Opinion
C/A 8:22-cv-04636-HMH-JDA
10-16-2023
Sylvester K. King, Petitioner, v. Warden John Palmer, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin, United States Magistrate Judge
This matter is before the Court on Respondent's motion for summary judgment. [Doc. 19.] Petitioner is a state prisoner seeking relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.
Proceeding pro se, Petitioner filed this action on December 19, 2022. [Doc. 1.] Respondent filed a return and memorandum and motion for summary judgment on May 4, 2023. [Docs. 18; 19.] The next day, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 20.] Petitioner's response in opposition was entered on the docket on May 30, 2023. [Doc. 22.] The motion is now ripe for review.
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, this action was filed on December 19, 2022. [Doc. 1-2 at 1 (envelope marked as received by the prison mailroom on December 19, 2022).]
BACKGROUND
Petitioner is confined in the South Carolina Department of Corrections (“SCDC”) pursuant to orders of commitment of the Greenville County Clerk of Court. [Doc. 1 at 1.] On August 19, 2014, a Greenville County grand jury returned a true-billed indictment against Petitioner for murder and possession of a weapon during the commission of a violent crime. [App. 579-80.2] Petitioner, represented by Alex Kornfeld, was tried by a jury from November 30 through December 2, 2015. [App. 1-424.] The jury convicted Petitioner as charged. [App. 418.] Petitioner was sentenced to life imprisonment for murder and five years' imprisonment for possession of a weapon during the commission of a violent crime. [App. 423.]
Direct Appeal
Petitioner, represented by Robert M. Dudek of the South Carolina Commission on Indigent Defense, appealed to the South Carolina Court of Appeals. [Doc. 18-4 at 1.] Counsel's brief, dated August 1, 2017, raised the following issues:
1.
Whether the court erred by allowing Sheriff's Deputy Suber to testify [that] the decedent's son, who was a prime suspect in the murder, told him that he believed his mother's boyfriend ([Petitioner]) was the murderer because he kept saying they were “hiding from him,” since this testimony was not admissible as an excited utterance, and it was inadmissible prejudicial hearsay
2.
Whether the court erred by allowing Greenville's Sheriff's Investigator Peeples to testify that she heard someone at [Petitioner's] place of business allegedly told someone else that [Petitioner] had . . . “called into work,” and
told someone at work that “he was a victim of a home invasion where he was injured,” since this testimony was inadmissible prejudicial hearsay?[Doc. 18-4 at 4, 17.] The Court of Appeals affirmed on May 9, 2018, concluding that there was no error in the first claimed issue and that the second issue was procedurally barred from review on the merits. [App. 425-26.] Petitioner did not file a petition for rehearing and did not seek further review from the Supreme Court of South Carolina. The Court of Appeals issued the remittitur on May 25, 2018. [Doc. 18-6.]
The Appendix can be found at Docket Entry Numbers 18-1 through 18-3.
Post-Conviction Relief Proceedings
On May 24, 2018, a day before the remittitur was issued, Petitioner filed an application for post-conviction relief (“PCR”). [App. 428-35.] He presented the following allegations:
10(A) Ineffective assistance of counsel for failure to discharge his duty of diligence to investigate the evidence, facts, and witness(es) in the case.
(B) Ineffective assistance of counsel for failure to provide a proper defense for p[h]ysical evidence in the case.
(C) Ineffective assistance of counsel for his abando[n]ment of his client during trial.
11(A)(1) Counsel failed to properly and fully investigate the case.
(2) Counsel failed to properly and fully prepa[re] Petitioner for testimony in the case.
(3) Counsel failed to adequately investigate the alleged crime scene or the allegations so as to be prepa[red] to present testimony through direct and cross-examination of relevant evidence related to the matter.
(4) Counsel failed to interview or call as a witness a number of people who would have relevant information in this matter.
(5) Counsel failed to request a preliminary hearing so Petitioner could more adequately be informed about [the] case.
(6) Counsel failed to spend adequate time with Petitioner reviewing discovery with him.
(7) Counsel failed to challenge the testimony of the State's witness(es) and failed to adequately object and preserve objections to portions of the witness(es)['] testimony, and failed to effectively cross-examine the witness(es) on their testimony.
(8) Counsel failed to move for a pretrial motion for a Directed Verdict.
(9) Counsel failed to move for a Directed Verdict at the end of the State's case, or at the end of the entire case.
(10) Counsel failed to move for a pretrial motion to suppress the evidence from the case.
(11) Counsel failed to challenge or move to quash the indictment before the jury is sworn, that indictment is not sufficient.
(12) Counsel failed to provide a valid defense for trial.
(13) Counsel failed to request a [c]ompetency hearing to evaluate the Petitioner, and see if he was incompetent at the time of his trial.
(14) Counsel failed to move for a fast and Speedy trial. Petitioner lost certain witness(es) that could [have] testified on his behalf, pursuant to the 21 month delay for trial.
(15) Counsel failed to object to the State's hearsay, and circumstantial evidence being admitted at trial.[App. 431-32.]
On September 4, 2018, the State made its return. [App. 438-70.] Susannah Ross represented Petitioner in the PCR action. [App. 474.] On October 23, 2018, Ross filed a supplement to the application and asserted trial counsel was ineffective for:
(1) failing to make a hearsay objection to Investigator Shawnee Peoples statement, “I was advised that that day he called into work and he told his job that he was the victim of a home invasion where he was injured”;
(2) failing to request jury voir dire as to whether any of the jurors had been victims of a violent attack;
(3) failing to object to witness Raquan Lewers['] testimony that he believed his mom was trying to get away from [Petitioner];
(4) failing to point out that at the time of the stabbing [Petitioner] and the victim had been separated for four years, not the year or two witness Raquan Lewers said;
(5) failing to fully investigate and clarify for the jury whose phones were found at the scene and used to call 911, DNA evidence, and shoe print evidence;
(6) advising [Petitioner] not to testify; and
(7) failing to secure or advise [Petitioner] of a plea offer.[App. 473-74 (record citations omitted).] Petitioner “also allege[d] a Due Process violation based on his failure to get a fair trial by an impartial jury.” [App. 474.]
An evidentiary hearing was held on October 24, 2018. [App. 476-537.] At the beginning of the hearing, PCR counsel added an allegation that trial counsel was ineffective for not “object[ing] to a jury instruction that asked the jury to seek a verdict that speaks the truth.” [App. 480.] The PCR court heard testimony from Petitioner and his trial counsel. [App. 477.] Additionally, Petitioner offered one exhibit, a DNA report from Greenville County. [App. 478; Doc. 18-12.] The PCR court denied and dismissed Petitioner's application with prejudice on November 5, 2018 [App. 538-74], and on December 11, 2018, the court denied Petitioner's motion to alter or amend the judgment [App. 575-78].
On Petitioner's behalf, Dudek filed a petition for writ of certiorari in the Supreme Court of South Carolina, dated August 9, 2019. [Doc. 18-7.] The petition asserted the following as the sole issue presented:
Whether the PCR court erred by ruling defense counsel had no duty to object to the improper jury charge that the jury abides by its oath when it returns a verdict that “speaks the truth,” since this Court has repeatedly, including in State v. Aleksey, 343 S.C. 20, 26-27, 538 S.E.2d 248, 251 (2000), warned trial court[s] to avoid “seeking the truth” language because it can be interpreted as lessening the beyond a reasonable doubt burden of proof, a Due [P]rocess violation, and the PCR court's conclusion that defense counsel had no duty to object to an invalid instruction was an untenable error of law?[Id. at 3.] The State filed a return to the petition on November 22, 2019. [Doc. 18-8.] The appeal was transferred to the South Carolina Court of Appeals, which filed an order on November 2, 2021, denying the petition. [Docs. 18-9; 18-10.] The remittitur issued on November 22, 2021. [Doc. 18-11.]
Respondent does not challenge the timeliness of the Petition. [Doc. 18 at 17-18 n.4.]
Petition for Writ of Habeas Corpus
Petitioner filed this Petition for writ of habeas corpus on December 19, 2022. [Doc. 1.] Petitioner raises the grounds, summarized below, in his Petition pursuant to 28 U.S.C. § 2254:
GROUND ONE: Petitioner's trial counsel was ineffective for knowingly and intentionally striking two jurors because they were African American, resulting in the selection of an all-white jury. Additionally, the trial court violated Petitioner's Fifth, Sixth, and Fourteenth Amendment rights by allowing the strikes without holding a Batson hearing and allowing the selection of an allwhite jury.
GROUND TWO: Petitioner's Fifth and Fourteenth Amendment rights were violated because the prosecution failed to prove each element of its case beyond a reasonable doubt.
GROUND THREE: Petitioner's rights under the Fifth and Fourteenth Amendments were violated when the prosecutor shifted the burden to him to prove his innocence by stating during closing argument, “On behalf of the people of Greenville County, strike him down. He's guilty.”
GROUND FOUR: Petitioner's Fifth and Fourteenth Amendment rights were violated when the prosecution improperly speculated that the decedent was killed within seconds of receiving a stab wound when, in actuality, there was no evidence to support that assertion; when the prosecution opined, without a proper basis, on how long it took Petitioner to leave the scene; and when the prosecution improperly told the jury Petitioner did not testify because he knew he was guilty.
GROUND FIVE: Petitioner's Sixth and Fourteenth Amendment rights were violated because he was deprived of his rights to confront the witnesses against him when the State presented DNA evidence but did not call as a witness the technician who performed the testing.
GROUND SIX: Petitioner's Due Process and Equal Protection rights were violated during his trial when the prosecutor allowed the State's DNA expert to testify concerning DNA evidence but the jury was never presented with any DNA records that the State used against Petitioner.
GROUND SEVEN: Petitioner's rights under the Sixth and Fourteenth Amendments were violated when, during his PCR action, Petitioner's PCR counsel intentionally failed to raise Grounds One through Six.[Doc. 1-1 at 3-6, 11, 14-17, 69-72, 79-81, 90-91, 102-04, 123-28.]
APPLICABLE LAW
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure 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). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under 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. When 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 court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (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. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant'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 granting 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. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
Habeas Corpus
Generally
Because Petitioner filed the 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, 411 (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). 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
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 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.
Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (I) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254. The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. Id. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must fairly present his claim to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds for relief be stated in the direct appeal or PCR application. S.C. App. Ct. R. 203; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). Further, strict time deadlines govern direct appeal and the filing of a PCR application in the South Carolina courts. For direct appeal, a notice of appeal must be filed and served on all respondents within ten days after the sentence is imposed or after receiving written notice of entry of the order or judgment. S.C. App. Ct. R. 203(b)(2), (d)(1)(B). A PCR application 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.
If any avenue of state relief is still available, the petitioner must proceed through the state courts before requesting a writ of habeas corpus in the federal courts. Richardson v. Turner, 716 F.2d 1059, 1062 (4th Cir. 1983); Patterson v. Leeke, 556 F.2d 1168 (4th Cir. 1977). Therefore, in a federal petition for habeas relief, a petitioner may present only those issues that were presented to the Supreme Court of South Carolina through direct appeal or through an appeal from the denial of a PCR application, regardless of whether the Supreme Court actually reached the merits of the claim.
Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner seeks habeas corpus relief based on an issue he failed to raise at the appropriate time in state court, removing any further means of bringing that issue before the state courts. In such a situation, the petitioner has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. See Smith v. Murray, 477 U.S. 527, 533 (1986). The United States Supreme Court has stated that the procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See id. Bypass can occur at any level of the state proceedings if a state has procedural rules that bar its courts from considering claims not raised in a timely fashion. Id.
The Supreme Court of South Carolina will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. See S.C. Code Ann. § 1727-90; Aice v. State, 409 S.E.2d 392, 394 (S.C. 1991). Further, if a prisoner has failed to file a direct appeal or a PCR application and the deadlines for filing have passed, he is barred from proceeding in state court. S.C. App. Ct. R. 203(d)(3), 243. 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. See Reed v. Ross, 468 U.S. 1, 11 (1984); see also Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995). As the United States Supreme Court 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, 468 U.S. at 10-11.
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, 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). Further, if the petitioner does not raise cause and prejudice, the court need not consider the defaulted claim. See Kornahrens, 66 F.3d at 1363.
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. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Absent a showing of cause and actual prejudice, a federal court is barred from considering the claim. Wainwright, 433 U.S. at 87. In such an instance, the exhaustion requirement is technically met, and the rules of procedural bar apply. Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915.
Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this Court may consider claims that have not been presented to the Supreme Court of South Carolina in limited circumstances-where 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 where a “fundamental miscarriage of justice” has occurred, Carrier, 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 hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim, where the novelty of the constitutional claim is such that its legal basis is not reasonably available to the petitioner's counsel. Id. at 487-89; Reed, 468 U.S. at 16. Absent a showing of “cause,” the court is not required to consider “actual prejudice.” Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice to excuse a default. Carrier, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error. Engle v. Isaac, 456 U.S. 107, 134-35 (1982).
As an alternative to demonstrating cause for failing to raise the claim, the petitioner may show a miscarriage of justice. To demonstrate a miscarriage of justice, the petitioner must show he is actually innocent. See Carrier, 477 U.S. at 496 (holding a fundamental miscarriage of justice occurs only in extraordinary cases, “where a constitutional violation has probably resulted in the conviction of someone who is actually innocent”). Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 623 (1998). To demonstrate this actual innocence standard, the petitioner's case must be truly extraordinary. Carrier, 477 U.S. at 496.
DISCUSSION
Procedurally Defaulted Grounds
Respondent argues that Grounds One through Six are procedurally defaulted. [Doc. 18 at 21-27.] The Court addresses these claims seriatim.
Ground One
In Ground One, Petitioner alleges that “had trial counsel . . . protected Petitioner” during the process of jury selection, there would have been “a reasonable probability with some black jurors” that “a verdict of no[t] guilty may have been reached.” [Doc. 1-1 at 5-6.] As the Court construes the allegation, at least part of Petitioner's complaint is against his trial counsel for intentionally striking two jurors because they were African American. [See Doc. 1-1 at 4-5; see also Doc. 22 at 3 (Petitioner's argument that “[t]he Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges”)] He may also contend that because there were no African Americans on the jury, Petitioner “was denied a jury of his peers” or that trial counsel was ineffective for failing to object that he was denied a jury of his peers. [Doc. 22 at 3; see Doc. 1-1 at 5.]
Petitioner's actual claim, other than a general “ineffective assistance” of counsel, is unclear. In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme “Court ruled that a State may not discriminate on the basis of race when exercising peremptory challenges against prospective jurors in a criminal trial.” Flowers v. Mississippi, 139 S.Ct. 2228, 2234 (2019). Similarly, “the Counstitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges.” Georgia v. McCollum, 505 U.S. 42, 59 (1992). But discrimination against the juror is the ill the Constitution seeks to prevent, and that is not articulated in the complaint here.
Because none of these claims were raised or ruled on in state court, either at trial, on direct appeal, or in Petitioner's PCR action, they are defaulted. Petitioner argues that the defaults are excused because his PCR counsel was ineffective in failing to raise trial counsel's ineffectiveness regarding these issues. [Doc. 1-1 at 6, 11, 16.] The Court disagrees.
The Supreme Court, in Martinez v. Ryan, 566 U.S. 1 (2012), created a narrow exception allowing the ineffective assistance of counsel at initial-review collateral proceedings to serve as cause for a procedurally defaulted ineffective-assistance-of-trial-counsel claim when:
(1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires
that an “ineffective assistance of trial counsel [claim] . . . be raised in an initial-review collateral proceeding.”Trevino v. Thaler, 569 U.S. 413, 423 (2013) (emphasis omitted). “Substantial” denotes the claim has “some merit.” Martinez, 566 US. at 14. Additionally, review of the claim in this context must be based only on the state court record. Shinn v. Ramirez, 142 S.Ct. 1718, 1734 (2022).
The Martinez exception has no application here to the extent that Ground One raises a direct claim that Petitioner was denied a jury of his peers. Rather, the Martinez exception applies only to claims asserting ineffective assistance of trial counsel. See Banks v. Workman, 692 F.3d 1133, 1148 (10th Cir. 2012) (“The Court said in no uncertain terms that ‘[t]he rule of Coleman governs in all but the limited circumstances here.' Martinez applies only to ‘a prisoner's procedural default of a claim of ineffective assistance at trial.'” (alteration and emphasis in original) (quoting Martinez, 566 U.S. at 9, 16)); see also Reilly v. Cartledge, No. 0:12-3503-SB, 2014 WL 4656511, at *8 (D.S.C. Sept. 17, 2014) (“Martinez is a limited exception that applies only to the procedural default of a claim of ineffective assistance of trial counsel.” (emphasis in original)).
To the extent that Ground One asserts that trial counsel was ineffective, Petitioner has not shown that any ineffectiveness-of-trial-counsel claim that PCR counsel could have raised concerning jury selection was substantial. To establish ineffective assistance of counsel, the PCR applicant must prove (1) counsel's performance fell below an objective standard of reasonableness, and (2) the applicant sustained prejudice as a result of counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The record does not reflect trial counsel's reasoning for striking the two African American jurors, and Petitioner has pointed to nothing in the record indicating that the decision to strike these two particular jurors amounted to constitutionally unreasonable strategy. See Strickland, 466 U.S. at 689 (requiring that courts “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance”); Bell v. Evatt, 72 F.3d 421, 429 (4th Cir. 1995) (“Standing alone, unsuccessful trial tactics neither constitute prejudice nor definitively prove ineffective assistance of counsel.”). And regarding the theory that Petitioner asserts that trial counsel was ineffective for allowing him to be denied a trial by a jury of his peers, Petitioner offers no legal support for the proposition that he was constitutionally entitled to have one or more African Americans on the jury. Although the Sixth Amendment guarantees a criminal defendant that “petit juries [will] be drawn from a source fairly representative of the community,” that does not mean that the petit jury actually selected “must mirror the community and reflect the various distinctive groups in the population.” Holland v. Illinois, 493 U.S. 474, 483 (1990) (internal quotation marks omitted). For those reasons, Petitioner has not shown that trial counsel had any basis to object to the jury composition. Accordingly, he has also not shown that a claim of ineffectiveness of trial counsel was substantial, as we would need to do to excuse his default of that claim. Trevino, 569 U.S. at 423.
The Court also notes that nothing in the record indicates that counsel struck the jurors because of their race.
Because Petitioner has not identified any other basis for excusing the default of Ground One, the Court concludes that Ground One is procedurally barred and recommends that summary judgment be granted against Petitioner as to that ground.
Ground Two
In Ground Two, Petitioner alleges that the evidence against him at trial was insufficient to support his convictions. [Doc. 1-1 at 14-19.] Although trial counsel raised this issue, the claim is defaulted because appellate counsel failed to raise it and Petitioner did not raise a claim of ineffectiveness against direct-appeal counsel in his PCR action.
Petitioner's only argument for excusing this default is that he is entitled to raise a claim of ineffective assistance of appellate counsel for the first time in his federal habeas petition in order to establish cause that could excuse the default of the direct insufficiency-of-the-evidence claim. [Doc. 22 at 4-6, 16.] Petitioner is incorrect. See Davila v. Davis, 582 U.S. 521, 529 (2017) (declining to “extend Martinez to allow a federal court to hear a substantial, but procedurally defaulted, claim of ineffective assistance of appellate counsel”).
The Court therefore recommends that summary judgment be granted against Petitioner as to Ground Two.
Grounds Three through Six
In Ground Three Petitioner asserts that he “had the right not to say anything regarding guilt” and that the prosecutor essentially shifted the burden to him to prove his innocence when the prosecutor stated during closing argument: “‘On behalf of the people of Greenville County, strike him down. He's guilty.'” [Doc. 1-1 at 70, 72.] In Ground Four, Petitioner claims that the prosecution improperly speculated that the decedent was killed within seconds of receiving a stab wound when, in actuality, there was no evidence to support that assertion; that the prosecution opined, without a proper basis, on how long it took Petitioner to leave the scene; and that the prosecution improperly told the jury Petitioner did not testify because he knew he was guilty. [Id. at 79-81.] In Ground Five, Petitioner argues that his right to confront witnesses against him was violated because the State presented DNA evidence but did not call as a witness the technician who actually performed the DNA testing. [Id. at 90-91.] In Ground Six, Petitioner claims that the prosecution violated his constitutional rights to due process and equal protection under the law by failing to offer the DNA report and having it admitted into evidence. [Id. at 102-04.]
Because none of these grounds were raised at trial, on appeal, or during the PCR action, they are all defaulted. As justification for excusing the defaults, Petitioner argues that trial or PCR counsel were ineffective for failing to raise these issues. [Doc. 22 at 8, 13-16.] However, because none of these are claims of ineffective assistance of trial counsel, the Martinez exception does not apply. See Banks, 692 F.3d at 1148.
The Court therefore recommends that summary judgment be granted against Plaintiff on Grounds Three through Six.
Ground Seven is not Cognizable
Petitioner alleges that his PCR counsel “intentionally failed” to present the grounds as asserted in the present action in his PCR case. [Doc. 1-1 at 128.] This claim is barred by 28 U.S.C. § 2254(i), which sets out that “[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.” See also Martinez, 566 U.S. at 17 (recognizing the statute bars the court from entertaining a claim of ineffective assistance of PCR counsel as a ground for relief).
Because Ground Seven is not cognizable in a § 2254 petition, the Court recommends that summary judgment be granted against Petitioner on Ground Seven.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Respondent's motion for summary judgment [Doc. 19] be GRANTED and that the Petition be DENIED.
IT IS SO RECOMMENDED.