Opinion
C/A No.: 1:18-3302-TMC-SVH
10-02-2019
Derrick D. Herriott, Petitioner, v. Warden Stephan, Respondent.
REPORT AND RECOMMENDATION
Derrick D. Herriott ("Petitioner") is an inmate at the Broad River Correctional Institution of the South Carolina Department of Corrections. He 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) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's return and motion for summary judgment. [ECF Nos. 19, 20]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion by April 8, 2019. [ECF No. 21]. On April 1, 2019, the court received a letter from Petitioner indicating he had not yet received Respondent's return and motion for summary judgment. [ECF No. 23]. The court directed Respondent to serve Petitioner with another copy and extended Petitioner's deadline to respond until May 8, 2019. [ECF No. 24]. Petitioner filed a response on April 3, 2019 [ECF No. 26] and a supplement to his response on April 26, 2019 [ECF No. 30]. Respondent did not file a reply.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends granting Respondent's motion for summary judgment. I. Factual and Procedural Background
The evidence at trial established the following facts, which Petitioner does not dispute. On March 16, 2007, Petitioner had an altercation with his girlfriend in her apartment and shot her 14 times with an assault rifle. Neighbors in the apartment complex heard the gunshots and witnessed Petitioner exit the apartment holding a gun. Petitioner was arrested and the Sumter County Grand Jury indicted him for murder and possession of a firearm during the commission of a violent crime. [ECF No. 19-3 at 80-81].
Petitioner proceeded to trial on November 10, 2008, before the Honorable George C. James, Jr., Circuit Court Judge. [ECF No. 19-1 at 3]. Petitioner was represented by William Ceth Land, Esq. Id. After a three-day trial, the jury found Petitioner guilty, but mentally ill, and Judge James sentenced him to life in prison without the possibility of parole. [ECF No. 19-3 at 82-83].
Petitioner appealed his conviction and sentence and, through a counseled Anders brief, asserted:
Anders v. California, 386 U.S. 738, 744 (1967), requires counsel who seeks to withdraw after finding the "case to be wholly frivolous" following a "conscientious examination" must submit a brief referencing anything in the record that arguably could support an appeal, furnish a copy of that brief to the defendant, and after providing the defendant with an opportunity to respond, the reviewing court must conduct a full examination of the proceedings to determine if further review is merited.
[t]he trial judge committed reversible error by failing to instruct the jury on the defense of insanity and that, "if the jury believed that the defendant was in such a state of mind on account of its derangement or impairment as to render him incapable of knowing the distinction between right and wrong at the time he committed this act, that . . . he would not be responsible," as provided by State v. Lloyd, 85 S.C. 73, 67 S.E.2d 9, 11 (1910).Id. at 397.
In addition, Petitioner filed a pro se appellate brief that presented the following issues:
1) Did the trial court err, and was the appellant's 5th, 6th, 14th Amendment rights of the U.S. Constitution violated, as well as Article IV § 2, and his Due Process Rights violated, by the prosecuting body and trial court judge charging the jury that malice can be inferred by use of a deadly weapon?
2) Did the trial court err, and was the Appellant's 5th, 6th, 14th Amendment rights of the U.S. Constitution violated, as well as Article IV § 2, and his Due Process Rights violated, by the trial court allowing testimony by various witnesses to be entered into court record, and or allowing their statements related thereto to be entered into evidence in the case or trial, when there was no evidence adduced at trial that the witnesses were given a copy of the statements the time they made them, nor was there given to them a copy of a receipt for the taking thereof?
3) Did the trial court err, and was the Appellant's 5th, 6th, 14th Amendment rights of the U.S. Constitution violated, as well as Article IV § 2, and his Due Process Rights violated due to the court denying the Appellant's Motion for Direct Verdict, because no rational trier of facts would find the Appellant guilty of every
fact and element of the offense(s) charged in the indictment(s), especially since all the statements and testimony are taken in violation of the statutes?Id. at 412-13 (errors in original). After reviewing the record and arguments, the South Carolina Court of Appeals ("Court of Appeals") dismissed Petitioner's appeal and granted counsel's motion to be relieved. State v. Harriott, 2012-UP-427 (S.C. Ct. App. July 18, 2012).
On January 31, 2013, Petitioner filed a pro se application for post-conviction relief ("PCR"), asserting trial counsel was ineffective for failing to: (1) "request a charge on the defense of insanity" or "object to its omission"; (2) "object to the court's verdict form, not including all four [] forms of verdict, when presented to the jury as required by statute"; (3) "object to an improper instruction" regarding inferred malice; and (4) "petition the Court, prior to the petit jury being sworn, for a motion to quash" the indictment. [ECF No. 19-2 at 9-19]. The Honorable R. Ferrell Cothran, Jr., Circuit Court Judge, held an evidentiary hearing on May 29, 2014, at which Petitioner was represented by Casey Cornwell, Esq. Id. at 25. On July 11, 2014, Judge Cothran denied Petitioner's PCR application and dismissed it with prejudice. Id. at 55-65.
The hearing transcript incorrectly lists L. Boozer, Esq., as Petitioner's PCR counsel. [ECF No. 19-2 at 25].
On November 3, 2014, Petitioner filed a second PCR application pursuant to Austin v. State, 409 S.E.2d 395 (S.C. 1991), asserting his PCR counsel refused to file a timely notice of appeal from the denial of his first application. [ECF No. 19-3 at 6-7]. On July 1, 2015, appointed counsel Lance S. Boozer, Esq., amended Petitioner's application to add claims that Trial counsel was ineffective for failing to (1) move to quash the indictment prior to the jury being sworn and (2) object to the verdict form's omission of not guilty by reason of insanity. Id. at 31.
Austin created a limited exception to the rule barring ineffective assistance of PCR counsel claims where prior PCR counsel failed to appeal the denial of the application. Under those circumstances, a PCR applicant may petition the South Carolina Supreme Court for discretionary review of the dismissal of his application.
The State moved to dismiss Petitioner's ineffective assistance of counsel claims as beyond the scope of Austin review. Id. at 27-29. The Honorable Steven H. John, Circuit Court Judge, held a hearing on the State's motion to dismiss on July 14, 2015, at which the State consented to a belated appeal of Petitioner's initial PCR action. Id. at 33-44. On September 16, 2015, Judge John granted Petitioner's request for an Austin appeal and denied his ineffective assistance of counsel claims as successive and time-barred. Id. at 75-79.
Petitioner's counsel filed a timely notice of appeal and Appellate Defender Laura R. Baer, Esq., filed an Austin petition in the South Carolina Supreme Court. [ECF Nos. 19-5, 19-6]. Separately, counsel filed a Johnson petition for a writ of certiorari regarding Petitioner's initial PCR action asking whether "the PCR court erred in finding that trial counsel provided effective assistance where he failed to present any evidence in support of or request a jury charge on insanity." [ECF No. 19-7 at 3]. Petitioner filed a pro se brief in support of the Johnson petition to raise the additional issues of:
Johnson v. State, 364 S.E.2d 201 (S.C. 1988) (applying the factors of Anders v. California, 386 U.S. 738 (1967), to post-conviction appeals). Anders requires that counsel who seeks to withdraw after finding the "case to be wholly frivolous" following a "conscientious examination" must submit a brief referencing anything in the record that arguably could support an appeal, furnish a copy of that brief to the defendant, and after providing the defendant with an opportunity to respond, the reviewing court must conduct a full examination of the proceedings to determine if further review is merited. Anders, 386 U.S. at 744.
1. Whether the appellant defender properly filed a Johnson brief as opposed to a merits brief on the issues of the PCR court's finding as to counsel's trial performance, as it relates to the statutory forms of the verdict?[ECF No. 19-8 at 2 (errors in original)]. The South Carolina Supreme Court transferred jurisdiction to the Court of Appeals, which conducted an Austin review of Petitioner's first PCR action, denied the petition for a writ of certiorari, and granted counsel's request to withdraw on October 30, 2018. [ECF No. 19-9]. The Court of Appeals issued the remittitur on November 19, 2018. [ECF No. 19-10]. II. Discussion
2. Whether such failure by the court to charge "all statutory" options, rendered the trial fundamentally unfair, as well as being a "structural error", requiring 'automatic reversal' of the conviction and sentence?
3. Whether the PCR court's resolution of the matters above inconsistent with statutory, constitutional and well established rules of criminal and civil procedure?
A. Federal Habeas Issues
Petitioner raises the following grounds in his federal petition for a writ of habeas corpus: Ground One: Ineffective Assistance of Counsel, in violation of Petitioner's Sixth Amendment rights to a fair trial.
Supporting Facts: Under South Carolina law, once a defendant asserts an insanity plea, the verdict form is suppose[d] to convey four (4) possible findings by petit jurors. In the instant case at bar, the court submitted only three (3) possible jury findings. Two of which favored the State, resulting in a 66% chan[c]e of conviction, and only a 33% chance of a verdict based on the evidence introduced at trial. Whereas, counsel failed to object.Ground Two: Ineffective Assistance of Counsel, in violation of Petitioner's Sixth Amendment rights, by failing to obtain "expert witness" involving Petitioner's mental state. Ground Three: Ineffective Assistance of Counsel, in violation of Petitioner's Sixth and Fourteenth Amendment rights, where counsel failed to object to the court's Malice instructions to jurors. [ECF No. 1 at 5-8].
B. Standard for Summary Judgment
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. 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.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e).
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 ("AEDPA"), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (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 410. Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
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. Id. The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require a habeas petitioner to 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.
28 U.S.C. § 2254.
(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). In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767 (S.C. 1976). If the PCR court fails to address a claim as is required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will result in the application of a procedural bar by the South Carolina Supreme Court. Marlar v. State, 653 S.E.2d 266 (S.C. 2007). Furthermore, strict time deadlines govern direct appeal 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.
In Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009), the Fourth Circuit found that, prior to the Supreme Court of South Carolina's November 5, 2007, decision in Marlar, South Carolina courts had not been uniformly and strictly enforcing the failure to file a motion pursuant to Rule 59(e), SCRCP, as a procedural bar. Accordingly, for matters in which there was a PCR ruling prior to November 5, 2007, the court will not consider any failure to raise issues pursuant to Rule 59(e) to effect a procedural bar.
The United States Supreme Court has held that "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process"—which includes "petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This opportunity must be given by fairly presenting to the state court "both the operative facts and the controlling legal principles" associated with each claim. Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (citing Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (internal quotation marks omitted)). That is to say, the ground must "be presented face-up and squarely." Mallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994) (citation and internal quotation marks omitted).
The South Carolina Supreme Court has held that the presentation of claims to the state court of appeals without more is sufficient to exhaust state remedies for federal habeas corpus review. State v. McKennedy, 559 S.E.2d 850 (S.C. 2002); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454 (S.C. 1990). The McKennedy court held that In re Exhaustion had placed discretionary review by the South Carolina Supreme Court "outside of South Carolina's ordinary appellate review procedure pursuant to O'Sullivan." 559 S.E.2d at 854. As such, it is an "extraordinary" remedy under O'Sullivan, "technically available to the litigant but not required to be exhausted," Adams v. Holland, 330 F.3d 398, 403 (6th Cir. 2003).
Because the South Carolina Supreme Court has held that presentation of certain claims to the Court of Appeals without more is sufficient to exhaust state remedies, a claim is not procedurally barred from review in this court for failure to pursue review in the South Carolina Supreme Court after an adverse decision in the Court of Appeals.
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 Supreme Court explains:
. . . [state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984).
However, if a federal habeas petitioner can show both (1) "'cause' for noncompliance with the state rule[,]" and (2) "'actual prejudice resulting from the alleged constitutional violation[,]'" the federal court may consider the claim. Smith v. 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), superseded by statute on other grounds (AEDPA).
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 Matthews v. Evatt, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Teague v. Lane, 489 U.S. 288, 297-98 (1989); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)).
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 state courts 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 which 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 (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.
D. Analysis
Respondent admits Petitioner's grounds are exhausted and his petition is timely. [ECF No. 19 at 13, 20]. Respondent asserts Petitioner properly preserved Grounds One and Two, but failed to raise Ground Three in his PCR appeal. Id. at 15.
In Ground Three, Petitioner asserts his trial counsel was ineffective for failing to object to the trial court's jury instruction on implied malice. [ECF No. 1 at 8]. Petitioner admits he raised Ground Three in his PCR application, but did not raise it in his PCR appeal and asserts ineffective assistance of counsel under Martinez v. Ryan, 566 U.S. 1 (2012), as cause for the default. Id. at 8, 11. Martinez allows a federal habeas petitioner to overcome a procedural default by showing his initial review collateral counsel (i.e., PCR counsel in South Carolina) was ineffective for failing to raise a substantial ineffective assistance of trial counsel claim. See Trevino v. Thaler, 564 U.S. 413, 423 (2013); Martinez, 566 U.S. at 14, 17-18. Because Petitioner alleges ineffective assistance of appellate counsel, Martinez does not apply. See Martinez, 566 U.S. at 16 (declining to "extend [its holding] to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial"); see also Davila v. Davis, 137 S. Ct. 2058, 2065 (2017) ("Petitioner asks us to extend Martinez to allow a federal court to hear a substantial, but procedurally defaulted, claim of ineffective assistance of appellate counsel when a prisoner's state postconviction counsel provides ineffective assistance by failing to raise that claim. We decline to do so.").
In his pro se direct appeal brief, Petitioner asserted the trial court erred by giving the implied malice instruction, but not that trial counsel was ineffective for failing to object to the instruction. [See ECF No. 19-1 at 412].
Petitioner asserts no other cause for the procedural default, nor does he claim actual innocence of the crimes. Thus, Petitioner has not shown cause to excuse the procedural default and the court cannot consider the merits of Ground Three. See Murray, 477 U.S. at 533.
Grounds One and Two are preserved for habeas review and properly analyzed under § 2254(d), which requires a federal habeas court to assess whether the state court decision unreasonably applied established Supreme Court precedent or unreasonably interpreted the facts.
1. Ground One
In Ground One, Petitioner asserts trial counsel was ineffective for failing to object to the verdict form. [ECF No. 1 at 5]. Petitioner argues under S.C. Code Ann. § 17-24-30, the verdict form should have included a "not guilty by reason of insanity" option in addition to guilty, not guilty, or guilty but mentally ill. [ECF No. 1-1 at 8].
S.C. Code Ann. § 17-24-30 provides:
In a prosecution for a crime when the affirmative defense of insanity is raised sufficiently by the defendant, or when sufficient evidence of a mental disease or defect of the defendant is admitted into evidence, the trier of fact shall find under the applicable law, and the verdict must so state, whether the defendant is:
Id.(1) guilty;
(2) not guilty;
(3) not guilty by reason of insanity; or
(4) guilty but mentally ill.
Because the jury may only find a defendant not guilty by reason of insanity if he has presented an affirmative insanity defense, the PCR court interpreted Petitioner's claim as one that trial counsel was "ineffective for failing to request the trial judge to charge the jury on the defense of insanity." [ECF No. 19-2 at 61]. Similarly, Petitioner's counseled Johnson petition presented the claim as: "The PCR court erred in finding that trial counsel provided effective assistance where he failed to present any evidence in support of or request a jury charge on insanity." [ECF No. 19-7 at 11]. Accordingly, the properly preserved claim is not that trial counsel failed to object to the verdict form based on S.C. Code Ann. § 17-24-30, but that he failed to request a charge on insanity.
In his pro se PCR appellate brief, Petitioner presented the issue of "[w]hether such failure by the court to charge 'all statutory' options, rendered the trial fundamentally unfair, as well as being a 'structural error', requiring 'automatic reversal' of the conviction and sentence." [ECF No. 19-8 at 2]. This claim of trial court error is distinct from Petitioner's current ineffective assistance of counsel claim and, thus, does not preserve his statutory interpretation-based argument that trial counsel was ineffective for not objecting to the verdict form because S.C. Code Ann. § 17-24-30 mandated inclusion of all four verdict options in his case. [See ECF No. 1-1 at 4-5, 7-8].
After reciting the applicable legal standard for claims of ineffective assistance of counsel, the PCR court found:
South Carolina has adopted the M'Naughten test to determine insanity. A defendant is insane if, at the time of the commission of the act constituting the offense, as a result of mental disease or defect, he lacked the capacity to distinguish moral or legal right from moral or legal wrong or to recognize the particular act charged as morally or legally wrong. S.C. Code Ann. § 17-24-10(A) (Supp. 1996). "[T]he key to insanity is 'the power of the defendant to distinguish right from wrong in the act itself—to recognize the act complained of is either morally or legally wrong'." State v. Wilson, 306 S.C. 498, 506, 413 S.E.2d 19, 23. "A requested charge on insanity is properly refused where there is no evidence tending to show the defendant was insane at the time of the crime charged." State v. Lewis, 328 S.C. 273, 278, 494 S.E.2d 115, 117 (1997).
In the instant case, Trial Counsel explained that Applicant was having delusions about the Victim drugging and raping him and filming the rape. Trial Counsel stated Applicant was actually suffering from rectal problems, which was tending to corroborate Applicant's illusions. Trial Counsel stated Applicant was
evaluated by two separate doctors and was found criminally responsible and competent to stand trial. Based on the foregoing, this Court finds Counsel's actions were reasonable in the circumstances, and did not fall below professional norms of reasonableness. Cherry [v. State], 300 S.C. [115], 117, 385 S.E.2d [624], 625 [(1989)] (citing Strickland). Furthermore, this Court finds Applicant has failed to allege sufficient evidence to meet his burden of proving that he was prejudiced by Counsel's alleged ineffectiveness.[ECF No. 19-2 at 59-60, 61].
Petitioner does not challenge the PCR court's application of Strickland or other established Supreme Court precedent and, after a thorough review of the record, the undersigned finds the PCR court reasonably found the evidence at trial did not support, and trial counsel reasonably decided not to request, an insanity charge.
Prior to trial, forensic psychiatrist Dr. Richard Frierson conducted an independent, court-ordered evaluation of Petitioner's competency, criminal responsibility, and capacity to conform his conduct to the requirements of the law. [ECF No. 19-1 at 247]. At the time of Petitioner's trial, South Carolina courts had qualified Dr. Frierson as an expert in forensic psychiatry over 200 times. Id. at 246. Dr. Frierson reviewed Petitioner's medical records, school records, mental health records, court records, and records from the criminal investigation, including recordings of two police interviews. Id. at 248-49. In addition, Dr. Frierson interviewed Petitioner's aunt, former boss, and an investigator and an officer associated with the investigation. Id. at 249-50. He also met with Petitioner for a two-hour evaluation. Id. at 250.
Dr. Frierson stated when Petitioner was thirteen years old, he showed a full-scale I.Q. of 69 on a school-administered test. Id. at 251. He testified an I.Q. of 69 is very low and would indicate mild intellectual disability. Id. However, Dr. Frierson opined Petitioner was cognitively and intellectually limited, possibly in the range of borderline intellectual functioning, but not intellectually disabled. Id. Dr. Frierson based this opinion on Petitioner's adaptive functioning, including his ability to hold competitive employment and obtain a driver's license. Id.
Based on his evaluation, Dr. Frierson diagnosed Petitioner with persecutory delusional disorder. Id. at 257. Dr. Frierson explained a delusion is a fixed false belief and is a common symptom of severe mental illness. Id. at 256. Petitioner's particular delusions involved the victim drugging him, allowing men to sexually assault him, filming those encounters, and publishing the videos to the internet. Id. at 255. Petitioner believed people in North and South Carolina had seen these videos and that the police were assisting the victim. Id.
Dr. Frierson found Petitioner competent to stand trial and then assessed whether he was criminally responsible and capable of conforming his actions to the law at the time of the crime. Id. at 259-60. Dr. Frierson described criminal responsibility as the capacity to distinguish legal and moral right from legal and moral wrong. Id. at 260. He indicated Petitioner told witnesses to call the police immediately after the shooting and reasoned "one doesn't say call the police unless they realize they [have] done something that could be viewed as legally and morally wrong." Id. at 260-61. Thus, Dr. Frierson opined Petitioner was criminally responsible for his actions. Id.
However, Dr. Frierson concluded Petitioner's delusions amounted to a compulsion he could not resist. Id. He opined Petitioner had a mental illness and that mental illness impaired or prevented him from being able to conform his conduct to the requirements of the law. Id. Dr. Frierson testified Petitioner "knew it was wrong to kill somebody, to kill the allege[d] victim, but there was no way out of what was happening to him." Id. at 270.
In addition, Petitioner's aunt, who raised Petitioner after he was removed from his mother's custody at nine years old, testified Petitioner attended special education classes from elementary through high school and finished high school with a certificate, rather than a diploma. Id. at 232. She stated Petitioner could read and write on a first-grade level. Id.
Petitioner's former boss testified Petitioner's mental state began to decline three or four weeks prior to the incident. Id. at 220. He stated Petitioner became withdrawn and distant and confided in him about his delusions. Id. at 218-20. He testified Petitioner was able to save money, was mentally capable of performing his job, and knew the difference between right and wrong. Id. at 225.
The first officer on the scene testified when he arrived and instructed Petitioner to get on the ground, Petitioner took off his shirt, turned around to show he did not have a weapon, and lied down on the ground. Id. at 81. Responding officers testified while they handcuffed him, Petitioner continually said "I know what I did," "I shot her," and "I did what I had to do." Id. at 82, 86.
No further evidence of Petitioner's mental state was presented at trial. All of the relevant evidence suggested Petitioner knew legal and moral right from legal and moral wrong. Petitioner fails to show otherwise and, therefore, fails to show the PCR court erred in finding trial counsel reasonably decided not to request an unsupported charge. Accordingly, Petitioner is not entitled to habeas relief on Ground One.
2. Ground Two
In Ground Two, Petitioner asserts trial counsel was ineffective for failing to develop and present expert testimony regarding his mental state. [ECF No. 1 at 6].
The PCR court considered Petitioner's claim on the merits and found
. . . Applicant's allegation that Trial Counsel was ineffective for failing to present expert testimony on his mental problems to be without merit. Trial Counsel explained that Applicant was having delusions about the Victim drugging and raping him and filming the rape. Trial Counsel stated Applicant was actually suffering from rectal problems, which was tending to corroborate
Applicant's delusions. Trial Counsel stated Applicant was evaluated by two separate doctors and was found criminally responsible and competent to stand trial. Based on the foregoing, this Court finds Counsel's actions were reasonable in the circumstances, and did not fall below professional norms of reasonableness. Cherry, 300 S.C. at 117, 385 S.E.2d at 625 (citing Strickland). Furthermore, this Court finds Applicant has failed to allege sufficient evidence to meet his burden of proving that he was prejudiced by Counsel's alleged ineffectiveness.[ECF No. 19-2 at 63-64].
Petitioner contends trial counsel should have obtained an independent psychiatric expert, rather than relying on the State's examiner and asserts State examiners make findings favorable to the State in 94.5% of cases. [ECF No. 1-1 at 3]. Petitioner cites to Ake v. Oklahoma, 470 U.S. 68 (1985), as support. Id. In Ake, the Supreme Court held
when a[n indigent] defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.Ake, 470 U.S. at 83. The Court explained, "[t]his is not to say, of course, that the indigent defendant has a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own." Id. Rather, the Court's concern was "that the indigent defendant have access to a competent psychiatrist." Id. The record establishes Petitioner had access to and underwent an evaluation by Dr. Frierson. Petitioner does not dispute Dr. Frierson's competence or the adequacy of the evaluation. Thus, Petitioner has not shown trial counsel or the PCR court committed any error under Ake v. Oklahoma.
In accordance with Strickland, "[c]ounsel in criminal cases are charged with the responsibility of conducting 'appropriate investigations, both factual and legal, to determine if matters of defense can be developed.'" U.S. v. Mooney, 497 F.3d 397, 400 (4th Cir. 2007) (quoting Coles v. Peyton, 389 F.2d 224, 226 (4th Cir. 1968)); see also Strickland, 466 U.S. at 691 ("counsel has a duty to make reasonable investigations"). However, "[t]he mere fact that . . . counsel did not shop around for a psychiatrist willing to testify to the presence of more elaborate or grave psychological disorders simply does not constitute ineffective assistance." Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir. 1992).
At the PCR evidentiary hearing, trial counsel testified he had Petitioner evaluated twice—by Dr. Frierson and then by a private psychiatrist—and hoped the results would support an insanity defense. [ECF No. 19-2 at 46, 48]. However, both examiners found Petitioner knew right from wrong when he committed the crime. Id. trial counsel stated he did not have Petitioner evaluated further because he assumed any other psychiatrist would come to the same result. Id. at 46. Instead, trial counsel shifted his focus to developing support for a charge on voluntary manslaughter. Id. at 46-47.
Counsel is not required to second-guess the contents of expert reports. Wilson v. Greene, 155 F.3d 396, 403 (4th Cir. 1998) (finding counsel not deficient for declining to further investigate defendant's mental health defenses after state examiner found he was not mentally ill at time of offense). And, when counsel has "reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." Strickland, 466 U.S. at 691.
The record and applicable law support the PCR court's determination that, after receiving two expert opinions that Petitioner was criminally responsible for his actions, trial counsel reasonably decided "not to spend valuable time pursuing what appeared to be an unfruitful line of investigation." Bunch v. Thompson, 949 F.2d 1354, 1364 (4th Cir. 1991). Accordingly, Petitioner is not entitled to habeas relief on Ground Two. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends Respondent's motion for summary judgment be granted and the petition be dismissed with prejudice.
IT IS SO RECOMMENDED. October 2, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
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
901 Richland Street
Columbia, South Carolina 29201
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).