Opinion
C. A. 5:22-3541 -SAL-KDW
01-29-2024
Rodney Galimore, Petitioner, v. Warden J. Nace, Respondent.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge
Rodney Galimore (“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. 27, 28. On March 6, 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. 29. Petitioner failed to respond. The court issued an order on May 3, 2023, directing Petitioner to advise the court whether he wished to continue with his case and to file a response to Respondent's Motion by June 2, 2023. ECF No. 33. On June 8, 2023, Petitioner filed a Response in Opposition to Respondent's Motion, ECF No. 35, and Respondent filed a Reply on June 15, 2023, ECF No. 36, Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 28, be granted, and this Petition be denied.
I. Background
Petitioner is currently incarcerated in the Tyger River Correctional Institution of the South Carolina Department of Corrections. ECF No. 1 at 1. He was indicted at the September 2007 term of the Beaufort County Grand Jury on child endangerment, reckless homicide, driving under suspension, and felony driving under influence resulting in death. App. 691-98.Petitioner proceeded to a jury trial on December 8-10, 2008, before the Honorable Carmen T. Mullen, Circuit Court Judge. App. 130 et. seq. Petitioner was represented by Gene Hood, Esquire, and Assistant Solicitor Angela McCall Tanner, Esquire, represented the State. App. 130. The jury found Petitioner guilty as indicted. App. 451. Judge Mullen sentenced Petitioner to 35-years imprisonment. App. 459.
Citations to “App.” refer to the Appendix for Petitioner's trial transcript and Post-Conviction Relief (“PCR”) Proceedings and the page numbers on the top of the page. That appendix is available at ECF Nos. 27-1 to 27-15 in this habeas matter.
Petitioner appealed his convictions and sentences to the South Carolina Court of Appeals (“Court of Appeals”). App. 461-74. On appeal, Petitioner was represented by Chief Appellate Defender Robert M. Dudek, Esq., of the South Carolina Commission on Indigent Defense, Division of Appellate Defense. Id. Attorney Dudek filed a Final Brief of Appellant on April 23, 2010, raising the following issues:
I. Whether the court erred by refusing to direct a verdict on the charge of felony DUI where the police officer testified appellant made a legal U-turn since an element of felony DUI is an act prohibited by law or the failure to observe a duty imposed by the law and the state failed to prove that element of the offense?
II. Whether the court erred by refusing to direct a verdict on the charge of child endangerment which was based on a violation of the felony DUI statute since the child endangerment charge was dependant on appellant also being guilty of felony DUI, and the judge erred by refusing to direct a verdict on that charge?App. 464. The State filed a Final Brief of Respondent on August 23, 2010. App. 477-85. On January 25, 2012, the Court of Appeals filed a published decision affirming Petitioner's convictions and sentences. App. 488-94. Petitioner filed a petition for rehearing and suggestion for rehearing en banc on February 24, 2012, and his petition was denied on April 20, 2012. App. 495-504. Petitioner filed a petition for writ of certiorari on June 19, 2012, which the South Carolina Supreme Court denied on November 7, 2013. App. 505-17, 533.
I. Procedural History
Petitioner filed an application for post-conviction relief (“PCR”) on December 13, 2013. App. 535-43. Petitioner asserted he was being held in custody unlawfully because of ineffective assistance of counsel. App. 537-41. The State filed a return on February 10, 2015. App. 546-49. A PCR motion hearing convened on August 6, 2018, before the Honorable R. Ferrell Cothran, Jr., Circuit Court Judge. App. 551-667. Petitioner was present and represented by Attorney Christian Aaron Seville, and Attorney Tristan M. Shaefer appeared on behalf of the State. See id. Petitioner, Martin Schussel, and former solicitor Angela McCall-Turner appeared and testified at the hearing. Id. The PCR court denied and dismissed Petitioner's PCR Application with prejudice in an order filed on June 13, 2019, making the following findings of fact and conclusions of law:
Petitioner's trial counsel did not testify as he died before the PCR hearing was held. ECF No. 27 at 29.
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).
Applicant has alleged numerous instances of ineffective assistance of counsel against trial counsel, Gene G. Hood. Each allegation is addressed fully below.
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, 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.E.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 that, 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 689-690. 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. Applicant's allegation is addressed fully below:
Counsel was ineffective for failing to call an expert witness in rebuttal
Applicant alleges Counsel was ineffective for failing to call an expert in the field of accident reconstruction at trial. Applicant alleges that had this expert be [sic] called at trial, the jury would have likely returned a verdict of not guilty. Applicant has failed to present evidence that would show a reasonable probability that, but for Counsel's failure to call an expert witness, the result of his trial would have been different.
At the evidentiary hearing, Applicant called the expert witness retained by trial counsel to testify as to his findings related to his work on the accident reconstruction. Mr. Schussel (accident reconstruction expert) testified as to what information he provided to counsel prior to trial and what he would have testified to concerning the animation used by the State. Mr. Schussel stated that he would have testified that the animation was not appropriate for showing what actually happened in the accident, because there was not enough data available. Mr. Schussel testified that the animation was one possible depiction of how the accident occurred, but may not have portrayed what actually happened. Mr. Schussel stated that he would have testified at trial that the methods used to create the animation were unreliable and that it was not accurate. Angela McCall-Tanner (former solicitor) testified that counsel fought the introduction of the animation hard at trial. Tanner testified that she remembered counsel objecting to the introduction of the animation and her recollection was reflected in the record. Tanner testified that she recalled counsel objecting because the proper measurements were not made to create a proper animation. Tanner testified the counsel did extensive crossexamination of every State witness related to the accident reconstruction and animation. Tanner also testified that she did not believe the animation was critical to the trial, but rather that a photograph showing tracks from Applicant's car leading into the wrong lane was the most damaging.
This Court finds that counsel thoroughly brought out the potential weaknesses of the State's accident reconstruction through a thorough crossexamination of the State's witnesses. Counsel was able to bring out the same weaknesses expressed by Mr. Schussel through the cross-examination of the State's own witnesses. This Court recognizes that there are potentially a number of different trial strategies that do not include the calling of an expert that would be well within the bounds of professional competence. Therefore, in accordance with the standard set forth above, this Court finds that Applicant has failed to meet his burden and this allegation is summarily dismissed.
Counsel was ineffective for failing to challenge Applicant's blood draw on constitutional grounds
Applicant alleges that counsel was deficient for failing to challenge Applicant's blood being drawn after the accident without his consent, alleging it violated his fourth amendment rights. This Court finds that counsel was not deficient, and that Applicant has failed to meet his burden of proof.
Applicant testified that he had discussions with counsel about his fourth amendment concerns related to the drawing of his blood without his consent. Applicant testified that counsel told him that there was nothing to challenge because the officers acted appropriately in taking his blood. Applicant testified that counsel told him that the officers did not need a warrant to draw his blood under these circumstances. Applicant testified that he did not consent to the blood draw and that he was physically restrained. Tanner testified that it was common practice to draw blood of persons arrested for felony DUI with or without their consent, without a warrant. Tanner testified that the felony DUI statute states that the defendant shall give a sample. Tanner testified that an implied consent form was filled out and entered into evidence in this case. Tanner also testified that a chain of custody report was entered for Applicant's blood and that every person in the chain testified at the trial.
This Court finds that counsel was not deficient for failing to challenge the draw of Applicant's blood without a warrant on constitutional grounds. This Court finds that the felony DUI statute authorizes law enforcement to take a sample of defendant's blood without his consent and that an implied consent form was entered in this case. This Court finds that Applicant has failed to meet his burden in relation to this allegation and it is therefore summarily dismissed.
Counsel was ineffective for failing to object to the Judge's instructions
Applicant alleges that counsel was deficient for failing to object to the trial judge's jury instructions where the judge failed to mention the exceptions of the law of “left of center lane.” This Court finds that Applicant has failed to meet his burden in relation to this allegation and it is therefore summarily dismissed.
Applicant testified that the trial judge did not include the exceptions to the “law of left of center lane” when he was charging the jury. Applicant testified that one of those exceptions was when one is pulling out of a driveway and that the State's whole case was that Applicant was pulling out of a driveway when the accident occurred. Tanner testified that if the trial judge did not charge the exceptions it was due to their being no evidence presented to warrant the charge. Tanner testified that the State did not believe that Applicant was pulling out of a driveway when the accident occurred, but rather, he was pulling out of a sandy area
next to a store. The State did not contend that the area where Applicant entered the roadway was a driveway.
This Court finds that Applicant has failed to show that counsel was deficient for failing to object to the jury charge. Therefore, this Court finds that Applicant has failed to meet his burden in relation to this allegation and it is summarily dismissed.
Counsel was deficient for failing to challenge the chain of custody of the blood
Applicant alleges that counsel was deficient for failing to challenge the chain of custody of the blood drawn from the deceased. This Court finds that Applicant has failed to meet his burden in regards to this allegation and it is therefore summarily dismissed.
Applicant testified that counsel did not challenge the blood drawn from the deceased and that the autopsy was done by the family before being handed over to the State. Tanner testified that blood was taken from the victim and that there was no trace of alcohol or drugs in the test. Tanner also testified that full record of the chain of custody was entered into evidence and that every person in the chain testified at the trial.
This Court finds that counsel was not deficient and that there was not legitimate reason to challenge the chain of custody of the blood sample. This Court finds that Applicant has failed to meet his burden in regards to this allegation and that it is summarily dismissed.
Other Allegations
This Court finds that Applicant failed to present evidence on any other allegations at the evidentiary hearing and therefore deems them waived.
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. 679-87. Petitioner filed a Rule 59(e) motion to reconsider which the court denied on July 12, 2019. App. 688-90.
Petitioner appealed the denial of his PCR application and Appellate Defender Joanna K. Delany, South Carolina Commission on Indigent Defense, Division of Appellate Defense, represented Petitioner on appeal. ECF No. 27-5. Attorney Delany filed a Petition for Writ of Certiorari in the South Carolina Supreme Court on July 1, 2020, presenting the following issue:
Whether the PCR court erred where it found counsel provided effective representation where the State alleged the fatal collision occurred because Petitioner was driving in the oncoming lane, and where the defense offered no expert testimony about the collision even though Martin Schussel, an expert in accident reconstruction, had told counsel that the State's accident investigation and animation were unreliable and that Petitioner's car shifted to the left because of the collision, and where Petitioner was prejudiced because such evidence was not otherwise adduced?Id. at 3. The South Carolina Supreme Court transferred the petition to the Court of Appeals who filed an order on August 18, 2022, denying the petition for a writ of certiorari. ECF No. 27-7. The remittitur was issued on September 15, 2022. ECF No. 27-8.
Petitioner filed a second PCR application on January 26, 2021, in which he alleged he was being held in custody unlawfully because of ineffective assistance of counsel. ECF No. 27-9. On June 2, 2021, the State filed a return and motion to dismiss Petitioner's second PCR application. ECF No. 27-10. On July 19, 2021, Bentley Price, Chief Administrative Judge, First Judicial Circuit, filed a conditional order of dismissal of Petitioner's second PCR. ECF No. 27-11. On March 7, 2022, Judge Price filed a final order of dismissal of Petitioner's second PCR Application. ECF No. 27-13. Petitioner filed an appeal of his final order of dismissal of his second PCR Application on April 8, 2022. ECF No. 27-15.
Q
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: Counsel failed to object to the reading of the charge of §56-5-1810 when exceptions were not red to the jury.
Supporting Facts: The state never charged left of center until after indictment was quashed. At that point, the judge told the solicitor to charge left of center to make felony D.U.I. charge stand. §56-5-1810 has an exception for left turn out of privet road, driveway or alley.
Ground Two: Counsel failed to object to pathologist reports on chain of custody.
Supporting Facts: Counsel failed to object to the pathologist sending his lab work out of state and not contacting S.L.E.D. at any time or sending the reports to them for proper chain of custody.
Ground Three: Counsel failed to object to the §56-5-2953 was not observed.
Supporting Facts: arresting officer stated the he was trained in felony D.U.I. procedure and on the stand he was asked if he had video recording of arrest and stated that it was not protocol. When §56-5-2953 says that you must video tape the arrest of anyone who violates §56-5-2930, §56-5-2933, §565-2945
Ground Four: Solicitor's office presented false, inaccurate and misleading evidence in video animation by the M.A.I.T.
Supporting Facts: the M.A.I.T declined the call but after 18 month's went to seen and made video animation. on the stand the troper sprous states he got r rate of speed from skid mark. but then states he got rate of speed from M.A.I.T. information inaccurate and misleading.
Ground Five: Counsel failed to object to the destruction of blood evidence that should have been kept for court.
Supporting Facts: Officer testified on the stand that all he was concerned about was getting his blood evidence that he need for court. But when S.L.E.D. agent was asked if she had Mr. Galimore's blood sample she stated that it was destroyed.
Ground Six: Counsel failed to object to the photographs that showed sand trail out of driveway to the back of car never left of center.
Supporting Facts: The state stated the vehicle crossed center lane and collide with the motorcycle. Then generated a video animation that showed that when the photographs showed that car came out of driveway onto the road and collided with motorcycle. Counsel should have read §56-5-1810 which makes an exception for left turn out of driveway, ally, or privet road. the officer stated that i made a legal u-turn out of the driveway as the sand trial shows behind the car
Ground Seven: Counsel failed to call expert to testify at trial to rebut the states experts and animation.
Supporting Facts: Counsel spoke with an expert prior to trial but did not call him at trial to rebut the states M.A.I.T. or any other expert.ECF No. 1 at 5-15 (Errors in original).
Multi-Accidental Investigation Team for the South Carolina Highway Patrol. See App. 271.
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, 404-405 (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). 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. Reedv. 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. 72, 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 Grounds One through Six claims in his habeas petition are procedurally barred because Petitioner failed to raise these claims to the PCR court or in the appeal of the PCR order to the South Carolina appellate courts. ECF No. 27 at 11-13. In Ground One, Petitioner claims trial counsel failed to object to the reading of § 56-5-1810 to the jury when the exceptions to the statute were not also read to the jury. ECF No. 1 at 5. In Ground Two, Petitioner claims counsel failed to object to the pathologist's reports on chain of custody. Id. at 7. In Ground Three, Petitioner alleges counsel failed to object when the requirement of § 56-5-2953 that required the officer to record the arrest was not observed. Id. at 8. In Ground Four, Petitioner claims the solicitor's office presented false, inaccurate, and misleading evidence in the video animation created by M.A.I.T. Id. at 10. In Ground Five, Petitioner alleges counsel failed to object to the destruction of blood evidence that should have been kept for court. Id. at 12. In Ground Six, Petitioner contends counsel failed to object to the photographs that showed a sand trail from the driveway to the back of car was never left of center. Id. at 13. The undersigned finds Petitioner's Grounds One through Six claims were not ruled upon by the South Carolina PCR and appellate courts and therefore 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); Pruitt v. State, 423 S.E.2d 127 (S.C. 1992) (holding issue must be raised to and ruled on by the PCR judge in order to be preserved for review). Consequently, federal habeas review of the Petitioner's Grounds One through Six claims are barred absent a showing of cause and actual prejudice, or actual innocence. Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
B. Cause and Prejudice
Petitioner has not shown sufficient cause and prejudice to excuse the default of his Ground One through Six 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.
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 his Ground One through Six claims. Petitioner had a trial, an appeal, a PCR hearing, on and a PCR appeal in which to raise these issues. However, he failed to raise them, raise them properly, or preserve the issues for habeas review. Petitioner cannot establish cause and prejudice because he has abandoned the opportunities to preserve these issues.
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). To pass through the actual-innocence gateway, a petitioner's case must be “truly extraordinary.” Schlup v. Delo, 513 U.S. 298, 327 (1995). The court's review of the record does not support a showing of actual innocence. Therefore, the procedural bar applies to Petitioner's Ground One through Six claims.
C. Merits
1. Ground Seven
In Ground Seven, Petitioner claims his counsel was ineffective when he failed to call an expert to testify at trial to rebut the State's expert and animation. ECF No. 1 at 15. Petitioner states his counsel spoke with an expert before trial but failed to call him at trial to rebut the State's M.A.I.T. animation or any other expert. Id.
Respondent moves for summary judgment on this Ground Seven claim. ECF No. 27 at 24. Respondent contends the PCR court properly found Petitioner failed to meet his burden establishing trial counsel was constitutionally ineffective for failing to present an accident reconstruction expert during his trial. Id. Respondent argues the PCR court correctly found trial counsel elicited the same evidence as an accident reconstruction expert in his cross-examination of the State's witnesses and in his closing argument. Id. Respondent also contends the PCR court correctly found there was not a substantial likelihood the result of Petitioner's trial would have been different if the expert had been presented. Id. at 24-25.
In his Response, Petitioner did not present a specific argument in support of his Ground Seven claim, but generally argues the state court's adjudication involved an unreasonable application of clearly established federal law, or applied the governing law unreasonably to the facts of his case. ECF No. 35.
At the PCR hearing, Petitioner testified that during his trial the State contended Petitioner was intoxicated when he made a legal u-turn, but crossed the center lane without reaching the center lane. App. 559. Petitioner stated there was an animation done by a M.A.I.T. team 16 months after the incident and the only information the M.A.I.T. team had was a few handwritten notes from the responding/investigating officer. App. 560. Petitioner testified the animation was shown to the jury, and his attorney did not object, nor did he call an expert to testify about the animation. Id. Petitioner was asked if he had any discussions with his trial counsel related to his strategy for not calling an expert, and he stated:
Mr. Hood informed me that he discussed the trial the accident with -- with an expert, and his opinion with the expert's -- the expert told him that he could not give any information that was different from what the police had come up with. So he was going to give testimony ... -- that was going to be the same thing that the police had -- were going to give testimony to.App. 561-62. Petitioner testified he did not know who the expert was before trial, and he did not look at the expert's notes before trial. App. 562. Petitioner testified he had an opportunity to review the expert's notes after he was convicted, and he realized the expert actually had a different view from the officers from the M.A.I.T team, and he believed the expert opinion was favorable to him. App. 563-64. Petitioner stated his understanding of the expert's opinion was that the officer's research was not the way things were done, and the team did not have enough information to on generate the results they produced. App. 579. Petitioner testified he would have liked the expert to appear at trial to challenge the animation and argue that it was not correct. App. 580.
PCR counsel presented testimony from accident reconstruction expert Martin Schussel at the PCR hearing. App. 586-87. Schussel testified he had a bachelor's and master's degree in mechanical engineering, and he has worked in accident reconstruction for approximately 16 years. Id. Schussel testified he received a phone call from Petitioner's trial counsel in November 2008 before the start of trial. App. 589. Schussel testified Petitioner's counsel asked him to look at the materials from the M.A.I.T. team and tell him what he thought, and whether the animation that had been done was appropriate or not. Id. Schussel stated
For this particular case, I did some work to evaluate the materials that were sent to us. I evaluated them. I wrote up some notes on them. I don't remember if I was asked specifically to write up the notes, but I often do, and then I would have discussed these notes with Mr. Hood. And then at that point, I believe -- I don't remember the precise wording or whether we actually had a discussion to this effect, but at some point we sent the file back to Mr. Hood. We have a process that we go through after a period of time of inactivity to find out whether people want us to retain materials or if they want them. He requested the materials back, so we sent the materials back to him. So the only thing that I retained in our file was electronically I had these notes that I took at the time.App. 590. Schussel was asked his opinion of the animations played during Petitioner's trial, and he testified that
well, in general, an animation, in order to be effective, is supposed to accurately represent exactly what happened in the accident. Not just what might have happened, but a precise analysis of the information to determine this is what actually happened in the accident. From what I look at, the file, and it's not just looking at the animation, but instead it's looking at all the evidence that was gathered and is available, but there's not enough information to do an accurate animation, and the reason is there's too many unknowns. We don't know the speed of the motorcycle leading up to the accident. We don't know the motions of the motorcycle driver or the actions of the motorcycle driver. Did they slow down? Did they swerve? When did they see something ahead of them? We don't -- for Mr. Galimore, we don't know how tightly he made his turn. We don't know the speed
in which he made the turn. We don't know if he sped up or slowed down during that turn. But instead, what I read from the testimony at trial and from the facts that were available in the MAIT file, they made assumptions about a lot of different things to produce an animation that showed one way in which this accident might have happened. For instance, one of the -- what I see as a flaw in the animation is the fact that Mr. Galimore's vehicle is moving along at a steady speed, and that at impact it instantaneously stops at the point of impact. That's not something that happens to a vehicle in an accident. It doesn't happen that way. So the - and there's -- it looks like there was a steady speed assumed for both vehicles. In fact, the officer said that at trial in their -- in their testimony. And also they chose a speed for Mr. Galimore's vehicle that was in the tightest turn that his vehicle is capable of making. No one measured the tire marks that appear in some of the photographs, the dirt marks on the roadway, to determine what the motion was of the vehicle. So they took and animated, a very tight turn, the tightest turn that that vehicle can make at the maximum speed that that vehicle can make that turn. So they did an analysis of it, but based on assumptions; assumptions that he had the tightest circle, and that he was doing the maximum accelerations. So none of that do we know. In other words, they admitted as well that they don't know that information, so in these kind of circumstances, we don't do animation, we don't present it to a jury because it doesn't really represent what happened in the accident; it just represents something that you can take some numbers and plug them into an animation program and it will show you some action of the vehicle, but it isn't -- there's no way to know that that's actually what happened in the accident.App. 594-596. Schussel was asked if he would classify the animation as accident reconstruction, and he testified:
No, I think it's an illustration of what might have happened, but it's not based on the laws of physics, basically, because, in fact, it shows the vehicle stopping instantaneously and, secondly, it's not based on a bunch of known information and then validation or correlation of that information with other.App. 596-97. Schussel testified that based on the evidence they did have, he was not able to definitively say where the point of impact was, nor how fast the motorcycle was going, or the path the motorcycle took prior to impact, or the path Petitioner's car took following the impact. App. 597. He stated if he offered an opinion at trial, he would have stated the animation was not an accurate representation of what happened in the accident because there were too many unknowns and variables that the M.A.I.T. officers had to make assumptions about rather than having physical o/i evidence to say that is what precisely happened. App. 603-604. Schussel also stated the M.A.I.T officers should not be allowed to testify about how the accident took place or represented that with an animation since they have no independent knowledge of the facts of the case, App. 607-608.
In denying this Ground Seven claim, the PCR court found Petitioner failed to present evidence that he was prejudiced by counsel's failure to call Schussel at trial. App. 682-83. The PCR court found trial counsel thoroughly addressed the possible weaknesses of the State's accident reconstruction in its cross examination of the State's witnesses, and was able to address the same weaknesses noted by Schussel. App. 683-84. The court also explained there were trial strategies that do not include calling an expert that would be within the bounds of professional competence. App. 684.
The undersigned finds Petitioner has failed to offer sufficient argument to satisfy the Strickland test. Petitioner has not shown the PCR court's analysis of his Ground Seven claim misapplied clearly established federal law or, even if there was an error, that it was unreasonable. See Williams, 529 U.S. at 410. Petitioner has also not shown by clear and convincing evidence the PCR court reached an unreasonable factual determination of this issue given the evidence and record before it. The trial record shows trial counsel objected to the admission of the M.A.I.T. animation based on the lack of measurements taken at the scene, the failure to examine the vehicles involved in the crash, and the creation of the animation a year and a half after the crash. App. 34243. Trial counsel also cross-examined Corporal Ashe, M.A.I.T. team accident reconstruction expert, about the report M.A.I.T. prepared on the vehicle crash. App. 368. Counsel asked Ashe about the reconstruction he did on the accident, questioning how he determined the speed the vehicles were traveling before impact, and how he determined the point of impact and the resting position of the vehicles after impact. App. 390-99. Counsel also cross-examined Corporal Rosado, M.A.I.T. team, collision reconstruction, about the creation of the M.A.I.T. animation. App. 400402. Counsel questioned Rosado about how he determined the speed the vehicles were traveling and his lack of examination of the vehicles. App. at 407. Petitioner has not identified any evidence to challenge the PCR court's factual findings that his trial counsel's cross-examination of the State's witnesses thoroughly brought out the same potential weaknesses in the M.A.I.T. accident reconstruction that were noted by Schussel. Petitioner has therefore failed to show the PCR court unreasonably found Petitioner failed to present evidence showing a reasonable probability that, but for Counsel's failure to call an expert witness, the result of his trial would have been different. In reviewing a petitioner's attack on his state court conviction, this court must presume that factual determinations made by the state court are correct. Petitioner then bears the burden of rebutting this presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). The undersigned finds Petitioner has failed to demonstrate his counsel's performance was deficient, and the undersigned recommends Respondent be granted summary judgment on Petitioner's Ground Seven claim. 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 Respondent's Motion for Summary Judgment, ECF No. 28, be GRANTED and the Petition be DENIED.
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).