Opinion
Civil Action 6:21-cv-3450-DCC-KFM
04-14-2022
Justin Hillerby, Petitioner, v. Kenneth Nelson, Warden, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge.
The petitioner, a state prisoner who is represented by counsel, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review posttrial petitions for relief and submit findings and recommendations to the district court.
BACKGROUND
The petitioner is currently incarcerated at Broad River Correctional Institution in the South Carolina Department of Corrections. He was indicted in December 2008 by the Berkeley County Grand Jury for homicide by child abuse (08-GS-08-2594) (app.955-56). The petitioner was represented by J. Michael Bosnak at trial before the Honorable Kristi L. Harrington and a jury (app. 1-843). The trial commenced on February 22, 2010. The jury found the petitioner guilty as charged (app. 832). Judge Harrington then sentenced the petitioner to life imprisonment without parole (app. 841).
The petitioner appealed and was represented by Tricia A. Blanchette in his direct appeal (app. 844-79). On February 18, 2013, a final brief was submitted to the South Carolina Court of Appeals, in which the following issues were raised:
I. Whether the trial court erred by failing to suppress the statements attributed to Appellant.
II. Whether the trial court erred by admitting the testimony of two witnesses over counsel's objection that the testimony was inadmissible prior bad act testimony pursuant to Rule 404(b), SCRE, and State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923).
III. Whether the trial court erred by admitting the testimony of Ms. Georgoulis over counsel's objections that the testimony was not relevant.(App. 849). The appellate court affirmed the petitioner's conviction and sentence in an unpublished per curiam opinion issued on July 3, 2013 (app. 935-39). The remittitur was issued on July 19, 2013 (app. 940).
Post-Conviction Relief
On September 19, 2013, the petitioner filed an application for post-conviction relief (“PCR”), raising claims that both trial counsel and appellate counsel were ineffective (app. 941-48). On August 31, 2015, the petitioner's PCR counsel, Jeremy A. Thompson, filed an amended PCR application on the petitioner's behalf, raising the following claims:
1. Trial counsel was ineffective for failing to consult with a forensic pathologist prior to trial and for failing to present the testimony of a forensic pathologist at trial.
2. Trial counsel was ineffective for failing to question the forensic pathologist at trial regarding his qualifications and his lack of experience in conducting autopsies at the time he conducted the victim's autopsy.
3. Trial counsel was ineffective for failing to investigate and to present a defense that an individual other than the Applicant killed the victim.
4. Trial counsel was ineffective for admitting prejudicial photographs of the deceased victim into evidence . . . .
5. Trial counsel was ineffective for failing to object to the trial court's instruction to the jury that they had two options on the verdict form and that both were guilty
....
6. Trial counsel was ineffective for failing to renew his objection to the admission of the Applicant's statements into evidence.(App. 962-63).
An evidentiary hearing was held on September 8, 2015, before the Honorable Larry Hyman (app. 965). The PCR court received testimony from the following witnesses: Dr. Michael Myer Baden, a forensic pathologist; Ray William Nash, a private investigator; appellate counsel; the petitioner; Vicky Williams, the petitioner's mother; and trial counsel (app. 965-1076). At the conclusion of hearing, Judge Hyman took the matter under advisement and requested proposed orders from both sides (app. 1075-76). An order of dismissal was filed January 21, 2016 (app.1155-69).
The petitioner filed a motion to alter or amend pursuant to South Carolina Rule of Civil Procedure 59(e) (app. 1172-74). On June 13, 2016, Judge Hyman heard argument on the motion but denied it from the bench (app. 117-83). Judge Hyman memorialized the denial in an order filed July 22, 2016 (app. 1185-86).
PCR Appeal
Mr. Thompson continued to represent the petitioner in his PCR appeal. On January 30, 2017, PCR counsel filed a petition for writ of certiorari in the Supreme Court of South Carolina (doc. 11-7). The following issues were raised in the petition:
I.
Whether the PCR court erred in concluding that defense counsel was not ineffective for failing to consult with a forensic pathologist and present the testimony of a forensic pathologist at trial inasmuch as such testimony would have shown that the Petitioner did not kill the victim?
II.
Whether the PCR court erred in concluding that defense counsel was not ineffective for introducing inflammatory autopsy photographs of the victim at trial?(Doc. 11-7 at 3). On October 30, 2017, the petitioner's case was transferred to the South Carolina Court of Appeals (doc. 11-8). The court granted certiorari as to the first question in the petition (doc. 11-11). Following briefing by both parties, Mr. Thompson had to withdraw as counsel, and Taylor D. Gilliam replaced him (doc. 11-17; see also docs. 11-12, 11-13). On August 19, 2020, the South Carolina Court of Appeals issued an opinion affirming the PCR court's denial of PCR (doc. 11-18). The petitioner filed a petition for rehearing, which was denied (docs. 11-19, 11-20).
On October 21,2020, the petitioner filed a petition for writ of certiorari with the South Carolina Supreme Court, asking
Whether the Court of Appeals erred in affirming the PCR court, where trial counsel provided ineffective assistance by failing both to consult with a forensic pathologist and to present the testimony of a forensic pathologist at trial, where the testimony would have shown that Petitioner did not kill the decedent?(Doc. 11-21 at 4). The petition was denied (doc. 11-23). The remittitur issued on June 23, 2021, and was filed with the Berkeley County Clerk of Court on July 2, 2021 (doc. 11-24).
Underlying Case Facts
The following facts were set forth by the South Carolina Court of Appeals as part of the opinion in the petitioner's PCR appeal:
This case arises out of the death of a twenty-two-month-old child (Victim). At the time of the incident, Petitioner was living, on and off, with Victim's mother (Mother), Mother's eight-year-old daughter (Daughter), and a couple who rented a room from Mother. The day before Victim was found deceased in his crib, Mother and Petitioner took Victim and Daughter to the neighborhood pool. They spent the day drinking with friends at the pool.
Two teenagers at the pool that day testified Victim was not properly supervised. For example, these teenagers pulled Victim-a toddler-out of the pool on multiple occasions after he jumped in the pool's deep end. On one such occasion, one of the teenagers recalled Petitioner saying “you should have just kept him in there.” This same witness also observed Petitioner yell at Victim, “yank” Victim's arm, and tell Victim to “stand in the corner because nobody cares about you.”
After leaving the pool and returning to Mother's house, Mother went out drinking with friends while Petitioner watched Daughter and Victim. Mother left after 7:00 p.m. She testified that Victim was eating in his highchair when she left, he looked fine, and he was acting normally.
The couple renting a room from Mother arrived home around 7:00 p.m. and spent the remainder of the evening in their room watching television and sleeping. One roommate recalled Daughter was in her room when they arrived at the house and
that Victim seemed okay but looked exhausted from being at the pool all day.
Mother arrived home at 1:00 a.m. and was intoxicated. She found Petitioner asleep on the couch and then went into her bedroom and looked at the baby monitor to check on Victim. She did not go into Victim's room. Mother then went into the roommates' room and argued with them about rent before getting into bed with Petitioner and going to sleep. Mother woke up around 6:15 a.m. the next day to get Daughter ready for school. After Daughter left, Mother went back to sleep.
Mother testified that when she and Petitioner got out of bed at 10:00 a.m. she realized Victim was not awake. When Mother opened the door to Victim's room to check on him, Petitioner told her to let Victim keep sleeping and to leave the door open so Victim could wake up on his own. Mother went to Victim's crib after she noticed something on Victim's face when she started to leave Victim's room. She became hysterical after finding Victim cold to the touch and stiff “like a board.” Petitioner called 911 and emergency personnel verified Victim was deceased.
Petitioner gave several statements to police. Initially, he denied ever striking Victim. In a second statement, he told police he inadvertently hit Victim's head on a door frame and on the crib when putting Victim to bed and that earlier in the evening Victim's head collided with Petitioner's knee as the boy ran toward Petitioner, causing Victim to fall to the floor.
In his third and final statement to police, Petitioner stated he “smacked” Victim open-handed “a couple of times” after Victim spilled Petitioner's drink. Petitioner said this knocked Victim off his feet and caused Victim to hit his head on the floor. Petitioner told police that Victim looked like he was falling asleep after this, so Petitioner put Victim to bed.
Petitioner's third statement to police was similar to a statement he made to Mother during a phone call from jail following his arrest. There, in response to Mother's question about what had happened, Petitioner answered “Baby, I smacked him, I didn't smack him that hard, but when he hit the floor is when, I guess, it started. And, I didn't notice it because I was drunk, I guess. And, I put him on the futon.”
At trial, Petitioner denied ever hitting Victim and claimed he only told Mother he smacked Victim in order to be consistent with the statement he gave to police. Petitioner testified his statements to police were prompted by the officers telling him repeatedly that people did not get in trouble for accidental deaths. One of the officers who questioned Petitioner admitted, during a Jackson v. Denno hearing, that police told Petitioner this may have been an accident and that he could not get into trouble for an accident. The trial court found Petitioner's statements were voluntarily, knowingly, and intelligently given.
Dr. Nicholas Batalis, the forensic pathologist who performed Victim's autopsy, testified that Victim died of “blunt head trauma” and that the manner of death was homicide. Dr. Batalis believed Victim died during a window of two to twelve hours before he was found. Dr. Batalis testified Victim had twenty-three injuries to his head including twelve bruises on his face, two scrapes on his face, and nine injuries to his skull which resulted in hemorrhaging around the brain. Dr. Batalis opined Victim could have been hit with a book or a fist, or could have been pushed against something causing his head to strike a doorway or a desk.
Dr. Batalis did not believe the injuries on Victim's skull could have been sustained by falling down or bumping into things while playing because the injuries were more severe than “normal wear and tear” and because there were so many different impact sites. Dr. Batalis explained that Victim's injuries would have immediately been symptomatic and Victim would have appeared sleepy and groggy.
On cross-examination, trial counsel asked Dr. Batalis about autopsy photographs showing what appeared to be small areas of circular discoloration on Victim's legs, arms, and torso. Dr. Batalis testified he initially believed these were bruises but that he found no fresh blood beneath the areas when he cut into them, leading him to believe these marks were instead caused by a skin condition or by the body's storage after the Victim's death. Dr. Batalis explained he did not cut into every one of these marks on Victim's body, but instead incised a representative sample and concluded none of the marks were bruises.(Doc. 11-18 at 2-4).
FEDERAL PETITION
On October 20, 2021, the court received the petitioner's Section 2254 petition (doc. 1), which raised the following grounds for relief:
Ground One: Violation of Petitioner's rights guaranteed by the Fifth and Sixth Amendment of the U.S. Constitution
Supporting Facts: The trial court violated federal law, and applied federal law unreasonably, in denying Petitioner's motion to suppress statements attributed to him on the grounds that the statements were made in violation of Miranda. Petitioner did not knowingly, intelligently, or voluntarily waive his Miranda rights. Petitioner's statements were not voluntary. The South Carolina Court of Appeals likewise violated federal law, and applied federal law unreasonably in affirming on this issue.
Ground Two: Violation of Petitioner's right to a fair trial under the U.S. Constitution.
Supporting Facts: The trial court violated federal law, and applied federal law unreasonably, in admitting prior bad acts and irrelevant, prejudicial testimony against him at trial. The South Carolina Court of Appeals likewise violated federal law, and applied federal law unreasonably in affirming on this issue.
Ground Three: Violation of Petitioner's right to the effective assistance of counsel, guaranteed by the Sixth Amendment of the U.S. Constitution.
Supporting Facts: Trial counsel was ineffective for failing to consult an independent forensic pathologist. The PCR Court violated federal law and applied federal law unreasonably in denying post-conviction relief on this ground. The South Carolina Court of Appeals and South Carolina Supreme Court likewise violated federal law and applied federal law unreasonably in affirming on this issue.(Doc. 1 at 5, 7, 8).
The respondent filed a return and a motion for summary judgment on January 12, 2022 (docs. 11, 12). The petitioner through counsel filed his response in opposition to summary judgment (doc. 13) on January 27, 2022, and the respondent filed a reply (doc. 17) on February 3, 2022. Accordingly, the motion for summary judgment is ripe for review.
APPLICABLE LAW AND ANALYSIS
Summary Judgment Standard
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. Exhaustion and Timeliness
The respondent acknowledges that the petition is timely (doc. 11 at 20-21). The respondent further acknowledges that the petitioner pursued both direct appeal and PCR appeal; thus, he has exhausted his state court remedies (see doc. 11 at 2-16, 18-19). The respondent, however, argues that some of the petitioner's grounds for habeas relief are procedurally barred, an argument discussed in greater detail below.
Federal Habeas Review
Because the petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 410 (2000). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision,” and “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 101-02 (2011) (citations omitted). Moreover, state court factual determinations are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Procedural Bar
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner seeks habeas corpus relief on an issue after he failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion. If a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the Supreme Court has explained:
[State procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984).
“[A] federal court ordinarily may not consider claims that a petitioner failed to raise at the time and in the manner required under state law unless ‘the prisoner demonstrates cause for the default and prejudice from the asserted error.'” Teleguz v. Pearson, 689 F.3d 322, 327 (4th Cir. 2012) (quoting House v. Bell, 547 U.S. 518, 536 (2006)). To show cause, a petitioner must “show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule,” Murray v. Carrier, 477 U.S. 478, 488 (1986), or that “the factual or legal basis for the claim was not reasonably available to the claimant at the time of the state proceeding.” Roach v. Angelone, 176 F.3d 210, 222 (4th Cir. 1999). “Alternatively, Petitioner may prove that failure to consider the claims will result in a fundamental miscarriage of justice.” McCarver v. Lee, 221 F.3d 583, 588 (4th Cir. 2000) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). A fundamental miscarriage of justice equates to the conviction of someone who is actually innocent. However, “actual innocence” requires “factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).
Ground One
In Ground One, the petitioner argues the trial court unreasonably applied federal law in admitting the petitioner's statements, which he claims were made without a knowing, intelligent, and voluntary waiver of his Miranda rights. This appears to be the same claim he raised in his direct appeal - “[w]hether the trial court erred by failing to suppress the statements attributed to appellant” (app. 849).
Miranda v. Arizona, 384 U.S. 436 (1966).
The respondent asserts that this claim is procedurally barred here, because it was not properly preserved at trial for appellate review (doc. 17 at 2). Prior to trial, trial counsel challenged the admissibility of several statements the petitioner made to police (app. 7-114). The trial court found the petitioner's statements were all made voluntarily, knowingly, and intelligently (app. 114-16). Later, when the State attempted to introduce the petitioner's statements, trial counsel did not object (app. 477 (“Without objection.”); 487 (“Your Honor, without objection. We've already made these objections earlier.”)). In the direct appeal, the South Carolina Court of Appeals found the petitioner had not properly preserved his claim that the statements were improperly admitted, because he only raised the issue in the motion in limine; he did not maintain his objection during trial when the statements were actually admitted to the jury. As explained by the Court of Appeals,
[W]e find Hillerby failed to preserve for appellate review the issue of whether the trial court erred in admitting the statements he gave on September 17 and 18, 2008. A party who consents to the admission of evidence he challenged prior to trial waives
“any direct challenge to the admission of the evidence.” State v. DiCapua, 383 S.C. 394, 399, 680 S.E.2d 292, 294 (2009). Here, Hillerby affirmatively stated he did not object to the admission of the statements. By doing so, he waived his right to challenge the admission of the statements on appeal.(App. 936).
The undersigned agrees with the respondent that this ground is procedurally barred. As the Supreme Court made clear in Coleman,
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice . . . or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.722 U.S. at 750. In the petitioner's case, the state court relied upon an independent and adequate state procedural rule in refusing to address the claim. See Johnson v. Mississippi, 486 U.S. 578, 587 (1998) (indicating a state procedural rule is “adequate” if it is firmly established and regularly or consistently applied by the state court); Ake v. Oklahoma, 470 U.S. 68, 75 (1985) (a state procedural rule is “independent” if it does not depend on a federal constitutional ruling). Here, the Court of Appeals found the petitioner had waived his prior objection to the admission of his statements by consenting to the admission of those statements during trial. That state rule of issue preservation is both independent and adequate as it is not dependent on any federal law and is consistently applied in state court. See State v. DiCapua, 680 S.E.2d 292, 294 (2009) (“By consenting to the admission of the . . . evidence, Dicapua waived any direct challenge to the admission of the evidence.”). Thus, the petitioner's Ground One is procedurally barred.
As discussed above, the petitioner argued in his direct appeal that his statements were improperly admitted, and after the Court of Appeals found that issue procedurally defaulted, the petitioner argued in his PCR action that trial counsel was ineffective for failing to properly preserve the issue. However, in his federal habeas corpus petition before this court, the petitioner has raised only the direct appeal issue. The petitioner argues the ineffective assistance of counsel claim in his response in opposition to the motion for summary judgment, but he has not moved to amend his petition to include that ground, and a response is not the proper way to do so. It is well-settled in this district that new matters cannot be raised in a response to a motion for summary judgment. See White v. Roche Biomedical Labs., Inc., 807 F.Supp. 1212, 1216 (D.S.C. 1992) (noting that “a party is generally not permitted to raise a new claim in response to a motion for summary judgment”) and Neumon v. Cartledge, C. A. No. 8:14-cv-2256-RMG, 2015 WL 4607732, at *9 n. 9 (D.S.C. July 31,2015) (applying Roche in a Section 2254 habeas corpus action).
Furthermore, even if the petitioner had raised the ineffective assistance of counsel in failing to preserve this issue as a ground in his federal petition, the ground would be procedurally barred in this habeas action. The PCR court dismissed the ineffective assistance of counsel claim, finding the petitioner had failed to meet his burden of proving deficiency or prejudice (see app. 1168). The petitioner filed a motion to amend, arguing the PCR court's ruling did “not sufficiently rule” on his claim that trial counsel was ineffective for failing to properly preserve the objection to the admission of the petitioner's statements (app. 1173). The PCR court denied the motion, finding the order of dismissal adequately addressed that claim and others (app. 1182). At the hearing on the Rule 59(e) motion, the PCR judge stated, “I think it's preserved. If not, this particular hearing protects you” (app. 1182). Indeed, PCR counsel's Rule 59(e) motion sufficiently preserved the ineffective assistance of counsel claim. Jones v. Williams, C. A. No. 1:18-2600-HMH-SVH, 2019 WL 2265113, at *4 (“If the petitioner files a Rule 59(e) motion and requests that the PCR court make specific findings of fact and conclusions of law on an issue not addressed by the PCR court, then that unaddressed issue is preserved for appellate review.” (citing Marlarv. State, 653 S.E.2d 266, 267 (S.C. 2007))). Nevertheless, PCR counsel did not pursue that particular claim in the PCR appeal, and thus it is procedurally barred. See id. (noting that despite a claim being preserved for state appellate review through a Rule 59(e) motion, the same was not preserved for federal habeas review because it was not raised in the PCR appeal); see also Coleman, 501 U.S. 731-32 (stating that if an issue is not properly raised to the state's highest court and would be procedurally impossible to raise now, then it is procedurally barred from federal habeas review).
In addition, Martinez v. Ryan, 566 U.S. 1 (2012), would not apply to excuse the default of the ineffective assistance of counsel ground, had it been brought in the federal petition. Mahdi v. Stirling, 20 F.4th 846, 898 (4th Cir. 2021) (“'[ineffective assistance of appellate postconviction counsel . . . do[es] not constitute cause for his failure to exhaust under the limited exception in Martinez.” (quoting Johnson v. Warden of Broad River Corr. Inst., No. 12-7270, 2013 WL 856731, at *1 (4th Cir. Mar. 8, 2013))).
For the above reasons, the petitioner's Ground One is procedurally defaulted, and the petitioner has failed to demonstrate either cause and prejudice for the default or that some fundamental miscarriage of justice would result if his Ground One is not considered. As such, the undersigned recommends that the respondent's motion for summary judgment be granted as to Ground One.
Ground Two
In Ground Two, the petitioner asserts that “[t]he trial court violated federal law, and applied federal law unreasonably, in admitting prior bad acts and irrelevant prejudicial testimony against him at trial” (doc. 1 at 7). It appears that the petitioner's Ground Two includes the following issues that were raised as part of his direct appeal:
Notably, the petitioner is not proceeding pro se. Thus, the court is not called to liberally construe his petition. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (noting that pro se pleadings should be liberally construed). The thin assertions offered in the petition give little direction to this court as to the parameters of the claims the petitioner is attempting to raise here. Nevertheless, the undersigned has attempted to address these claims.
II. Whether the trial court erred by admitting the testimony of two witnesses over counsel's objection that the testimony was inadmissible prior bad act testimony pursuant to Rule 404(B), SCRE, and State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923).
III. Whether the trial court erred by admitting the testimony of Ms. Georgoulis over counsel's objections that the testimony was not relevant.(App. 849). The respondent offers alternative arguments as to the petitioner's Ground Two. First, the respondent argues that the ground is procedurally barred or not cognizable. Second, the respondent argues that the Court of Appeals' ruling was reasonable. The undersigned parses through the claim below.
Prior Bad Acts
In his direct appeal, the petitioner argued that the trial court erred in admitting testimony of two teenage witnesses, Brandon and Courtney, who observed the petitioner's behavior toward the victim the day before the victim was found deceased in his crib. The petitioner argued that the trial court did not follow the proper procedure in admitting the testimony (app. 867-71). The petitioner further argued the testimony should not have been admitted as it was evidence of prior bad acts, which are generally prohibited by state evidence rules and case law (app. 865-71).
As to the procedural argument, the Court of Appeals found that issue was not raised to the trial court and was, therefore, not properly preserved for appellate review (app. 936). Because the Court of Appeals' application of a procedural bar is an independent and adequate state law ground, this court is barred from considering the petitioner's procedural argument here. See Burket v. Angelone, 208 F.3d 172, 189 (4th Cir. 2000) (“[A]bsent cause and actual prejudice or a miscarriage of justice, a federal habeas court may not review constitutional claims when a state court has declined to consider their merits on the basis of an adequate and independent state procedural rule.”); see also Sims v. Lewis, C. A. No. 6:17-3344-JFA-KFM, 2018 WL 7825803, at *8 (D.S.C. Sept. 17, 2018) (“It is well settled in South Carolina that issues not raised and ruled upon in the trial court will not be considered on appeal. Moreover, it is not enough that the argument presented stems from the same factual scenario; rather, the legal argument must be the same as the argument presented below.” (internal citations and quotations omitted)).
Turning the remainder of the petitioner's argument in his direct appeal, the Court of Appeals affirmed the admission of the teenage witnesses' statements, finding they were admissible under state law. The Court of Appeals noted that “[g]enerally, ‘[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith'” (app. 937 (quoting Rule 404(b), SCRE)). But, in some instances, such evidence is admissible-for instance, to show intent (app. 937). The court further noted that the particular crime with which the petitioner was charged, homicide by child abuse, includes the element that “‘the death occurs under circumstances manifesting an extreme indifference to human life'” (app. 937 (quoting S.C. Code Ann. § 16-3-85(A)(1) (2003))). The court further stated, “The State may establish the mental state of extreme indifference using evidence of prior instances in which the accused either abused or neglected the victim” (app. 937). Applying this law to the petitioner's case, the
Court of Appeals concluded as follows:
In the case at bar, the trial court admitted Brandon's and Courtney's testimony to show Hillerby's intent toward Victim. Brandon reported overhearing Hillerby comment that nobody cared about Victim and Mother should have left him in the swimming pool with water over his head. According to Courtney, Hillerby and Mother ignored Victim as he repeatedly jumped into the deep end of the swimming pool without his flotation devices. Courtney also heard Hillerby call Victim a “pussy” and tell him to “cry because nobody wanted him.” We find this testimony demonstrated Hillerby neglected and verbally abused Victim hours before the child was left in Hillerby's care and less than a day before Victim was discovered dead. Moreover, we find the abusive and neglectful acts the witnesses described logically related to homicide by child abuse. Therefore, the trial court did not err in admitting Brandon's and Courtney's testimony.(App. 937-38).
From the court's review of the state court opinion, the rejection of this claim appears to be entirely based on the application of the South Carolina Rules of Evidence and applicable case law. There is no federal-based claim, and, therefore, this portion of the petitioner's Ground Two is not cognizable, as habeas relief is only available when a petitioner demonstrates “he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Issues of state law are generally not cognizable in habeas review. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”); Spencer v. Murray, 5 F.3d 758, 763 (4th Cir. 1993) (“It has been settled in this circuit for years that a claim about the admissibility of evidence under state law rarely is a claim upon which federal habeas corpuse relief can be granted.”). Evidentiary rulings will not be considered in federal habeas “‘unless [the] erroneous evidentiary rulings were so extreme as to result in a denial of a constitutionally fair proceeding.'” Barbe v. McBride, 521 F.3d 443, 452 (4th Cir. 2008) (quoting Burket v. Angelone, 208 F.3d 172, 186 (4th Cir. 2000)). No such showing has been made here. The petitioner only vaguely offers in his petition that “[t]he South Carolina Court of Appeals likewise violated federal law, and applied federal law unreasonably in affirming on this issue” (doc. 1 at 7). The petition does not identify what federal law was violated or how so. To the extent the petitioner intends to rely on his direct appeal brief to articulate a claim, that argument was also largely reliant on state law. Moreover, since the direct appeal brief was filed prior to the Court of Appeals' decision, it could not have identified any failings by that court.
As set forth above, the petitioner's argument that the trial court erred in admitting evidence of the petitioner's prior bad acts is partially procedurally barred and is otherwise not cognizable in this action.
Prejudicial Testimony
In his direct appeal, the petitioner also argued that the trial court erred in admitting some of the testimony of Melissa Georgoulis, the mother of the petitioner's son. The crux of the petitioner's argument on appeal was that some of Ms. Georgoulis's testimony was not relevant, but, even to the extent it was relevant, it was more prejudicial than probative (app. 874-77).
The Court of Appeals found Ms. Georgoulis's testimony was relevant, explaining as follows:
Hillerby objected to questions concerning (1) whether Georgoulis saw Hillerby the night before Victim's death, (2) what Hillerby's mood was when he left her house the next morning, and (3) who was staying at Georgoulis's home during the trial. We find the answers to these questions were relevant to Hillerby's credibility and mental state and to Georgoulis's bias.
In response to the first two questions, Georgoulis testified Hillerby stayed with her the night before Victim's death, attempted to reunite with her, and left her home upset the next morning. Her testimony established Hillerby was untruthful when he told Mother he had stayed the night elsewhere, which diminished his credibility. Significantly, Georgoulis's testimony demonstrated Hillerby's affections had already shifted away from Mother and back to Georgoulis, the mother of his child, before he agreed to babysit Victim and Sister. Thus, they were relevant both to credibility and to a determination of Hillerby's mental state in the hours preceding Victim's death.
Hillerby does not claim he suffered prejudice from Georgoulis's admission, in response to the third question, that his mother was staying with Georgoulis during the trial. This evidence had no bearing on the events leading up to Victim's death. However, it revealed the witness's bias in favor of Hillerby and, therefore, her motive not to truthfully answer the State's questions. Accordingly, Georgoulis's answer to this question was relevant to her credibility.(App. 938-39).
As with the evidence concerning the petitioner's prior bad acts, the Court of Appeals' finding that the admission of Ms. Georgoulis's testimony was not erroneous is based on the South Carolina Rules of Evidence and related case law. Again, there is no apparent federal aspect of this issue, and the petitioner's conclusory arguments are not helpful in identifying one. Based on the same law set forth above, this claim is not cognizable in the instant action.
For all of the above reasons, the undersigned finds that the petitioner's Ground Two is either procedurally barred or not cognizable in federal habeas. Thus, it is recommended that the respondent's motion for summary judgment be granted as to Ground Two.
Ground Three
In the petitioner's final ground for relief, he asserts that his trial counsel was ineffective for failing to consult an independent forensic pathologist. The respondent contends that, although this issue is properly preserved and cognizable in this action, habeas corpus relief is not warranted because the petitioner has not demonstrated unreasonable findings or application of federal law by the state court.
At the petitioner's trial, the forensic pathologist who performed the victim's autopsy, Dr. Nicholas Batalis, testified that the victim died of “blunt head trauma” (app. 523). Dr. Batalis determined the manner of death was homicide (app. 524). According to Dr. Batalis, the time of death was anywhere from two to twelve hours before the victim was found in his crib (app. 523). Dr. Batalis testified that the victim's injuries were entirely focused on his head and neck region and included twelve different bruises to the face, two bruises to the scalp, and nine points of impact under the scalp (app. 524). The head trauma caused bleeding in the victim's brain, which eventually caused the victim to die, and Dr. Batalis testified that the plaintiff would have immediately started showing symptoms like sleepiness or grogginess (app. 541-44). On cross-examination, trial counsel asked Dr. Batalis about several red discolorations on different parts of the victim's body (arms, legs, buttocks, torso) (app. 552-55). Dr. Batalis testified that he initially believed those marks could have been bruises, but, upon closer inspection to some of them, he did not find that they were consistent with bruises (app. 552-55). He theorized that the marks could have been an eczema flare-up or could have resulted from the storage of the victim's body prior to the autopsy (app. 556-58).
During the PCR evidentiary hearing, the petitioner called Dr. Michael Myer Baden, an expert in forensic pathology (app. 971-1010). Dr. Baden testified that he had reviewed the victim's autopsy and Dr. Batalis's trial testimony, and he generally agreed with the conclusion that the victim had died from blunt force impact injuries, largely those to the head (app. 976). However, Dr. Baden testified that the injuries resulted from the victim being poked by an object (app. 977). Dr. Baden indicated that he had seen similar injuries and deaths in sibling-rivalry cases “where one older child can beat up on the new baby that's getting so much attention and uses a toy or a stick to injure the baby” (app. 978). Dr. Baden disagreed with some of Dr. Batalis's testimony, in particular, that the small red marks were not bruises (app. 988-89). Dr. Baden testified the characteristic blood that is found in tissue under a bruise is sometimes only visible with a microscope (app. 989). Dr. Baden opined that the marks all over the body were bruises and were consistent with the marks on the victim's head that were the cause of death (app. 990-91). Dr. Baden theorized that a paint roller, which was present in one of the crime scene photographs he viewed, could have been the cause of the bruises on the victim's body (app. 991). Dr. Baden further opined that the victim had likely died twelve hours or more before his body was found (app. 992-95). Dr. Baden testified that it was more likely that the victim's injuries had been caused by a child than by an adult (app. 998).
Trial counsel also testified during the PCR evidentiary hearing. He indicated that, as part of his trial preparation, he consulted with two experts-Dr. Ronald Orlowski, a DNA expert, and Dr. Betsy Gibbs, a pediatrician who ran a clinic for children who had been sexually and physically abused (app. 1054-56). T rial counsel indicated that Dr. Gibbs reviewed the autopsy report and disagreed with some of Dr. Batalis's conclusions; for example, she disagreed with Dr. Batalis's conclusion that the red marks on the victim's body were not bruises (app. 1056). However, ultimately, trial counsel did not call Dr. Gibbs as a witness because she believed the petitioner had killed the victim based on her review of the materials (app. 1056). According to trial counsel, he initially believed he had “a winnable case[,]” (app. 1059), but once he received a taped phone conversation between the petitioner and the victim's mother where the petitioner admitted to hitting the victim, trial counsel “said, we're done, we're finished. . . . I mean, it's a confession” (app. 1063). Trial counsel tried to convince the petitioner to plead guilty at that point but to no avail (app. 1064).
The PCR court found trial counsel was not deficient based primarily on the conclusion that Dr. Baden was not credible for a host of reasons (app. 1165-66). However, the PCR court additionally found that the petitioner had not met his burden of proof that he was prejudiced by counsel's alleged failures (app. 1166-68).
The South Carolina Court of Appeals noted its concern with the PCR court's deficiency analysis but “nevertheless [saw] sufficient evidence in the record to affirm the PCR court's finding that Petitioner failed to demonstrate prejudice” (doc. 11-18 at 9). The Court of Appeals offered the following thorough reasoning as to why the petitioner was not prejudiced:
The PCR court found Petitioner failed to demonstrate prejudice because he admitted to smacking Victim in a recorded conversation with Mother and made a similar statement to law enforcement. We agree with the PCR court that Petitioner's admissions, in conjunction with the evidence presented at trial, constitute overwhelming evidence of guilt. See Geter [v. State, 305 S.C. 365, 367, 409 S.E.2d 344, 346 (1991)] (stating a reasonable probability of a different result does not exist when there is overwhelming evidence of guilt).
As we denoted earlier, Petitioner gave a series of statements to law enforcement. He first denied any part in injuring Victim. In his second statement, he claimed he may have done so inadvertently. In his third statement, however, Petitioner admitted striking Victim with an open hand. He admitted to multiple strikes, all over Victim's head, and said the final blow knocked Victim to the ground and caused Victim's head to hit the floor. We acknowledge Petitioner recanted this statement, but that was after he made a similar admission to Mother in a phone call from jail.
The phone call from jail was particularly incriminating. Victim's mother directly asked Petitioner “what happened” and Petitioner immediately responded that he had “smacked” Victim. On the same call, Petitioner told Mother his third statement to law enforcement-the statement admitting intentional strikes all over Victim's head-was “true.” Petitioner told Victim's mother he had been assaulted by other inmates after they learned of Petitioner's confession via the news.
As we noted at the beginning, trial counsel testified at the PCR hearing that he believed the recording was the critical piece of information that led to Petitioner's conviction. Counsel explained he originally thought the case was winnable because nobody could offer a solid explanation of how the child died and who could have done it. After he heard the phone call from jail, however, counsel assessed “we're done, we're finished. We got no-I mean, it's a confession.”
It is likely the atmosphere at trial would have been different if a forensic pathologist testified in the way Dr. Baden testified at
the PCR hearing. But saying the atmosphere would be different is not the same as saying there would have been a different result. Petitioner's own statement was that he beat Victim, and thereafter Victim began showing the very symptoms Dr. Batalis said would follow from blunt head trauma. Additionally, there was no evidence presented at trial that Victim's sister was ever hostile to Victim. There was also quite a lot of other incriminating evidence including the testimony about Petitioner's neglectful and rough supervision at the pool and other witnesses describing Petitioner's behavior as suspicious after Victim's body was discovered.
We therefore agree with the PCR court and find it is not reasonably likely that the result of the proceeding would have been different even if the pathology evidence from the PCR hearing had been part of the original case.(Doc. 11-18 at 9-10).
As an initial matter, the petitioner now argues that the PCR court violated and unreasonably applied federal law in denying PCR, but that argument is of little consequence since the South Carolina Court of Appeals issued its own opinion on the merits of this issue. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (“[The habeas corpus inquiry] is a straightforward inquiry when the last state court to decide a prisoner's federal claim explains its decision on the merits in a reasoned opinion. In that case, a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable.”). The petitioner's arguments that the PCR court unreasonably applied federal law do not warrant habeas relief.
Turning to the petitioner's argument regarding the alleged error by the Court of Appeals, the court again finds the petitioner's argument to be very summary in nature. He does not identify how or what federal cases the Court of Appeals unreasonably applied. The petitioner's petition for rehearing cites and relies upon the standards set in Strickland v. Washington, 466 U.S. 668 (1984), and Hill v. Lockhart, 474 U.S. 52 (1985) (doc. 11-19 at 9). However, the petitioner's argument there essentially amounts to a disagreement with the state appellate court as to whether there was a reasonable probability that the result of the proceeding would have been different (doc. 11-19 at 9-10). The Court of Appeals determined that there was not a reasonable probability that the result of the petitioner's trial would have been different had trial counsel called a forensic pathologist as a witness in light of the overwhelming evidence of the petitioner's guilt that was otherwise presented at trial. The petitioner has failed to show that the state court's assessment unreasonably applied law as determined by the Supreme Court. See Strickland, 466 U.S. at 696 (“[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.”); Shields v. Sherman, C. A. No. CV 1508139 FMO (AFM), 2016 WL 6091105, at *9 (C.D. Cal. Sept. 7, 2016) (“An attorney's deficient performance has no bearing on the outcome when there is otherwise strong or overwhelming evidence of guilt.”).
As explained above, the petitioner has failed to meet his burden under § 2254. Thus, the undersigned recommends that summary judgment be granted as to the petitioner's Ground Three.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, it is recommended that the respondent's motion for summary judgment (doc. 12) be granted.
The attention of the parties is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 250 East North Street, Suite 2300 Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).