Green v. Jackson

Full title: Derrell Green, Petitioner, v. Shane Jackson, Warden, Lee Correctional…

Court: United States District Court, D. South Carolina

Date published: Jul 16, 2024

CA 9:23-cv-01945-BHH-MHC (D.S.C. Jul. 16, 2024)

Opinion

CA 9:23-cv-01945-BHH-MHC

07-16-2024

Derrell Green, Petitioner, v. Shane Jackson, Warden, Lee Correctional Institution, Respondent.

MOLLY H. CHERRY UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

MOLLY H. CHERRY UNITED STATES MAGISTRATE JUDGE

Petitioner Derrell Green (“Petitioner”), a state prisoner, seeks habeas relief pursuant to 28 U.S.C. § 2254. Respondent Warden Shane Jackson (“Respondent”) filed a Motion for Summary Judgment, along with a Return and Memorandum (“Motion”). ECF Nos. 14, 15. Petitioner filed a Response in Opposition. ECF No. 20. The matter is ripe for review.

Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the assigned district judge referred the Motion to the undersigned for a report and recommendation. For the reasons that follow, the Court recommends that Respondent's Motion be granted and the Petition be dismissed with prejudice.

I. BACKGROUND

A. Procedural History

On February 8, 2010, Petitioner was charged in family court with murder (2010-JU-10-180), unlawful possession of a firearm (2010-JU-10-181), and possession of a weapon during the commission of a violent crime (2010-JU-182). App. at 1392-93.¹ Petitioner was fourteen years old at the time of the murder.

1 Citations to the appendix refer to the PCR appendix page numbers from the state court record. See ECF No. 16 at 2 (table of contents).

Because he was a juvenile, Petitioner appeared before the Honorable Judy L. McMahon (“Family Court Judge”), for a waiver hearing on the murder charge on August 25-26, 2010. App. at 10. After all testimony and arguments were presented, the Family Court Judge took the matter under advisement. App. at 351. On September 1, 2010, the Family Court Judge found there was probable cause to believe Petitioner had committed murder and it was in the best interest of Petitioner and the protection of the community to transfer Petitioner from family court to the court of General Sessions (South Carolina's criminal court) to be tried as an adult. App. at 1393. The Family Court Judge denied a subsequent motion to reconsider the waiver.

Consequently, on December 6, 2010, Petitioner was indicted by the Charleston County Grand Jury for the offense of murder. App. at 1413-14. This case proceeded to trial before the Honorable J.C. Nicholson (“Trial Judge”) on August 22, 2011. App. at 375. Petitioner was represented by attorneys Megan Ehrlich and Lorelle Proctor (collectively, “Trial Counsel”). Representing the State of South Carolina was Chief Deputy Solicitor Douglas Durant and Assistant Solicitor Jennifer Shealy of the Ninth Circuit Solicitor's Office. After four days of testimony, Petitioner was convicted of the offense of murder. App. at 1173.

On September 1, 2011, Petitioner appeared before the Trial Judge and received a sentence of forty years imprisonment. App. at 1202. After sentencing, Petitioner filed a motion to reconsider on September 9, 2011. App. at 1204-05. An additional hearing was held on October 7, 2011, before the Trial Judge. App. at 1206. Upon the conclusion of this hearing, the motion to reconsider was denied. App. at 1218.

Petitioner filed a direct appeal, raising the following claim:

The court erred by refusing to suppress appellant's coerced inculpatory statement to the police since appellant was a fourteen-year-old youth with Attention Deficit Hyperactivity Disorder who was in special education classes, and he was handcuffed to a chair for hours, and left handcuffed alone in a small room for at

least an hour and a half where an investigator admitted appellant's demeanor showed he was overwhelmed after the police did not believe his first statement.

ECF No. 1 at 2. The South Carolina Court of Appeals affirmed Petitioner's conviction in an unpublished opinion. See ECF No. 1-3; State v. Green, Op. No. 2014-UP-345 (S.C. Ct. App. filed October 1, 2014).

On January 15, 2015, Petitioner filed an application for post-conviction relief (“PCR”). App. at 1222-28. Petitioner raised the following claims: (1) ineffective assistance of counsel; (2) Eighth Amendment violation; (3) Miranda violation. App. at 1224. The State's return was filed on July 30, 2015. App. at 1229-33. An amended application was filed on February 24, 2018, alleging newly discovered evidence as to one of the witness's testimony at trial. App. at 1235-36.

An evidentiary hearing was held before the Honorable G. Thomas Cooper (“PCR Judge”) on December 3, 2018. App. at 1244. Petitioner was represented by attorney James Falk (“PCR Counsel”). Forensic psychiatrist Dr. Donna Schwartz-Maddox and Trial Counsel Megan Ehrlich testified on behalf of Petitioner. App. at 1245. Chief Deputy Solicitor Bruce DuRant testified on behalf of the State. App. at 1245.

At the hearing, Petitioner proceeded forward only on his allegation that Trial Counsel was ineffective for failing to present mitigation evidence of his depression during sentencing. At the conclusion of the hearing, the PCR Judge denied relief. App. at 1310-12. The PCR Judge subsequently issued an order denying relief as to the ineffective assistance of counsel claim. ECF No. 16-6 at 5-25.

Petitioner's PCR Counsel filed an initial notice of appeal on March 20, 2019, before the Supreme Court of South Carolina. ECF No. 16-6 at 1-4. Appellate Defender Taylor Gilliam (“PCR Appellate Counsel”) filed a petition for writ of certiorari on October 7, 2019. ECF No. 16-7. Petitioner raised the following issue:

Whether the PCR court erred in denying relief, where trial counsel failed to present evidence of Petitioner's depression and multiple head injuries at various stages of his case, including the waiver hearing in family court where such diagnoses would be relevant to a transfer of jurisdiction to the court of general sessions and the sentencing hearing, where Petitioner was fourteen years old at the time of the alleged murder and sixteen years old at the time of trial?

ECF No. 16-7 at 3.

The Supreme Court later transferred the appeal to the South Carolina Court of Appeals. The Court of Appeals denied certiorari on August 16, 2022. ECF No. 16-8. The remittitur was issued on September 8, 2022, and filed by the Clerk of Court on September 12, 2022. See ECF No. 16-9; ECF No. 14 at 5.

On May 10, 2023, Petitioner filed the current petition for a writ of habeas corpus in this Court. ECF No. 1. Petitioner Green raises the following Grounds:

GROUND ONE: The South Carolina courts unreasonably failed to grant Petitioner relief when Petitioner's involuntary confession was admitted in violation of the due process guarantees of the Fourteenth Amendment of the United States Constitution.

GROUND TWO: The South Carolina courts unreasonably failed to grant Petitioner relief on his claim he was denied effective assistance of counsel when his trial counsel failed to prevent evidence of his depression and multiple head injuries at various stages of his case including the waiver hearing in family court and the sentencing hearing.

ECF No. 1 at 5, 15.

B. Relevant Factual History

On February 5, 2010, Petitioner shot Larry Maybank (“victim”) twice. The victim eventually died because of excessive loss of blood caused by his gunshot wounds. App. At 1102. At trial, various witnesses to the shooting testified. These witnesses testified that they saw Petitioner shoot the victim. App. at 752-76, 805-07, 841-45.

After the shooting, Petitioner was arrested and read his Miranda rights. He gave two statements to law enforcement. In his first statement, which began around 3:55 p.m., Petitioner denied any involvement in the shooting. App. at 969-74. He stated he did not have a gun that day, nor did he fire a gun that day. App. at 973.

In his second statement, which began around 7:45 p.m., Petitioner admitted his first statement was not truthful. App. at 982. Petitioner indicated he had been jumped by the victim and some others a few weeks prior to the shooting. App. at 982. He saw the victim after school. App. at 983. He noted the victim had been “mean mugging” him. App. at 983. Petitioner stated he went and got a gun, which he had hidden in an abandoned house near the school. App. at 984. He described the gun as being a .38 revolver. App. at 983-85. Petitioner stated he just walked up behind the victim and started shooting. App. at 984. He did not know how many times he fired the gun, but he thought it may have been four or five times. App. at 984. After the shooting, Petitioner ran home, and while running he threw the gun into a vacant lot. App. at 985.

II. STANDARDS OF REVIEW

A. Summary Judgment Standard

Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.

Under this standard, 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, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Id. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “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.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.

B. Federal Habeas Review under 28 U.S.C. § 2254

Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, in considering Petitioner's claims, the Court's review is limited by the deferential standard of review set forth in 28 U.S.C. § 2254(d). See Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under § 2254(d),

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 with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim-

(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 State court proceeding.

28 U.S.C. § 2254(d); see also Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (explaining 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 contrary to, or involved an unreasonable application of, clearly established federal law,” or “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”). “Section 2254(d)(1) describes the standard of review to be applied to claims challenging how the state courts applied federal law, while § 2254(d)(2) describes the standard to be applied to claims challenging how the state courts determined the facts. Both provisions direct federal courts to assess the reasonableness of the state court determinations, and both assessments must be made in light of the evidence the state courts had before them.” Winston v. Kelly, 592 F.3d 535, 553 (4th Cir. 2010).

Because “review under § 2254(d)(1) focuses on what a state court knew and did,” this Court measures the reasonableness of the state court's decision based on the information in the record before the state court. Valentino v. Clarke, 972 F.3d 560, 575 (4th Cir. 2020) (quoting Cullen v. Pinholster, 563 U.S. 170, 182 (2011)). “Likewise, § 2254(d)(2) provides for a limited review of factual determinations in light of the evidence presented in the State court proceeding[;] [thus,] [t]his backward-looking language similarly requires an examination of the state-court decision at the time it was made.” Id. (citation and internal quotation marks omitted).

A state court's decision is contrary to clearly established federal law under § 2254(d)(1) if that court “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Evans, 220 F.3d at 312 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). A state court decision unreasonably applies clearly established federal law if the state court “identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. (quoting Williams, 529 U.S. at 413). “In order for a state court's decision to be an unreasonable application of [the Supreme] Court's case law, the ruling must be objectively unreasonable, not merely wrong; even clear error will not suffice.” Virginia v. LeBlanc, 582 U.S. 91, 94 (2017) (citation and internal quotation marks omitted).

A similar analysis applies to § 2254(d)(2). “For a state court's factual determination to be unreasonable under § 2254(d)(2), it must be more than merely incorrect or erroneous.” Winston, 592 F.3d at 554. Thus, “the question is not whether the state court's determination was incorrect but whether it is ‘sufficiently against the weight of the evidence that it is objectively unreasonable.'” Allen v. Stephan, 42 F.4th 223, 246 (4th Cir. 2022) (citation omitted), cert. denied sub nom. Chestnut v. Allen, 143 S.Ct. 2517 (2023). Further, factual findings “made by a State court shall be presumed to be correct,” and Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). To be clear, § 2254(e)(1) “does not concern itself with the reasonableness of factual determinations by the state courts but with the correctness or incorrectness of those determinations.” Winston, 592 F.3d at 554 (noting the “apparent tension” between §§ 2254(d)(2) and (e)(1) and noting both sections provide “independent requirements” for federal habeas review). Consequently, to secure habeas relief, a petitioner must “demonstrate that a state court's factual finding was incorrect by clear and convincing evidence, 28 U.S.C. § 2254(e)(1), and that it was ‘objectively unreasonable' in light of the record before the court.” Id. at 555 (cleaned up) (quoting Miller-El v. Cockrell, 537 U.S. 322, 348 (2003)).

III. DISCUSSION

Petitioner presents two Grounds for relief. The first Ground is a direct appeal issue involving his alleged involuntary confession. Petitioner pursued this issue all the way to the Supreme Court of South Carolina, properly exhausting his state court remedies. Cf. Laurent v. Warden, Camille Graham Corr. Inst., No. 9:14-CV-03890-JMC, 2015 WL 4395008, at *8 (D.S.C. July 16, 2015) (noting due process violation because of an alleged involuntary confession was a direct appeal issue, and finding the issue was not exhausted and procedurally barred from consideration on federal habeas review because it was not raised through the filing of direct appeal).

The second Ground alleges ineffective assistance of counsel in failing to properly investigate and present mitigating evidence during sentencing. Petitioner pursued this claim via his state PCR action and properly exhausted his state court remedies. See Shinn v. Ramirez, 1 42 S.Ct. 1718, 1727 (2022) (noting a federal court considering a § 2254 petition “generally may consider a state prisoner's federal claim only if he has first presented that claim to the state court in accordance with state procedures”).

After carefully reviewing both Grounds for relief, and for the reasons that follow, the undersigned is constrained to recommend dismissing the Petition with prejudice.

A. Ground One - involuntary confession

Petitioner maintains that the Trial Judge violated his due process rights under the Fourteenth Amendment by admitting his involuntary confession into evidence. Specifically, Petitioner argues that his confession was involuntary because he was fourteen years old at the time he waived his Miranda rights-such that he did not fully understand what he was doing-and further argues the police interrogation that led to his inculpatory statement was unduly coercive.

Prior to the start of trial, the Trial Judge held a Jackson v. Denno ² hearing to determine the admissibility of Petitioner's statement. App. at 495-663. Detective Alan Kramitz testified that he was the lead detective on the case. He testified he went to Petitioner's house at 2:05 p.m. on the day of the shooting and met up with officers already on-scene, including a high-risk Special Weapons and Tactics (SWAT) team, two other detectives, and Sergeant John Reynolds. App. at 496-97. Sergeant Reynolds told Detective Kramitz they had been there awhile knocking on the door, but no one answered. App. at 498. Roughly ten minutes later, as the SWAT team and the other detectives left the area, Mr. Nelson, Petitioner's stepfather, arrived home and spoke with officers; Petitioner's mother arrived shortly thereafter. App. at 498-99. Detective Kramitz went to the back door with Petitioner's parents, and Mr. Nelson banged on the door until Petitioner's sister opened it. App. at 500. Detective Kramitz stated that when he went inside, he saw Petitioner and Daqone Lance watching television. App. at 501. Detective Kramitz stated he “asked both the Nelsons to come to the precinct [but t]hey refused.” App. at 501. Detective Kramitz also stated that he offered to give Petitioner's parents a ride to the police station, but they both declined. App. at 502. Detective Kramitz handcuffed Petitioner and Daqone and took them to the police station. App. at 501-02.

2 A Jackson v. Denno hearing is a pretrial hearing held to determine the admissibility of a criminal defendant's confession or statements to law enforcement. The purpose of the hearing is to assess the voluntariness of the confession and to ensure that it was obtained without coercion, threats, or promises. See Jackson v. Denno, 378 U.S. 368, 376-77 (1964) (noting a criminal defendant has a “constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession”).

Detective Kramitz testified Petitioner was placed in an interview room, which he described as having one table and two chairs. App. at 502. Detective Kramitz testified to the process he utilized in advising Petitioner of his constitutional rights. App. at 503-07. Detective Kramitz asked about Petitioner's age and education and Petitioner indicated he was fourteen and in eighth grade. App. 503. Detective Kramitz stated he went through each right individually and asked after each one if Petitioner understood. App. 504. Detective Kramitz indicated he explained the rights to Petitioner in the way he did because Petitioner was fourteen. App. at 506. He noted that Petitioner did not appear to be confused at all, and Petitioner did not request any further explanation. App. at 506. He also testified that Petitioner did not appear to be under the influence of alcohol or any intoxicants, and it appeared Petitioner understood what he was saying. App. at 506. Detective Kramitz further testified that he had no problems understanding Petitioner, and nothing in Petitioner's conduct reflected that he did not understand Detective Kramitz's explanations. App. at 507.

The advisement of rights was completed around 3:47 p.m., and Detective Kramitz stated Petitioner then agreed to waive those rights and speak with him. App. at 508. Detective Kramitz began questioning around 3:55 p.m. and explained to the Trial Judge that he would ask a question and then write whatever answer Petitioner gave him. App. at 509, 511. During this interview, Kramitz indicated that he did not promise Petitioner anything, did not threaten him in any way, and did not threaten Petitioner's family. App. at 509. He testified that he did not inform Petitioner things would go easier on Petitioner if he just talked. App. at 509. Kramitz noted that he always tells people he interviews to tell the truth. App. at 510. After asking whether something happened at school, Petitioner explained there was a shooting on Bonds Avenue, and that he had run to his house after hearing shots. App. at 511. After the statement was completed, Detective Kramitz read it back to Petitioner, offered Petitioner a chance to read the statement, and asked Petitioner if the statement reflected what happened. App. at 510. Petitioner then signed each page, and Kramitz signed as a witness. App. at 510. Petitioner essentially denied any involvement in the shooting in the first statement.

This initial interview was around an hour-and-a-half, after which Detective Kramitz left Petitioner in the interrogation room. App. at 512. Detective Kramitz noted that Petitioner was left alone in the interview room afterwards, but that he would check in on Petitioner periodically to see if Petitioner needed a bathroom break, needed something to eat, or needed something to drink. App. at 512.

Roughly ninety minutes later, around 7:00 p.m., Detective James Sturkie and Detective Christopher Miller went to question Petitioner again. App. at 513-14. They did not re-inform Petitioner of his rights, as Detective Sturkie was already aware Petitioner had been Mirandized. App. at 537. Detective Sturkie testified that Petitioner was very calm, and seemed to be collected and understood what was going on. App. at 537. Sturkie also noted that Petitioner did not appear to be intoxicated or under the influence of anything. App. at 537. Detective Sturkie testified that Petitioner did not appear to be confused, and it appeared Petitioner was able to understand what Sturkie said to him and vice-versa. App. at 538. He described the conversation they had as lasting approximately twenty to twenty-five minutes. App. at 538. Sturkie also indicated that it appeared to him that Petitioner wanted to tell them what really happened. App. at 538.

Detective Sturkie indicated that when he was sitting beside Petitioner, he placed his hand on Petitioner's shoulder in a “fatherly type” way, and he encouraged Petitioner to tell the truth. App. at 538-39, 548. After that, Petitioner told the two detectives about an altercation he had with the victim several weeks before the shooting in which the victim had allegedly stolen a gold chain from Petitioner. App. at 540. Petitioner also told them about the confrontation that led to the shooting. App. at 540.

Detective Sturkie testified that he did not promise Petitioner anything for his statement. App. at 542. He further testified he did not threaten Petitioner, did not offer leniency, and did not threaten Petitioner's family. App. at 542. Petitioner never invoked his right to remain silent, and Petitioner never asked for an attorney or for his mother. App. at 542. Sturkie also noted that after he and Miller talked with Petitioner, they informed Kramitz that Petitioner was ready to talk. App. at 540. Detective Kramitz subsequently went back into the interview room and took a second written statement from Petitioner. App. at 541, 515.

Petitioner presented testimony from Carol Fila, who worked as the special education coordinator for the Charleston County School District. App. at 569. She stated Petitioner was in several programs she oversaw, and at the time of his arrest he was in eighth grade at Daniel Jenkins Academy in North Charleston. App. at 570. She testified Petitioner repeated first grade and had an individualized education program (IEP) because of his learning disability. App. at 571. Under his IEP, Petitioner received resource classes for math, written expression, literature, and behavior. App. at 571-72. She explained that having average intelligence was not inconsistent with a learning disability. App. at 583. Ms. Fila also testified that his psychological testing occurred in kindergarten, at which point he was already performing one to one-and-a-half years below his grade level peers. App. at 583.

Hanna Hyrne, a probation office with the Department of Juvenile Justice (DJJ) also testified. App. at 584. She had supervised Petitioner on probation and noted she had never been alone with Petitioner because his mother always accompanied him to their meetings. App. at 58485. She stated she was involved in his family court waiver evaluation during the case. App. at 585. During their first meeting, she attempted to review a release with him and explain that the information she obtained from him was for the purposes of the family court waiver hearing and would not be used in General Sessions. App. at 585-86. Ms. Hyrne testified that after reading the waiver form to him, she asked Petitioner if he understood, and he hesitated. App. at 586. She then asked him to explain to her what she had just told him, and he merely parroted back the information. App. at 586. After a half-hour of trying different ways to convey the information to Petitioner, she called the legal department to determine whether they could proceed with the evaluation. App. at 587. Once the evaluation began, Ms. Hyrne indicated that Petitioner continued to struggle with the questions and needed re-explaining or examples just to answer the questions. App. at 588. She noted that she had ongoing concerns about his understanding of his rights, and she therefore took extra precautions to ensure he understood. App. at 594.

Tamica Nelson, Petitioner's mother, testified that when she arrived home February 5, her husband was already there with the police. App. at 596. The police informed them there was a murder on Bonds Avenue, her son was involved, and they were trying to get in the house. App. 597. Once inside the house, the police took Petitioner and his friend Daqone Lance outside. App. at 597. Ms. Nelson testified she asked if she could go with them to the station and the officers told her she could not, but they would call her. App. at 597. While her son was in police custody, Ms. Nelson testified that she called twice to ask if she could come to the station, but it was not until after 9:00 p.m. that she was told she could come to the station. App. at 598.

Petitioner also testified. He stated he was fourteen and in eighth grade when he was arrested. App. at 604. At the time he had been in resource classes, where he was pulled out of his classroom and given extra help with his work. App. at 604. He indicated he did not have any hobbies but did like playing games, and his favorite television show was Tom and Jerry. App. at 607. Petitioner testified he was on medication, Concerta, and was receiving counseling for his behavior problems. App. at 605. He admitted that when he met new people, he was nervous and did not like talking. App. at 605-06. When asked about the day of his arrest, Petitioner stated he was at home when a lot of police officers arrived. App. at 608-09. He testified he was scared, his parents let the police in, the police told him he was under arrest, and he was handcuffed. App. 60910.

Petitioner was then taken to city hall and placed in a small room with a camera in the corner that was covered up with a cup. App. at 611-12. The officers removed one handcuff and then handcuffed him to a chair. App. at 612. Petitioner testified he was nervous to see that the camera in the interrogation room had been covered by a plastic cup.³ App. at 612. Detective Kramitz then read him the rights waiver and told him to sign it. App. at 612-13. Petitioner stated he did not read the waiver himself and it was not explained to him, but he signed it because Detective Kramitz told him to. App. at 613. Detective Kramitz then began to ask him questions, which he answered because he thought he had to, and then he signed the statement when he was asked to sign it. App. at 614-15. Petitioner testified that Detective Kramitz did not threaten Petitioner during questioning. App. at 614. Petitioner further testified that he asked the police if he could speak to his mom “during the first statement,” and he was told he could speak to his mom “when we get done.” App. at 617.⁴

3 The State later solicited testimony from Thomas Deckard, the commander of the detective bureau of the North Charleston Police Department. App. at 635. Deckard noted that the interview room cameras were not working properly at the time of Petitioner's interview (among other things, the cameras were motion activated and could be accessed remotely by non-police personnel), so they placed bowls over the cameras to cover them. App. at 636-39.

4 Since this occurred during the “first” statement, presumably Detective Kramitz was the one who told Petitioner he needed to wait until they were done to speak with his mom. See App. at 617. However, Petitioner did not identify who told him he could speak to his mom “when we get done.”

Petitioner did not know when he finished giving the statement, but he indicated that other people came in later and informed him that they knew he did it and he needed to tell the truth. App. at 615. Petitioner testified they told him they had “people behind the glass pointing [him] out,” and they told him he would “never go home” and would “never see daylight unless [he told] the truth.” App. at 615. He testified that the detectives told him that if he told the truth, it could help him out in court, and he believed them. App. at 616.

After hearing the testimony, the Trial Judge expressed concern over the mental effect on Petitioner, who has attention deficit hyperactivity disorder, of being handcuffed to a chair for several hours in a small room. App. at 655. After listening to the arguments from both parties, the Trial Judge ruled from the bench that the statement was voluntarily and freely given. The Trial Judge ruled:

THE COURT: Thank you very much. All right. The Court as far as the Jackson v Denno and voluntariness of the statement and the granting or the giving of Miranda rights makes the following findings: As far as police coercion, the Court finds no police coercion from any evidence that's been presented.

As the Court said earlier, the length of the interrogation and the length of the confinement was concerning because of the diagnosis of ADHD; however, he was taking medication and there's been no testimony that that diagnosis interfered with his ability to understand the police officers. And from the testimony presented by the defendant in court today, the location of the interrogation and confinement does not convince the Court that there's any -- that affected the voluntariness of it.

The continuity of the interrogation, one started at 3:45 and the other one was at 7:45. The defendant's maturity, education, physical condition, mental health, the Court finds that none of those appear to have affected his ability to be aware of the circumstances, understanding the circumstances, and understanding the advice given by the police officers on the advice of consent rights as signed by the defendant and initialed by each submission by the defendant.

Based on the totality of the circumstances, the Court finds that the statement was voluntarily, freely given and Miranda rights were given.

And the Court is convinced by the preponderance of the evidence, and I so find, that the alleged statement was obtained from the defendant, the defendant was fully advised of his rights under the Fifth and Sixth Amendments of the Constitution of the United States and the defendant was advised of the constitutional safeguards required by Miranda versus Arizona.

The defendant was advised prior to interrogation he had the right to remain silent. The defendant was advised prior to interrogation he had waived his right to remain silent and made a statement and such statement can and will be used against him in a court of law.

Defendant was advised prior to interrogation he had the right to employ or select an attorney of his own choice. If he did not have the money, funds, or resources to employ an attorney, the Court would appoint or provide an attorney for him if he

so desired without cost or expense to him and that he had the right to have his attorney present with him at all times in all interviews and interrogations.

The defendant was advised prior to any interrogation he had the right to consult with his attorney before interrogation and defendant was advised prior to any interrogation he had the right to interrupt and terminate the interrogation at any time. He had the further right to stop answering questions at any time during interrogation.

The defendant was advised prior to interrogation that during the interrogation if he desired an attorney, the interrogation would cease until an attorney was provided for him and he'd be given an opportunity to consult with his attorney prior to further interrogation.

That defendant knowingly and intelligently waived his rights to the Fifth and Sixth Amendments of the Constitution of the United States and the constitutional safeguards required by Miranda versus Arizona and that the alleged statement obtained from the defendant was freely and voluntarily given without duress, without coercion, without undue influence, without reward, without promise, a hope of reward without promise of leniency, without threat of injury, and without compulsion or inducement of any kind, and that such statement was a voluntary product of the free and unconstrained will of the defendant.

As the Court makes those findings as to the statement given that started at 3:45 and is marked as State's Exhibit No. 36, the State (sic) also makes the same findings as to the statement given at 7:45 and marked as State's Exhibit No. 37. Those findings are effective as to both statements.

This Court finds all the above conclusions by a preponderance of the evidence and I therefore find the statements admissible into evidence.

App. at 660-63.

On direct appeal, the South Carolina Court of Appeals affirmed the admission of Petitioner's inculpatory statement. The affirmance, in its entirety, was as follows:

PER CURIAM: Derell Green appeals his murder conviction, arguing the trial court erred in admitting his inculpatory statement. We affirm pursuant to Rule 220(b), SCACR, and the following authorities: State v. Pittman, 373 S.C. 527, 566, 647 S.E.2d 144, 164 (2007) (“In determining whether a confession was given ‘voluntarily,' this [c]ourt must consider the totality of the circumstances surrounding the defendant's giving the confession.”); Id. (explaining the totality of the circumstances in determining the voluntariness of a juvenile's confession includes “‘the youth of the accused, his lack of education or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of

detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep'” (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973))); Id. at 568, 647 S.E.2d at 165 (“Although courts have given confessions by juveniles special scrutiny, courts generally do not find a juvenile's confession involuntary where there is no evidence of extended, intimidating questioning or some other form of coercion.”); State v. Parker, 381 S.C. 68, 74, 671 S.E.2d 619, 622 (Ct. App. 2008) (“When reviewing a trial court's ruling concerning voluntariness, this [c]ourt does not reevaluate the facts based on its own view of the preponderance of the evidence, but simply determines whether the trial court's ruling is supported by any evidence.” (internal quotation marks omitted)).

See ECF No. 1-3; State v. Green, Op. No. 2014-UP-345 (S.C. Ct. App. filed October 1, 2014).

Upon review, the undersigned is constrained to find the Trial Judge's ruling not unreasonable.⁵ The Due Process Clause of the Fourteenth Amendment forbids the admission of an involuntary confession into evidence in a criminal prosecution. Miller v. Fenton, 474 U.S. 104, 109-10 (1985). In deciding whether a confession was voluntary, courts assess “the totality of all the surrounding circumstances-both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). The purpose of this test is to determine whether “the defendant's will was in fact overborne.” Miller, 474 U.S. at 116.

5 Although the South Carolina Court of Appeals issued an opinion on this Ground, it did so with minimal discussion and a string cite to authorities. Thus, the Court looks through the Court of Appeals' opinion and assesses the Trial Judge's underlying rationale to the extent the Court of Appeals' opinion provides none. See Wilson v. Sellers, 584 U.S. 122, 125 (2018) (“We hold that the federal court should ‘look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale.”).

While looking at the totality of the circumstances to determine whether a confession was voluntary, courts consider factors such as “the crucial element of police coercion; the length of the interrogation; its location; its continuity; the defendant's maturity; education; physical condition; and mental health.” Withrow v. Williams, 507 U.S. 680, 693 (1993) (internal citations omitted). Of course, it also includes “the failure of police to advise the defendant of his rights to remain silent and to have counsel present during custodial interrogation.” Id. at 693-94.

When a juvenile confesses, “special scrutiny” by the courts is warranted. Vance v. Bordenkircher, 692 F.2d 978, 980 (4th Cir. 1982); see also Dassey v. Dittmann, 877 F.3d 297, 304-05 (7th Cir. 2017) (collecting cases). “Concerns about physical exhaustion, naivete about friendly police in the context of an adversarial police interview, and intellectual disability also take on heightened importance for assessing whether a juvenile's will was overborne.” Dassey, 877 F.3d at 304-05.

In the federal habeas context, the voluntariness of a confession is not a state-court factual finding entitled to a presumption of correctness. Miller, 474 U.S. at 110 (“Without exception, the Court's confession cases hold that the ultimate issue of ‘voluntariness' is a legal question requiring independent federal determination.”). Rather, “federal habeas courts must independently apply federal law to ultimately determine whether the state court's voluntariness determination was contrary to, or an unreasonable application of, that law. Moss v. Ballard, 537 Fed.Appx. 191, 196 (4th Cir. 2013) (applying Miller post-AEDPA). That said, subsidiary factual findings of the state court are still entitled to a presumption of correctness. See 28 U.S.C. § 2254(e)(1); see also King v. Stevenson, No. CA 0:12-949-CMC-PJG, 2013 WL 3148406, at *2 n.1 (D.S.C. June 19, 2013); Crawley v. S.C. Dep't of Corr., No. CIV.A. 9:081051TLWBM, 2009 WL 580440, at *12 (D.S.C. Mar. 5, 2009) (“Although in a federal habeas proceeding the ultimate determination of the voluntariness of a confession presents a question meriting independent consideration, a state court's determination of the facts underlying the voluntariness of a confession are still entitled to a presumption of correctness.”).

Here, the Trial Judge found there was no evidence of police coercion. As the testimony from the Jackson v. Denno hearing reflects, all the detectives who spoke with Petitioner in the interview room testified that they did not promise Petitioner anything in return for his statement, or threaten him or his family in any way, or offer him some form of leniency. Petitioner testified that Detective Kramitz did not threaten Petitioner during questioning. App. at 614. Petitioner testified he was not afraid of Detectives Sturkie and Miller, and he admitted that no one forced him to sign any statement. App. at 633-34. To the extent Petitioner's testimony about Detectives Sturkie and Miller-where Petitioner testified they told him they had “people behind the glass pointing [him] out” and he would “never go home” or “never see daylight unless [he told] the truth”-raised a question about coerciveness of the interrogations, the Trial Judge inherently found this testimony not credible because he found there was “no police coercion from any evidence that's been presented.” App. at 615, 660. The same is true for Petitioner's testimony indicating that he asked to speak to his mom during the first statement, but was told he could speak to her only “when we get done.” App. at 617. Ms. Nelson's testimony indicating that police officers told her she could not accompany her son to the police station-which conflicted with Detective Kramitz's testimony that he offered her a ride, but she refused-was likewise inherently found not credible by the Trial Judge. Compare App. at 502 with App. 597-98.

The Trial Judge further found there was no evidence presented that the interrogations were excessively long. Detective Kramitz testified that the first statement began at approximately 3:45 p.m. The waiver of rights form was signed by Petitioner at 3:47 p.m., and Kramitz started taking the first statement at 3:55 p.m. Kramitz testified that the process took approximately one and one-half hours, and the statement was over sometime between 5 p.m. and 5:30 p.m. Both Sturkie and Miller indicated their conversation with Petitioner lasted no more than one-half an hour. Altogether, for the two statements, Petitioner was interviewed for no more than three and one-half hours, even when the duration of the conversation between Petitioner, Sturkie, and Miller is included. Further, Petitioner was not subjected to continuous questioning during the entirety of time in the interview room. Detective Kramitz indicated that Petitioner was not immediately interviewed after he arrived at the police station, and there was at least an hour after he gave his first statement and the time Petitioner spoke with Detectives Sturkie and Miller.

The Court of Appeals focused on these factual findings by the Trial Judge, noting that “courts generally do not find a juvenile's confession involuntary where there is no evidence of extended, intimidating questioning or some other form of coercion.” See ECF No. 1-3 at 2; State v. Green, Op. No. 2014-UP-345 (S.C. Ct. App. filed October 1, 2014).

This Court is bound by the underlying factual determinations noted above unless Petitioner can rebut them by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); see also McWee v. Weldon, 283 F.3d 179, 186 (4th Cir. 2002) (affording deference to a state court's credibility determination on testimony establishing underlying facts). Petitioner has failed to do so. Rather, he gives his view of the testimony, which he argues shows he was coerced and gave the statement involuntarily. Although the testimony produced at the hearing could lend itself to this conclusion, it could also-as the Trial Judge found-lend itself to the conclusion that the length of time did not affect the voluntariness and there was otherwise no coercion by the officers. Thus, as reasonable minds could differ, the Trial Judge's factual determinations were not unreasonable. See 28 U.S.C. § 2254(d)(2).

Petitioner argues mainly that the Trial Judge erred by not giving the “special care” required when determining the voluntariness of a juvenile's confession. Petitioner argues that, except for a single passing reference to Petitioner's “maturity,” the Trial Judge “made no mention of Petitioner's juvenility and it displays none of the special care with which a court should scrutinize the confession of a child.” ECF No. 1 at 11.

Petitioner is correct in highlighting that his youth and mental competency are also factors considered under the totality of the circumstances. See Gilliam v. Sealey, 932 F.3d 216, 236 (4th Cir. 2019) (noting “Appellees' ‘background[s] and experience[s],' such as their age, mental disabilities, and lack of prior interactions with the police, are highly ‘relevant to the totality of the circumstances' of the interrogation” (citation omitted)). Indeed, the undersigned agrees that the Trial Judge gave short shrift to Petitioner's age when ruling from the bench. However, “youth and intelligence level does not make the confession involuntary as a matter of law.” Vance, 692 F.2d at 981. Although the Trial Judge may have only made passing mention as to Petitioner's age and education/mental health, there is no indication that he did not consider it at all. The Court of Appeals also explicitly recognized Petitioner's age and intelligence as a factor. See ECF No. 1-3 at 2; State v. Green, Op. No. 2014-UP-345 (S.C. Ct. App. filed October 1, 2014) (noting the totality of the circumstances in determining the voluntariness of a juvenile's confession includes “the youth of the accused, his lack of education or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep” (citation omitted)). Moreover, the Trial Judge raised concerns about how being handcuffed to a chair for several hours in a small room might affect Petitioner, who has ADHD, and solicited arguments from the parties for his consideration.

Based on the testimony before the Trial Judge, the undersigned cannot say the Trial Judge's consideration of the totality of the circumstances was unreasonable. As the testimony at the Jackson v. Denno hearing reflects, there was no indication that “pressure, rough language, tricks, threats, inducements, or the like, [were] used at all.” Vance, 692 F.2d at 981. Further, Petitioner was not subjected to harsh conditions. Petitioner acknowledged that when he was not being interviewed, detectives checked on him and asked if he needed to use the restroom. Further, he was not deprived of food or drink. Detective Kramitz indicated that he asked Petitioner if he wanted food or drink, and Petitioner confirmed that he was not told that he could not have food or drink during the entire process. App. at 630. Petitioner also admitted that he was provided with food at some point during the process. App. at 617. Additionally, as mentioned above, the Trial Judge found there was no evidence presented that the interrogations were excessively long. That this Court may have viewed and weighed the factors under the totality of the circumstances analysis differently does not mean the Trial Judge's application was unreasonable. See Etherly v. Davis, 619 F.3d 654, 662 (7th Cir. 2010) (recognizing how “much weight to assign each factor on facts similar to those in [the petitioner's] case may differ from court to court, and reasonable jurists may certainly disagree” such that “unless the state court's application of these factors was unreasonable, the grant of [the petitioner's] habeas corpus petition must be reversed” (emphasis in original)), as amended on denial of reh'g and reh'g en banc (Oct. 15, 2010).

To be sure, this Court has misgivings as to what occurred when Petitioner was taken into custody and what was said to Petitioner while he was interrogated. See Vance, 692 F.2d at 985 (Ervin, J., dissenting) (noting “failure by police to bring in counsel or some other friendly adult cuts against the government's case that a confession was voluntary”); Dassey, 877 F.3d at 305 (“In juvenile cases, the law is particularly concerned with whether a friendly adult is present for or consents to the interrogation.”). However, as noted above, this Court is bound by the Trial Judge's factual determinations based on the testimony elicited at the Jackson v. Denno hearing. Thus, despite this Court's reservations about testimony from Petitioner and Petitioner's mother that could indicate the confession was elicited involuntarily, the Trial Judge's inherent credibility finding as to the Detectives' testimony-which ran counter to Petitioner and Petitioner's mother's testimony-constrains this Court under the presumption of § 2254(e)(1). See Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (noting “federal habeas courts [have] no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them” (citation and quotation marks omitted)).

The Court likewise is not pleased with the Trial Judge's scarce, articulated consideration of Petitioner's youth and intelligence. However, despite Petitioner's emphasis on his age and intelligence, the case law is clear that these factors are not determinative. Given the record and the other circumstances surrounding the waiver, Petitioner's youth and intelligence do not singlehandedly push the Trial Judge's analysis into the realm of unreasonableness. See Bone v. Polk, 441 Fed.Appx. 193, 197 (4th Cir. 2011) (finding a defendant's IQ did not preclude a determination that his Miranda waiver was valid in § 2254 case, even though the defendant had an IQ of 69; had established that he was mentally handicapped under North Carolina law; and had presented a doctor's affidavit testifying to his limited intellectual and reading abilities); Etherly, 619 F.3d at 657-59, 663-64 (finding the state court was not unreasonable in finding a petitioner's statement was voluntary, even though the petitioner was fifteen years old, illiterate, enrolled in special education classes, had “borderline intellectual functioning,” had no prior involvement in the criminal justice system, and no parent was present during the interview); Correll v. Thompson, 63 F.3d 1279, 1288 (4th Cir. 1995) (agreeing with the state court in a § 2254 case that a waiver was knowing, voluntary, and intelligent where a defendant with an IQ of 68 had previous experiences with law enforcement and received numerous Miranda warnings); Washington v. Murray, 952 F.2d 1472, 1482 (4th Cir. 1991) (“The testimony given at the suppression hearing amply supports the state court findings that notwithstanding Washington's sub-standard mental capacity, he was nevertheless mentally competent to make a knowing and intelligent waiver of his Miranda rights before making inculpatory statements.”); Vance, 692 F.2d at 981 (finding a confession voluntary even though the defendant was fifteen years old with an IQ of 62, which an expert equated to a mental age of nine)

Thus, considering, independently, the totality of the circumstances, the undersigned finds the Trial Judge's analysis was not unreasonable. See Miller, 474 U.S. at 110 (“Without exception, the Court's confession cases hold that the ultimate issue of ‘voluntariness' is a legal question requiring independent federal determination.”); Moss, 537 Fed.Appx. at 196. The Court concludes that Petitioner has not demonstrated that the Trial Judge unreasonably misapplied clearly established federal law as decided by the Supreme Court in his ruling, or that the Trial Judge made objectively unreasonable factual findings. See 28 U.S.C. § 2254(d), (e)(1).

B. Ground Two - ineffective assistance of counsel

Petitioner argues his Trial Counsel was ineffective at various stages of his case. Specifically, he maintains his Trial Counsel failed to present evidence of Petitioner's depression and multiple head injuries at the waiver hearing in family court-where such diagnoses would be relevant to a transfer of jurisdiction to the court of General Sessions-and at the sentencing hearing.

The United States Supreme Court has said that a meritorious ineffective assistance of counsel claim must show two things: first, that counsel's performance was deficient and, second, that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-96 (1984).

As to the first prong, a court's evaluation of counsel's performance under this standard must be “highly deferential,” to not “second-guess” the performance. Id. at 689. “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (internal quotation marks and citation omitted); see also Bowie v. Branker, 512 F.3d 112, 119 n.8 (4th Cir. 2008); Fields v. Att'y Gen. of Md., 956 F.2d 1290, 1297-99 (4th Cir. 1992).

To establish the second prong of Strickland, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable probability” has been defined as “a probability sufficient to undermine confidence in the outcome.” Id.

While Strickland itself is a deferential standard, when both § 2254(d) and Strickland apply, review is “doubly” deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011). “Thus, [t]he question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Valentino, 972 F.3d at 580 (citation and internal quotation marks omitted). Indeed, when § 2254(d) applies, the question becomes “whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id. (citation and internal quotation marks omitted).

Because of his young age, Petitioner was under the jurisdiction of the South Carolina Family Court when he was arrested and charged, and the State moved to have jurisdiction waived so he could be tried for murder in General Sessions. App. at 10; see S.C. Code Ann. §§ 63-3- 510(A)(1)(d) and 63-19-1210. A hearing was held before the Family Court Judge on August 2526, 2010. App. at 10.

At that hearing, Petitioner presented evidence from Dr. Rikki Halavonich, who testified as an expert in forensic psychiatry regarding the pre-adjudicatory waiver evaluation she conducted. App. at 258; see also App. at 1341-47. She opined that she agreed with Petitioner's diagnoses in the Department of Mental Health records of ADHD and oppositional defiant disorder, but also diagnosed him with anxiety and considered his cannabis abuse in sustained full remission. App. at 271-74; 1344-45. She noted that both herself and the State's expert thought Petitioner should be evaluated and treated for depression and anxiety. App. at 313. However, she never diagnosed him with depression, nor did she discuss any head injury and how that may impact him. After the State and Petitioner presented their witnesses relevant to his rehabilitation, the Family Court Judge concluded that “it is in the best interests of the juvenile and the protection of the community to transfer the juvenile to the jurisdiction of circuit court, general sessions.” App. at 358.⁶

6 At the hearing, Petitioner also initially argued that the transfer statute was unconstitutional under the Eighth Amendment of the United States Constitution. App. at 26-31. The Court ruled that it would be an abuse of discretion to hold the statute unconstitutional in light of precedent from the Supreme Court of South Carolina. App. at 31.

Trial Counsel presented this same evidence to the Trial Judge at sentencing for mitigation purposes. See App. at 1340-47. In her sentencing memorandum, Trial Counsel emphasized the ADHD diagnosis and the untreated anxiety disorder. App. at 1318-19. At sentencing, the Trial Judge expressed concern over Petitioner's struggles with anger and aggression. App. at 1190-91. The Trial Judge noted that “there is not much help in prison” and his concern was not “about protecting the prisoner [but] about protecting the general public.” App. at 1191. The Trial Judge asked Trial Counsel about her experience with Petitioner, observing she “probably [knew] him about as well as anyone in this courtroom.” App. at 1197. Trial Counsel explained that her experience was that he is scared and scared for his family. App. at 1197-98. Trial Counsel noted Petitioner was soft spoken and had minimal problems at the detention center and that the guards there constantly asked about him. App. 1199-1200. The Trial Judge ultimately sentenced Petitioner to forty years' incarceration. App. at 1202. Petitioner moved for a new trial and reconsideration of the sentence, which was denied. App. at 1218.

Petitioner raised this issue to the PCR Judge. App. at 1408. At the PCR hearing, Petitioner presented the testimony of Dr. Donna Schawrtz Maddox and his Trial Counsel. The PCR Judge accurately summarized the testimony of Dr. Maddox as follows:

First, Applicant presented the testimony of Dr. Maddox, who was qualified as an expert in forensic psychiatry without objection. Dr. Maddox testified she met with Applicant for a few hours and reviewed the trial transcript, the application for postconviction relief, the discovery, the evaluations of Applicant from the Department of Juvenile Justice (DJJ), Applicant's records from the Medical University of South Carolina, Applicant's school records, Applicant's waiver evaluation, Dr. Halavonich's report, and Applicant's mental health records in preparation for this hearing. She explained in reviewing these materials, she looked for anything that was not considered at the time of Applicant's trial and also focused on issues prevalent in younger defendants. She also testified Applicant underwent extensive evaluations prior to his trial.

Dr. Maddox further testified at the time of this crime, Applicant lived with his mother and stepfather and his five siblings. She explained it was possible Applicant shared a room in that household with his three brothers, which would have been stressful. She further explained the family had not been referred to the Department of Social Services (DSS), as Applicant's home was a stable environment; but certain stressors present were sharing a bathroom and school. She also testified Applicant had some relationship with his biological father, who had been previously incarcerated. She explained when his father was out of prison, Applicant developed a relationship with him, but his father was sent back to prison shortly thereafter.

She also testified Applicant was in special education classes at the time of this crime and also has a low average IQ. She further testified Applicant had previously been ordered to participate in the STAR program through DJJ due to prior disturbing school charges. She testified Applicant was kicked out of the STAR program because he was not motivated. She explained at the time although Applicant was described [sic] medications, his mother did not believe he was taking his medication.

Dr. Maddox diagnosed Applicant with attention deficit disorder (ADD), substance abuse disorder, behavioral disorder, and depression. She explained although there were clear indications of depression in Applicant's history, he had never been diagnosed with depression. She further explained after his evaluation at the Department of Mental Health (DMH), Applicant was diagnosed with ADD, a behavior problem-either opposition deficient disorder (ODD) or conduct disorder, and substance abuse disorder. She testified when she met with Applicant, he was not on medication for depression, and he did not show a lot of emotions. She further explained Applicant was prescribed medication for ADD, but that prescription caused side effects, so Applicant stopped taking the medication and began deteriorating. She testified, however, once Applicant was on the appropriate medication for ADD, he stabilized.

She testified ADD is manageable with medication and typically stimulants which slow motor behavior down are prescribed. Dr. Maddox testified Applicant's ADD is more treatable than others with the disease, and he was prescribed Concerta at the time of this crime. She further testified some people grow out of ADD and ODD. She explained about twenty percent of people diagnosed with ADHD exhibit symptoms of ADHD into adulthood. She also testified people with ADHD get into a lot more trouble with school; and if there is no diagnosis of ADHD, teachers usually believe the student is merely being oppositional. She testified someone diagnosed with ODD does not like rules and regulations and typically acts out verbally. She further explained, however, conduct disorder is more serious than ODD, as an individual with conduct disorder can be aggressive and the diagnosis can progress into anti-social personality disorder in adulthood. She testified Applicant has not been diagnosed with anti-social personality disorder.

Dr. Maddox further testified at the age of fourteen, which was Applicant's age at the time of the crime, there is a lack of brain development. She explained fourteen-year-old males are in the second phase of brain development, and at that time adolescent brains are beginning to process things, which usually begins around the age of twelve or thirteen. She further explained the emotional parts of the brain develop first, so young adolescents are typically aggressive and hotheads. Dr. Maddox also testified the judgment portions of the brain are usually finished developing around the age of seventeen. She testified typical fourteen-year-old[s] do not like their parents, want to hang out with their friends, and do no appreciate the consequences of their actions. Dr. Maddox also testified a fourteen-year-old knows that murder is wrong, but does not understand the full consequences. She further testified Applicant was not a typical functioning fourteen-year-old, however, because [his] brain was less developed due to his learning disability, depression, and ADD. She further explained the combination of these diagnoses and the lack of brain development made Applicant more impulsive and easily irritable.

She also testified Applicant's head injury was not explored at the time of his trial, and the defense expert at trial was unaware of the head injury. She testified Applicant has a scar on his head from when he was hit in the head with a board while working for his grandfather, and he was also hit by a car when he was on his bicycle. Dr. Maddox further testified she did not perform any neuropsychological testing, so it is difficult to tell what effects these injuries had on Applicant; but Applicant does report headaches. She explained Applicant's brain injury needs to be considered.

She also testified Applicant appeared more passive and appeared to be a follower. She explained Applicant was easily suggestible and subject to bullying by his peers. She testified the victim had “ganged” Applicant and stolen his necklace prior to this shooting. She explained waiting a month to do something to the victim could have been part of Applicant's depression.

Dr. Maddox testified [that,] at sentencing, the court had all of the information concerning Applicant's learning disability, but did not have any information regarding depression. She explained the court had all of Applicant's prior evaluations and diagnoses at the time of sentencing, but did not have any information regarding Applicant's head injury nor his depression. She testified juveniles with depression typically get angry, are impulsive, and have an impaired capacity, all of which should have been presented as mitigating factors at sentencing. She explained Applicant's depression existed before he was sentenced, which constricted his affect. She further explained Applicant would not have shown a lot of emotion and his speech would have been flat. She further testified, however, depression does not cause someone to commit murder. She testified people with depression are more likely to harm themselves and commit suicide than they are to commit homicide. She testified there was nothing impulsive about Applicant following the victim down the street, nor shooting the victim twice. She explained these actions exhibited poor judgment.

She further testified the life expectancy for someone who is incarcerated is 21.8 years less than someone who is not incarcerated. She testified the average life expectancy of an individual in prison in fifty-five years.

App. at 1401-04.

The PCR Judge accurately summarized Trial Counsel's testimony as follows:

Following Dr. Maddox's testimony, Applicant presented the testimony of Counsel. Counsel testified Applicant was fourteen at the time of the crime, so he was initially in family court. She testified the State then wanted to waive Applicant up to General Sessions, so Applicant went through the evaluation process. She explained Applicant was initially evaluated by DJJ, but he had difficulty understanding the form, so DJJ was not comfortable moving forward. She further explained Applicant then underwent competency evaluations by DMH and the Department of

Disabilities and Social Needs (DDSN), and he was found competent in both of those evaluations. She testified Applicant then underwent evaluations through DJJ and Counsel's defense experts, whom she hired, Dr. Halavonich and Dr. Holmstrom, who evaluated Applicant's IQ. She further testified Applicant had a low IQ, but the tests Dr. Holmstrom was using were outdated, which caused the scores to be lower, so she disregarded Dr. Holmstrom's tests. She further testified Dr. Halavonich testified in family court. Counsel testified after this process, Applicant was waived up to General Sessions.

Counsel testified none of Applicant's co-defendants were waived up to General Sessions. She explained Daqone, who provided the gun to Applicant, was charged as an accessory after the fact and not waived up. She further explained Rashawn, who was charged with accessory after the fact, was also not waived up. She further testified none of Applicant's co-defendants were adults, and Applicant was the only one with “adult charges.”

She also testified at the time of trial, there was a lot of focus on Applicant's ADHD and anxiety issues. She testified there were signs of depression indicated, but no one ever diagnosed Applicant with depression at the time. She further testified she provided the court with a sentencing memorandum, arguing Applicant was, indeed, a child. She explained she attempted to bring to the court's attention brain development in juveniles and also attempted to reiterate to the court Applicant was sixteen years old at the time of the trial but only fourteen years old at the time of the shooting. She further explained the sentencing memorandum included Applicant's background, his limited treatment, Dr. Halavonich's evaluation, the waiver evaluation, the fact adolescents are different than normal adults, and letters from Applicant's language arts teacher and guidance counselor. Counsel testified she submitted all of the information she had at the time to the court. She stated, however, she did not have any information regarding Applicant's depression and head injury. She testified in her motion to reconsider the sentence, she presented some additional information to the court. Counsel further testified Applicant's case was before Aiken v. Byars and also before the life expectancy studies for inmates, which Dr. Maddox cited. She testified, however, Applicant was not subject to a mandatory life without the possibility of parole (LWOP) sentence, and Applicant was only sentenced to forty years.

She further testified she would have wanted Dr. Maddox to testify at sentencing. She explained there was a lot of focus on Applicant's anxiety issues, and he was afraid to testify. She explained Dr. Maddox's testimony at sentencing would have helped Applicant, particularly in light of the depression and head injury Dr. Maddox noted. She further testified in light of the head injury, she would have wanted to have additional testing done on Applicant.

Counsel also testified Applicant went to the same school as Rashawn, and Applicant, Rashawn, Daqone, and Antonio all met up in front of the school on the day of the shooting. She further testified Rashawn initially told law enforcement he

did not see the shooting but later gave a statement, which he did not sign, implicating Applicant. She explained the first statement was taken on February 12, 2010, and Rashawn indicated he did not see the shooting but heard the shots and ran away. She further explained Rashawn's second statement was given later that same day, and he stated he saw Daqone pass Applicant something and then Applicant shoot. She testified [that,] at trial, Rashawn testified Daqone told him to back off, and then he saw Applicant shoot the victim. She explained Rashawn's testimony was harmful to Applicant at trial. Counsel testified her investigator met with Rashawn, and he did not recant seeing Applicant shoot the gun at that time.

She also testified there were two other witnesses to the shooting, and each of them gave an initial statement but changed their stories later, indicating they saw the shooting. She explained both Antonio and Jacquintas identified Applicant and gave varying accounts of what they saw to law enforcement. She further explained a school administrator identified Applicant and indicated Applicant was wearing a camouflage jacket. She further testified she was able to bring out every witness's inconsistencies in their statement at trial.

Counsel also testified Applicant had a difficult time opening up to her, and she believed he was holding things back. She explained she did not know if Applicant's demeanor was due to fear, as his family was receiving threats at the time. She further explained Applicant was not difficult with her. She testified Applicant was both polite and soft spoken.

App. at 1404-07 (footnotes removed).

After considering the testimony, judging the credibility of the witnesses, and reviewing the materials presented, the PCR Judge found:

Applicant alleges Counsel was ineffective for failing to present evidence of his depression and head injuries to the sentencing court in mitigation. Defense counsel is not required to investigate “every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing.” Wiggins v. Smith, 539 U.S. 510, 533 (2003). Furthermore, defense counsel is not required to present mitigating evidence at sentencing in every case. Id.

Here, Counsel had Applicant evaluated by numerous mental health professionals prior to trial, and she presented the court with those reports at sentencing. Indeed, Counsel submitted a thirty-page sentencing memorandum to the court at the time of sentencing, which included not only all of the evaluations but also letters and statements from people in Applicant's community who spoke to his good character. Additionally, ten days after sentencing Counsel submitted to the court a motion to reconsider the sentence and included additional information with that motion. In fact, Counsel submitted a considerable amount of information regarding Applicant's mental health, including his diagnoses of ADHD and ODD, to the trial

court. Moreover, these evaluations did not find any history of any head injury to Applicant and further indicated Applicant was on medication to treat his ADHD. The evaluations further indicated Applicant could manage his anger. Accordingly, Counsel presented all of the information she had at the time to the trial court. Based on the forgoing, this Court finds Applicant has failed to establish Counsel was deficient.

Similarly, this Court finds Applicant has failed to establish any resulting prejudice from this alleged deficiency. A trial court has broad discretion in imposing criminal sentences within the limits prescribed by law. State v. Franklin, 267 S.C. 240, 226 S.E.2d 896 (1976); Clark v. State, 259 S.C. 378, 192 S.E.2d 209 (1972). The courts normally have no discretion to correct a sentence given within statutory limits. To be entitled to relief, the applicant must prove the alleged excessive sentence was the result of partiality, prejudice, oppression or corrupt motive, or that the sentence constitutes cruel and unusual punishment per se. Clark, 259 S.C. 378, 192 S.E.2d 209; State v. Cogdell, 273 S.C. 563, 257 S.E.2d 748 (1979). Additionally, in Miller v. Alabama, the United States Supreme Court established “an affirmative requirement that courts fully explore the impact of the defendant's juvenility on the sentence rendered” when sentencing a juvenile defendant. Byars, 410 S.C. at 543, 765 S.E.2d at 577.

At sentencing the trial court took the time to review the thirty-page sentencing memorandum, which Counsel had introduced. See Sentencing Tr. 4-5. In that memorandum, Counsel particularly highlighted the fact Applicant was only fourteen years old at the time of the murder, and his learning disability and other mental health diagnoses made him more like a child than a typical juvenile criminal defendant. The court thoroughly reviewed the memorandum, and following its review, the court was particularly concerned Applicant had been kicked out of the STAR program because of threatening other participants in the program and then committing this murder shortly thereafter. Sentencing Tr. 14-15. Moreover, after taking not only Counsel's sentencing memorandum but also the victim impact letters into account, the court sentenced Applicant to a term of imprisonment of forty years. Sentencing Tr. 24-26.

App. at 1409-11 (footnotes omitted). The PCR Judge concluded, based on all the above, that Petitioner did not establish he was deprived of effective assistance of counsel or show any other constitutional violations necessitating a new trial. App. at 1412.

Upon review, the undersigned finds that the state court did not apply Strickland unreasonably or base its adjudication on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); Valentino, 972 F.3d at 580 (noting the question is not whether a federal court considers the state court's determination under the Strickland standard to be incorrect, but whether that determination was unreasonable).

Trial Counsel has “a duty to reasonably investigate and present mitigation evidence at sentencing.” Campbell v. Polk, 447 F.3d 270, 282 (4th Cir. 2006). However, “Strickland does not require counsel to investigate every conceivable line of mitigating evidence,” nor does “Strickland require defense counsel to present mitigating evidence at sentencing in every case.” Wiggins v. Smith, 539 U.S. 510, 533 (2003). Indeed, “strategic choices made after less than complete investigation are reasonable only to the extent that reasonable professional judgments support the limitations on investigation.” Id. (quotation marks and citation omitted).

Consequently, courts focus on whether the investigation supporting Trial Counsel's decision not to investigate further or not to introduce mitigating evidence was, itself, reasonable. See id. at 523. In assessing Trial Counsel's investigation, courts must “conduct an objective review of their performance, measured for reasonableness under prevailing professional norms, which includes a context-dependent consideration of the challenged conduct as seen from counsel's perspective at the time” Id. (internal citation and quotation marks omitted). While “conducting this inquiry, we ‘consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.'” United States v. Runyon, 994 F.3d 192, 207 (4th Cir. 2021) (quoting Wiggins, 539 U.S. at 527).

In considering the prejudice prong under Strickland, courts are required to “consider ‘the totality of the available mitigation evidence - both that adduced at trial, and the evidence adduced in the habeas proceeding' - and ‘reweigh it against the evidence in aggravation.'” Id. at 209 (quoting Porter v. McCollum, 558 U.S. 30, 41 (2009)). In other words, the question of whether Trial Counsel's deficiency prejudiced Petitioner “centers on whether there is a reasonable probability that, absent counsel's errors, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant” the sentence rendered. Mahdi v. Stirling, 20 F.4th 846, 904 (4th Cir. 2021); see also Wong v. Belmontes, 558 U.S. 15, 20 (2009) (per curiam) (observing that to establish prejudice, the petitioner must show “a reasonable probability” that had counsel presented the evidence the court “would have returned with a different sentence”).

Here, the PCR Judge's findings as to deficiency and prejudice were not unreasonable. Regarding deficiency, the PCR Judge noted that Trial Counsel had Petitioner evaluated by numerous mental health professionals prior to trial and presented their findings to the Trial Judge in her sentencing memorandum. Indeed, Trial Counsel's sentencing memorandum included all of the reports from the mental health evaluations as well as character statements from people who knew Petitioner. Further, Trial Counsel submitted additional information to the Trial Judge concerning Petitioner's mental health in her motion to reconsider the sentence. This motion to reconsider the sentence contained information pertaining to Petitioner's diagnoses of ADHD and ODD, as Trial Counsel testified at the PCR hearing that the focus was mainly on Petitioner's ADHD and anxiety issues. This all supports the conclusion that Trial Counsel was adequately investigating the lines of mitigation that were the most likely to help Petitioner at sentencing.

Nevertheless, Petitioner points out that Trial Counsel's expert at the waiver hearing before the Family Court Judge testified that in her opinion Petitioner should be evaluated and treated for depression. ECF No. 1 at 20; see also App. at 313. Petitioner argues Trial Counsel never pursued having Petitioner evaluated or treated specifically for depression and failed to explore that potential diagnosis at the waiver hearing or during sentencing.

The undersigned is unpersuaded that this mention of possible depression during the waiver hearing shows Trial Counsel was deficient in her investigation, and it certainly does not make the PCR Judge's finding to the contrary unreasonable under the doubly deferential lens of § 2254(d) and Strickland. See Harrington, 562 U.S. at 105. To be sure, Trial Counsel testified at the PCR hearing that there were indications of Petitioner's depression, but she noted that none of the evaluations-which she specifically obtained from her investigation-yielded a depression diagnoses. App. at 1285. She testified that she presented all of the mitigating evidence she had to the court and that she did not have any information concerning Petitioner's head injuries or depression. Trial Counsel's suggestion that she could have possibly represented Petitioner better does not show she was deficient, and the PCR Judge's finding that Trial Counsel provided adequate representation was not unreasonable under Strickland's standard. See Strickland, 466 U.S. at 689 (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time."” (emphasis added)).

Moreover, Trial Counsel was not a doctor. Trial Counsel consulted numerous mental health experts to develop a defense and mitigating evidence. Trial Counsel had Dr. Halavonich, a forensic psychiatrist, evaluate Petitioner and provide reports as to her findings. Notably, Trial Counsel's testimony at the PCR evidentiary hearing highlights the fact that she had Petitioner evaluated numerous times and presented all of the mitigating evidence made available to her at the time. Trial Counsel made reasonable efforts to investigate any mitigating evidence relating to Petitioner's mental health, and reasonably relied on the evaluations and findings of experts for the mitigation evidence used in Petitioner's case. Compare Owens v. Stirling, 967 F.3d 396, 414 (4th Cir. 2020) (holding the PCR court's finding-that Sentencing Counsel's mitigation investigation was reasonably thorough-did not warrant relief under the dually deferential standards of review where the “state court reasonably determined that ‘[t]his is not a case in which the defendant's attorneys failed to act while potentially powerful mitigation evidence' was available, but rather one where their ‘decision not to seek more . . . than was already in hand fell within the range of professionally reasonable judgments'” (citation omitted)), with Gray v. Branker, 529 F.3d 220, 229 (4th Cir. 2008) (noting Petitioner's attorneys were confronted repeatedly with indications of Petitioner's mental impairments, but “without making reasoned strategic decisions, counsel ignored these red flags and failed to investigate for mental health evidence or consider introducing evidence on that issue”). Despite Trial Counsel's apparent belief that she could have done more in investigating Petitioner's potential depression, “Strickland does not guarantee perfect representation” but rather only a “reasonably competent attorney.” Harrington, 562 U.S. at 110 (noting that “there is no expectation that competent counsel will be a flawless strategist or tactician” and that “an attorney may not be faulted for a reasonable miscalculation or lack of foresight”). The undersigned agrees with the PCR Judge that Trial Counsel's investigation was reasonable.

Regarding prejudice, the PCR Judge found Petitioner failed to show his sentence would have been different. In coming to this conclusion, the PCR Judge inherently found that had the Trial Judge been apprised of Petitioner's head injuries and depression it would not have changed his sentence. The Trial Judge considered Petitioner's age, mental health diagnoses, sentencing memorandum, and victim impact letters. The Trial Judge was particularly concerned that Petitioner was removed from the STAR program for threatening other participants then committing this murder shortly thereafter. Petitioner has not shown how presenting the head injuries and depression would have changed the result, especially considering Dr. Maddox's testimony that Petitioner's actions were not impulsive and were a result of poor judgement. Indeed, she testified that juveniles with depression typically get angry, are impulsive, and have an impaired capacity, but further testified people with depression are more likely to harm themselves and commit suicide than they are to commit homicide. She testified that there was nothing impulsive about Petitioner following the victim down the street, nor shooting the victim twice; rather, she explained these actions exhibited poor judgment. Additionally, with regard to the head injuries, Dr. Maddox testified that she did not perform any neuropsychological testing, so it was difficult to tell what effects these injuries had on Petitioner, other than the fact Petitioner reported headaches. See App. at 1403-04.

Although Dr. Maddox's testimony may have been helpful, it is not so much that its introduction would have led to a reasonable probability that the sentence would have been different. See Strickland, 466 U.S. at 694 (noting a “reasonable probability” has been defined as “a probability sufficient to undermine confidence in the outcome” of the proceeding). Accordingly, the PCR Judge's prejudice finding was not unreasonable. For all the above reasons, the undersigned recommends that Respondent's Motion be granted as to this Ground in the petition.

IV. CONCLUSION

For the reasons set forth above, it is RECOMMENDED that Respondent's Motion for Summary Judgment (ECF No. 15) be GRANTED and that the Petition be DISMISSED with prejudice.

The parties are directed to the next page for their rights to file objections to this 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 835

Charleston, South Carolina 29402

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).