of the facts based on the evidence presented in the state court proceeding).

V. Conclusion and Recommendation

Based upon the foregoing, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 40, be GRANTED and the Petition be DENIED.

IT IS SO RECOMMENDED.

The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”

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 Post Office Box 2317 Florence, South Carolina 29503

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).