Opinion
Civil Action 6:20-3973-JD-KFM
05-17-2021
Alonza Dennis, Petitioner, v. Warden of Perry Correctional Institution, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
The petitioner, a state prisoner proceeding pro se, 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 Perry Correctional Institution in the South Carolina Department of Corrections. He was indicted by the Charleston County Grand Jury in October 2009 for assault and battery with intent to kill (“ABWIK”) (2009-GS-10-08108), possession of a weapon during the commission of a violent crime (2009-GS-10-08112), and attempted armed robbery (2009-GS-10-08113) (doc. 23-2 at 203-07). On March 14, 2011, the petitioner proceeded to a jury trial (doc. 23-1 at 1-3). Andrew Grimes (“Mr. Grimes”) and Megan Ehrlich (“Ms. Ehrlich”) (collectively “trial counsel”) represented the petitioner, and Jennifer Shealy (“Ms. Shealy”) and Timmy Finch (“Mr. Finch”) represented the State (id. at 3). The jury convicted the petitioner of ABWIK and possession of a weapon during the commission of a violent crime but not attempted armed robbery (doc. 23-2 at 99). Following the jury's verdict, the petitioner was sentenced to life without parole for ABWIK and five years for possession of a weapon during the commission of a violent crime (id. at 108).
Underlying Case Facts
According to the State, on June 22, 2009, the petitioner went to La Seto Gibson's (“Quan”) house, where Quan, Kaylab Wright (“Wright”) and Trevor Gibbs (“Gibbs”) were located (doc. 23-1 at 119-20, 167, 459-65). Quan called Moses Alford (“Alford”) to see if he could purchase some clothing (id. at 168). Alford owned his own clothing business and would occasionally bring clothes to customers (id. at 164-65). Alford agreed to meet Quan at a gas station (id. at 168-70).
Gibbs testified that the petitioner indicated that he wanted to rob Alford (doc. 23-1 at 231). However, Quan, Wright, and Gibbs left the petitioner at Quan's house because they did not want to be involved in a robbery (id. at 231-32). Quan's grandfather drove the petitioner to the gas station where Quan, Wright, and Gibbs were located, and the petitioner got into Quan's car (id. at 232-35). Quan and Wright exited Quan's car and went to Alford's car to look at the clothing (id. at 235). Wright then returned to Quan's car because he did not like any of the clothes (id. at 236). At some point, Wright took the petitioner's gun from him, and the petitioner wanted it back (id. 236-37). Wright gave the petitioner his gun back and told the petitioner to not do anything stupid (id.). The petitioner then exited Quan's car (id. at 238-39).
While Alford was looking in the back seat of the car for an article of clothing, the petitioner approached Alford's car (doc. 23-1 at 181-82). The petitioner pointed a gun at Alford and said “give me everything” (id. at 182-83). When Alford reached for his gun, the petitioner shot Alford in the arm, leg, and back (id. at 184). The petitioner then ran into nearby woods (id. at 186)
Peggy Owen (“Owen”) testified that on the day of the shooting, she saw the petitioner hide behind a car in her driveway (doc. 23-1 at 295). Owen also saw the petitioner run away when police got close to the area (id. at 296). Shortly thereafter, a canine unit found the petitioner (id. at 313).
After the canine unit found the petitioner, the police brought him back to the gas station (doc. 23-1 at 42-43). Detective Nick Wagner conducted a gun residue test on the petitioner, and Detective Albert Casale (“Detective Casale”) read the petitioner his Miranda rights (id. at 43). According to Detective Casale, the petitioner cooperated and did not seem to be confused or intoxicated (id. at 47, 50). The petitioner told Detective Casale that he “didn't really want to talk at that time” (id. at 53). Detective Casale then secured the petitioner in the police car (id. at 54). The petitioner was then transported to police headquarters (id. at 273).
At the police headquarters, and approximately five to six hours after Detective Casale advised the petitioner of his rights at the gas station, Detective Kip Cooke (“Detective Cooke”) advised the petitioner of his rights (doc. 23-1 at 59, 131). While Detective Cooke was advising the petitioner of his rights, Detective Charles Lawrence (“Detective Lawrence”) entered the room (id. at 59). The petitioner signed a waiver of rights form, and Detective Casale left the room (id. at 63). Neither Detective Cooke nor Detective Lawrence knew that the petitioner had previously informed Detective Casale that he did not want to talk at that time (id. at 69, 101). The petitioner never told Detective Lawrence that he did not want to talk and never asked for an attorney (id. at 64, 83-84). Detective Lawrence began the interview at 9:04 p.m., about five or six hours after the petitioner told Detective Casale that he did not want to talk, and the petitioner made a statement essentially denying any involvement in the robbery and indicating that he did not know why he was under arrest (id. at 85). The interview lasted approximately two hours (id. at 83).
On June 29, 2009, after learning new developments in the case, Detective Lawrence had the petitioner transported to the police headquarters to interview him again (doc. 23-1 at 86-87). The petitioner was advised of his Miranda rights and then signed the waiver of rights form (id. at 88-89). Although the petitioner claimed that Detective Lawrence told him that if the federal authorities picked up his case it would be hard on him, Detective Lawrence testified that he never threatened to turn over the petitioner's case to the federal authorities (id. at 84-85, 113-14). During the interview, Detective Lawrence informed the petitioner that Alford identified him as the shooter, and the petitioner then provided a statement (id. at 92-93). Detective Lawrence testified that, in the statement, the petitioner iterated that Quan, Wright, and Gibbs wanted to rob someone and wanted the petitioner to be involved (id. at 108). The petitioner indicated that they all met Alford at the gas station, and he was supposed to get some money and clothes from Alford (id. at 108-09). The petitioner stated that while two of the others were looking at clothes, the petitioner went to Alford's car and shot at him five times (id. at 109). The petitioner said he then fled the scene on foot (id.)
Motion for Reconsideration
The petitioner filed a motion for reconsideration on March 25, 2011, asking the sentencing court to reconsider his sentence and arguing that the “[c]ourt violated the Sixth Amendment and section 17-25-45 when it considered the computer printouts that were attached to Court's Exhibit 5 to find that Mr. Dennis's 1987 conviction qualified as a most serious offense under South Carolina law” (doc. 23-3 at 1-15). The court denied the motion by an order filed on May 12, 2011 (doc. 23-4 at 1).
Direct Appeal
The petitioner filed a notice of appeal before the South Carolina Court of Appeals, raising the following four grounds:
1. Did the trial court err in allowing the state's witness, Trevor Gibbs, to testify that Dennis tried to sell a gun to him which Dennis allegedly said he had stolen the night before, and to testify that Dennis allegedly said he needed a blast (crack), where these statements were prejudicial to Dennis and put his character into evidence?
2. Did the trial court err in refusing to charge the jury on ABHAN when Dennis testified that he did not intend to shoot the victim but was only trying to scare him?
3. Did the trial court err in sentencing Dennis to LWOP when the state did not provide sufficient documentation that his out of state conviction for rape in the first degree qualified as a most serious offense under S.C. law because it did not meet the elements to be a strike offense which violated Dennis's Sixth Amendment rights?
4. Did the trial court err in admitting Dennis's two statements into evidence when he told the investigators after the first statement that he did not want to talk, and was coerced into making the second statement when the investigator threatened to send his case to the federal authorities?(Docs. 27 at 1-2; 23-6 at 4). The Court of Appeals affirmed the trial court on all four grounds on April 3, 2013 (doc. 23-7 at 1-11). The petitioner filed a petition for rehearing on April 18, 2013 (doc. 23-8 at 1-15). The Court of Appeals denied this petition on May 24, 2013 (doc. 23-9 at 1).
The petitioner then filed a petitioner for writ of certiorari on August 21, 2013, arguing that the Court of Appeals erred in affirming the trial court on the same four grounds (doc. 23-10 at 1-20). By order filed on August 22, 2014, the South Carolina Supreme Court denied the petition (doc. 23-12 at 1). The Court of Appeals issued the remittitur on August 27, 2014 (doc. 23-13 at 1).
PCR
On September 4, 2014, the petitioner filed a pro se application for post-conviction relief (“PCR”) (doc. 23-2 at 110-116). In the application, the petitioner raised the following three grounds for relief:
Grounds:
(a) Coer[c]ion of the officer and testimony of the co[-]defendant was not preserved.
(b) My arrest didn't have any probable cause.
(c) The victim and the co[-]defendant[‘s] testimony didn't prove the guilt of the defendant.
Facts in Support:
(a) Counsel fail[ed] to prepare and preserve the coercion of the officer[‘s] testimony and the testimony of the co[-]defendant saying crack.
(b) Counsel fail[ed] to prepare and investigate[] the victim's testimony saying one thing and co[-]defendant say the other.
(c) Counsel fail[ed] to prepare[] and investigate[] my arrest for probable cause.(Doc. 23-2 at 112). An evidentiary hearing was held on January 12, 2017 (id. at 122). The petitioner was present and represented by Rodney Davis (id.). The respondent was represented by Alicia Olive (id.). The petitioner and Ms. Ehrlich testified at the hearing (id. at 126-75). At the hearing, the petitioner also proceeded forward on an allegation that his counsel was ineffective for failing to obtain a copy of Detective Lawrence's personnel file and impeach him with the file. The respondent filed a motion to dismiss the allegations regarding his arrest and the lack of evidence to establish his guilt as non-cognizable grounds for relief pursuant to the post-conviction relief act, and the petitioner did not object to the motion. Consequently, the PCR court dismissed those grounds. Additionally, by written order filed on December 13, 2017, the PCR court dismissed the remaining claims in the petitioner's PCR application with prejudice, finding that (1) counsel was not deficient in failing to present further argument on the suppression of the petitioner's statements based on law enforcement's coercion tactics; (2) counsel was not deficient in failing to further prepare and investigate the inconsistencies in testimony; (3) counsel was not deficient in failing to further investigate the facts surrounding the petitioner's arrest; and (4) counsel was not deficient in failing to obtain a copy of Detective Lawrence's personnel file and impeach him with said file (doc. 23-2 at 198-201).
PCR Appeal
The petitioner, represented by Victor R. Seeger, appealed the PCR court's decision by filing a petition for writ of certiorari to the Supreme Court of South Carolina on July 23, 2018 (doc. 23-14 at 1-20). The petitioner raised the following issue:
Whether trial counsel provided ineffective assistance when she failed to obtain Detective Lawrence's personnel file to impeach his crucial testimony at the suppression hearing, where trial counsel was on notice that impeaching Detective Lawrence's credibility was paramount in Petitioner's case?(Id. at 3). The Supreme Court transferred the appeal to the South Carolina Court of Appeals, and on October 8, 2020, the Court of Appeals issued an order denying the petitioner's writ of certiorari (doc. 23-16). The remittitur was issued on October 29, 2020, and filed on November 6, 2020 (doc. 23-17 at 1).
FEDERAL PETITION
On November 13, 2020, the petitioner filed the instant § 2254 petition, raising the following grounds for relief:
Ground One: The sentence was imposed in violation of the Constitution or laws of the United States.
The ineffective assistance of counsel led to sentencing error that is cognizable § 2255 constitutional violation; moreover, the evidence used rendered trial fundamentally unfair.
Ground Two: Counsel's failure to request the trial judge to incorporate the Jencks Act once weapon was introduced into trial.
State witnesses made two conflicting stories about the gun petitioner possessed during the day in question. One statement clearly confirmed petitioner's description of the gun he (petitioner) possessed that day, thus giving credence to his innocence.
Ground Three: Self incrimination
This Fifth Amendment right became infringed upon when being questioned by police officers and I told them that I didn't want[]
to make a statement[.] Officers had already used good cop bad cop technique upon me in questioning in which caused me to get confused and mix up my statement. This prejudice tactic le[]d to me being coerced by arresting officer.
Ground Four: Trial judge failed to apply the ABAHN criteria when the evidence suggested to do so.
The evidence and the conflicting stories suggested that petitioner deserved a reduction in sentence consideration due to lack of probable cause a new trial.(Doc. 1 at 5-10). On March 11, 2021, the respondent filed a motion for summary judgment (doc. 24) and a return and memorandum (doc. 23). On March 12, 2021, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the motion to dismiss and motion for summary judgment procedures and the possible consequences if he failed to respond adequately (doc. 25). The petitioner filed a response in opposition to the motion for summary judgment on April 15, 2021 (doc. 28). On April 22, 2021, the respondent filed a reply (doc. 31).
APPLICABLE LAW AND ANALYSIS
Summary Judgement 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. 23 at 8-9).
Procedural Bar
Procedural bypass, sometimes referred to as procedural bar or 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.Reed v. Ross, 468 U.S. 1, 10-11 (1984).
“[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).
Federal Habeas Review
Because the 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 (1997); Breard v. Pruett, 134 F.3d 615 (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 in the State court proceeding.28 U.S.C. § 2254(d). “[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.” Williams v. Taylor, 529 U.S. 362, 410 (2000). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision, ” and “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 101-102 (2011) (citations omitted). Moreover, state court factual determinations are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Ground One
In Ground One, the petitioner argues that (1) his trial counsel's ineffective assistance led to a sentencing error that was in violation of federal law and (2) the evidence used rendered the trial fundamentally unfair (doc. 1 at 5). The respondent argues that these broad and unsupported assertions of error should be deemed insufficiently pled (doc. 23 at 11).
The undersigned agrees that the claim set forth in Ground One is too vague to warrant relief. See generally Rule 2, Rules Governing Section 2254 Cases (stating a petition filed pursuant to § 2254 must specify all the grounds for relief available to the petitioner and state the facts supporting each ground); Bullard v. Chavis, No. 96-7614, 1998 WL 480727, at *2 (4th Cir. Aug. 6, 1998) (“[I]n order to substantially comply with the Section 2254 Rule 2(c), a petitioner must state specific, particularized facts which entitle him or her to habeas corpus relief for each ground specified. These facts must consist of sufficient detail to enable the court to determine, from the face of the petition alone, whether the petition merits further habeas corpus review.”) (citation omitted); Petrick v. Thorton, No. 1:09CV551, 2014 WL 6626838, at *5 (M.D. N.C. Nov. 21, 2014) (collecting cases). The petitioner's ground and the facts in support are lacking in substance and detail, and his general references to a “sentencing error that is cognizable” and “evidence used rendered trial fundamentally unfair” do not inform the court or the respondent of his legal basis for relief. The court is unable to determine from the face of the petition whether it merits habeas corpus review. See Bullard, 1998 WL 480727, at *2. Although the court is required to liberally construe the petitioner's pro se pleadings, it is not required to invent arguments or “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir.1985). Thus, the undersigned finds that Ground One is insufficiently pled on vagueness grounds and thus should be dismissed.
Moreover, even if Ground One was properly pled, the respondent highlights that this claim is procedurally defaulted because it was not raised in the PCR action (doc. 23 at 12). As set out above, the petitioner did not raise any ineffective assistance of counsel claims regarding a sentencing error in his PCR application. However, because the claim that “the evidence used rendered trial fundamentally unfair” is so vague and the petitioner raised issues of ineffective assistance of counsel related to testimony presented at trial, it is impossible to ascertain whether the petitioner raised this particular issue in his PCR application. Nevertheless, the petitioner only raised one issue in his PCR appeal, which did not have any bearing on the “evidence used” at trial but rather dealt with evidence that was not used or even obtained for impeachment purposes. Specifically, the petitioner appealed regarding trial counsel's failure to obtain Detective Lawrence's personnel file and impeach his testimony with the file. Therefore, because the petitioner did not raise the issues of a sentencing error or that “evidence used rendered trial fundamentally unfair” in his PCR application and PCR appeal, these claims are procedurally defaulted. See, e.g., Tucker v. Catoe, 221 F.3d 600, 615 (4th Cir. 2000) (finding petitioner's claim was procedurally defaulted when, after PCR court denied the claim, petitioner did not raise the issue on appeal); Cheeks v. Joyner, C. A. No. 0:17-cv-02876-DCC, 2018 WL 3751419, at *5-7 (D.S.C. Aug. 8, 2018) (adopting report and recommendation finding that petitioner's claim was procedurally barred because he failed to raise the issue in his PCR appeal). Additionally, in his response to the motion for summary judgment, the petitioner fails to articulate either cause or prejudice for the procedural default or that some fundamental miscarriage of justice will result if this claim is not considered. Consequently, the undersigned recommends that the district court grant summary judgment for the respondent on Ground One.
The respondent also argues that Ground One fails on the merits (doc. 23 at 12). However, because the undersigned finds that Ground One is impermissibly vague and procedurally defaulted, this argument need not be addressed. See Karsten v. Kaiser Found. Health Plan, 36 F.3d 8, 11 (4th Cir.1993) (noting that while it is always tempting to discuss the merits as an alternative reason for a conclusion, any discussion on an issue after finding that it is procedurally barred is dicta).
Ground Two
The petitioner further argues that his trial counsel was ineffective for failing to seek application of “the Jencks Act once weapon was introduced [at] trial” (doc. 1 at 7). In support of this argument, the petitioner asserts that the State's witnesses gave conflicting statements about “the gun the petitioner possessed during the day in question, ” and “one of the statements clearly confirmed the petitioner's description . . ., thus giving credence to his innocence” (id.).
The respondent argues that the petitioner failed to raise this claim in his PCR application and, thus, Ground Two is also procedurally defaulted (doc. 23 at 13). The undersigned agrees. The petitioner argued in his PCR application that his trial counsel was ineffective for “failing to prepare and investigate the victim's testimony saying one thing and co-defendant saying the other” (doc. 23-2 at 112). However, the petitioner did not raise the specific issue of the Jencks Act, and the PCR court did not rule on that issue. Further, even if the petitioner had raised the issue of his trial counsel failing to seek application of the Jencks Act, the petitioner would have needed to file a motion to alter or amend judgment pursuant to Rule 59(e), SCRCP to preserve the issue for appellate review since the PCR court did not rule on the issue. However, the petitioner failed to do so. Moreover, as set out above, the petitioner also did not raise this issue in his PCR appeal. The petitioner has also failed to articulate either cause or prejudice for the procedural default or that some fundamental miscarriage of justice will result if this claim is not considered. Consequently, the undersigned finds that Ground Two is procedurally defaulted and recommends that the district court grant summary judgment for the respondent on this ground.
For matters in which there is no PCR ruling prior to November 5, 2007, counsel for the petitioner must make a motion to alter or amend judgment pursuant to Rule 59(e), SCRCP to preserve an issue for appellate review if the PCR court failed to address a claim as is required by South Carolina Code § 17-27-80. Marlar v. State, 653 S.E.2d 266, 267 (S.C. 2007); Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009).
Because the undersigned finds that Ground Two is procedurally defaulted, the respondent's arguments on the merits will not be addressed. See Karsten, 36 F.3d at 11.
Ground Three
In Ground Three, the petitioner alleges that his Fifth Amendment right against self-incrimination was infringed upon when he was questioned by police officers after he told the officers that he did not want to make a statement (doc. 1 at 8). The petitioner asserts that the officers used the “good cop bad cop technique” on him, which was prejudicial, caused him “to get confused and mix up [his] statement, ” and led to him being coerced (id.). The respondent submits that, of the two statements in question, one fails because the Court of Appeals reasonably applied federal law to the facts of the case and the other is procedurally defaulted (doc. 23 at 14-17).
In his direct appeal, the petitioner argued that the trial court violated his Fifth Amendment right by admitting into evidence his statements on June 22 and 29, 2009. The Court of Appeals affirmed the trial court's decisions as to both statements. Specifically regarding the June 22, 2009 statement, the Court of Appeals relied on Miranda v. Arizona, 384 U.S. 436 (1966), Michigan v. Mosley, 423 U.S. 96 (1975), and State v. Benjamin, 549 S.E.2d 258 (S.C. 2001) to affirm based on the petitioner's right to silence being “scrupulously honored” (doc. 23-7 at 10). Further, regarding the petitioner's June 29, 2009 statement, the Court of Appeals relied on State v. Corley, 457 S.E.2d 1 (S.C. Ct. App. 1995) to affirm, noting that “an issue raised to but not ruled on by the trial court is not preserved for review” (id.). The South Carolina Supreme Court denied the petition for writ of certiorari to review the Court of Appeals' decision (doc. 23-12 at 1).
The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself[.]” U.S. Const. amend. V. To protect this constitutional right against self-incrimination, the Supreme Court has established “procedural safeguards” that officers must comply with to subject a suspect to custodial interrogation. Miranda, 384 U.S. 436, 478-79. Suspects must be informed of their “right to remain silent” and their “right to the presence of an attorney.” Id. at 444. Further, a suspect has the “right to cut off questioning” by invoking the right to remain silent. Id. at 473-74. Thus, if a suspect “indicates in any matter, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Id. The suspect's invocation of this right to cut off questioning must be “unambiguous.” Berghuis v. Thompkins, 560 U.S. 370, 381-82 (2010).
In Michigan v. Mosley, the Supreme Court held that “that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning' was ‘scrupulously honored.'” 423 U.S. 96, 104 (1975). To determine whether a suspect's rights have been scrupulously honored, the Fourth Circuit has identified five “non-exhaustive, non-dispositive factors”:
(1) Whether the police had given the suspect Miranda warnings at the first interrogation and the suspect acknowledged that he understood the warnings;
(2) Whether the police immediately ceased the interrogation when the suspect indicated that he did not want to answer questions;
(3) Whether the police resumed questioning the suspect only after the passage of a significant period of time;
(4) Whether the police provided a fresh set of Miranda warnings before the second interrogation; and
(5) Whether the second interrogation was restricted to a crime that had not been a subject of the earlier interrogation.United States v. Abdallah, 911 F.3d 201, 214 (4th Cir. 2018); see Mosley, 423 U.S. at 100-07. “Despite these factors, the touchstone remains whether a review of the circumstances reveals that the suspect's rights were fully respected.” Abdallah, 911 F.3d at 214 (citations and internal quotation marks omitted).
These factors were adopted in South Carolina state courts in State v. Benjamin, 549 S.E.2d 258, 261-62 (S.C. 2001).
Applying these factors here, the undersigned cannot conclude that the Court of Appeals' decision to uphold the trial court's admission of the petitioner's June 22, 2009 statement was contrary to or an unreasonable application of federal law. It is undisputed that Detective Casale read the petitioner his Miranda rights at the first interrogation at the gas station, and the petitioner indicated that he did not really want to talk at that time. Detective Casale's questioning then ceased. Further, the five or six hours that passed between the first and second interrogations was not a momentary cessation but rather “a significant period of time.” See Abdallah, 911 F.3d at 214 (noting that while there is no “durational minimum before resuming questioning, [courts] are mindful that to permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda ....”) (citation and internal quotation marks omitted); Mosley, 423 U.S. at 105-06 (considering two hours to be a significant period of time). Additionally, there are no allegations that the petitioner was subjected to repeated efforts to wear down his resistance during that five or six hour time period. See Weeks v. Angelone, 176 F.3d 249, 268 (4th Cir. 1999).
Moreover, upon additional questioning at the second interrogation, Detective Cooke provided the petitioner with a “fresh set” of Miranda warnings, and the petitioner signed a waiver of rights form. While there are arguments on both sides regarding whether the crime in question at the second interrogation was different from the crime in question at the first interrogation, “the mere fact that a second interrogation involves the same crime as the first interrogation does not necessarily render a confession derived from the second interrogation unconstitutionally invalid under Mosley.” Weeks, 176 F.3d at 269 (collecting cases). In sum, under the totality of the circumstances, the undersigned finds that it was reasonable for the Court of Appeals to conclude that the police scrupulously honored the petitioner's right to cut off questioning with respect to his June 22, 2009 statement.
At trial, the parties disputed whether the petitioner was being questioned solely about trespassing, or also about the shooting, at the first interrogation.
Regarding the petitioner's June 29, 2009 statement, the respondent contends that the petitioner's claim is procedurally defaulted because there is no “state court ruling on the merits to review” regarding the issue of coercion (doc. 23 at 17). During a pretrial hearing on his motion to suppress the statements, the petitioner testified that Detective Lawrence told him that if the federal authorities picked up his case, it would be hard on him (doc. 23-1 at 113-16). However, Detective Lawrence testified that he never told the petitioner that if he did not give a statement the case might be turned over to federal authorities (id. at 106). Trial counsel argued that the petitioner's June 29, 2009 statement should be suppressed due to Detective Lawrence threatening to turn the petitioner's case over to federal authorities if he did not assist law enforcement (doc. 23-1 at 125-31). In analyzing the admissibility of the June 29, 2009 statement, however, the trial court did not address Detective Lawrence or any alleged coercion but rather discussed the factors set out in Mosley. Specifically, the trial court found:
I think under the testimony that I hear that there was - they were questioning him about a trespass charge and if he knew anything else about the shooting that took place [on June 22, 2009], but he didn't sound like he was an actual suspect then at that point on the shooting charges. So then we have seven days later, which I find is a significant period of time. Again, he's advised of his rights, and he waives them and he makes a statement on the shooting charges.
They at that point are focused in on that and have told him at that point what it is they want to talk with him about. I think clearly he gave a voluntary statement at that point, so I think all the requirements for [State v.] Benjamin, [549 S.E.2d. 258 (S.C. 2001)] and that line of cases are met, and so I find that his statement - the state has met the burden of proving that his
statements are freely, voluntarily made, so I'll deny the motion [to suppress].(Doc. 23-1 at 132). The Court of Appeals found that the specific issue of Detective Lawrence's alleged coercion was not preserved for appeal because, even though it was raised by the petitioner, it was not ruled upon by the trial court (doc. 23-12 at 1).
The undersigned finds that the petitioner's claim regarding his June 29, 2009 statement is procedurally defaulted. As discussed above, in addressing this statement, the trial court discussed the factors in Mosley and ultimately found that the statement was “freely, voluntarily made, ” but the trial court never ruled on the specific issue of Detective Lawrence's alleged coercion by threatening to turn the petitioner's case over to federal authorities if the petitioner did not assist law enforcement (doc. 23-1 at 133). As set forth by the Court of Appeals, under South Carolina law, because the petitioner failed to request a specific ruling as to the issue, it was not preserved for appeal. See State v. Dunbar, 587 S.E.2d 691, 693-94 (S.C. 2003) (“In order for an issue to be preserved for appellate review, it must have been raised to and ruled upon by the trial judge. Issues not raised and ruled upon in the trial court will not be considered on appeal.”); State v. McLaughlin, 413 S.E.2d 819, 821 (S.C. 1992) (“Moreover, the trial judge's general ruling that the statements were admissible does not constitute reversible error. McLaughlin's failure to request a more explicit ruling constitutes a waiver to any objection to the judge's general ruling. . . . Finally, since the record supports the judge's implicit ruling that McLaughlin's Miranda rights were voluntarily waived, the failure to make a more detailed ruling is harmless.”). Based upon the foregoing, the undersigned finds that the petitioner's claim regarding his June 29, 2009 statement is procedurally defaulted. See, e.g., Daniels v. Lee, 316 F.3d 477, 486 (4th Cir. 2003) (finding that, absent a showing of cause and prejudice, the petitioner's claim was procedurally barred due to his failure to preserve issue for direct appeal); Sullivan v. Padula, C. A. No. 4:11-2045-MGL, 2013 WL 876689, at *6 (D.S.C. Mar. 8, 2013) (“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.”); Pitts v. Warden, McCormick Corr. Inst., C. A. No. 5:12-950-RBH-KDW, 2012 WL 6212689, at *10 (D.S.C. Nov. 16, 2012) (finding that a petitioner's claim was procedurally barred from federal habeas review because it was not preserved for appellate review in state court), R&R adopted by 2012 WL 6212084 (D.S.C. Dec. 13, 2012); Fuller v. Bazzle, C. A. No. 0:09-cv-00348-PMD, 2010 WL 478842, at *6 (D.S.C. Feb. 4, 2010) (finding that a petitioner's claim was procedurally barred when the petitioner failed to preserve the issue for direct appeal in state court). Moreover, in his response to the motion for summary judgment, the petitioner has failed to demonstrate either cause or prejudice for the procedural default or that some fundamental miscarriage of justice will result if this claim is not considered. Consequently, the undersigned recommends that summary judgment be entered for the respondent on Ground Three.
Ground Four
The petitioner further argues that the trial court erred by not including a charge of assault and battery of a high and aggravated nature (“ABHAN”) as a lesser-included offense to his ABWIK charge (doc. 1 at 10). The respondent argues that the petitioner's claim presents a question of state law and thus is not cognizable in a § 2254 petition (doc. 23 at 20).
It is well-settled that “a federal court may . . . grant habeas relief only if it determines that the state court decision is contrary to, or an unreasonably application of Supreme Court jurisprudence[.]” Bell v. Jarvis, 236 F.3d 149, 162 (4th Cir. 2000); see 28 U.S.C. § 2254(d)(1) (allowing habeas review only for claims by state courts that “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”). Moreover, while the Supreme Court has held that capital defendants have a constitutional right to instructions on lesser-included offenses “when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense - but leaves some doubt with respect to an element that would justify conviction of a capital offense, ” the Supreme Court has specifically declined to address this issue in non-capital cases. Beck v. Alabama, 447 U.S. 625, 637, 638 n.14 (1980); see Robinson v. North Carolina Att'y Gen., No. 99-7530, 2000 WL 1793060, at *1 (4th Cir. Dec. 7, 2000) (“[T]he Supreme Court has never held that due process requires lesser-included instructions in non-capital state trials ... [and] a review of decisions from other courts of appeals establishes that there is no consensus on this question.”); Mahaffey v. Warden Perry Corr. Inst., C/A No. 8:20-cv-01880-JD-JDA, 2020 WL 8771345, at *8-9 (D.S.C. Dec. 29, 2020) (finding that petitioner's claim that trial court erred in refusing to charge lesser-included offense was not cognizable on federal habeas review as it raised only questions of state law and no federal constitutional claim was raised since the Supreme Court has not ruled on this in the context of non-capital cases), R&R adopted by 2021 WL 859648, at *1-2 (D.S.C. Mar. 8, 2021).
Here, the petitioner, a non-capital defendant, has presented a claim solely involving the interpretation of South Carolina statutes and case law. Consequently, the undersigned finds that Ground Four is not within the province of a federal habeas court. Estelle v. McGuire, 502 U.S. 62, 63 (1991) (“It was also improper for the Court of Appeals to base its holding on its conclusion that the evidence was incorrectly admitted under state law, since it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”); Wright v. Angelone, 151 F.3d 151, 157 (4th Cir. 1998) (“Because [the petitioner's § 2254] claim, when pared down to its core, rests solely upon an interpretation of [state] case law and statutes, it is simply not cognizable on federal habeas review.”). Therefore, based upon the foregoing, the undersigned recommends that the district court grant summary judgment for the respondent on Ground Four.
The respondent also argues that, even if this claim was cognizable, the facts support the trial court and Court of Appeals' decisions that there was no evidence adduced at trial that mitigated the petitioner's general intent to kill (doc. 23 at 19). However, because this claim solely involves interpretation of South Carolina law, the undersigned will not address the respondent's argument on the merits.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, this court recommends that the respondent's motion for summary judgment (doc. 24) 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 300 East Washington Street 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).