Opinion
C. A. 4:22-cv-3990-MGL-TER
01-26-2024
KEITH LEVAN, Petitioner, v. WARDEN, LEE CORRECTIONAL INSTITUTION, Respondent.
REPORT AND RECOMMENDATION
THOMAS E. ROGERS, III UNITED STATES MAGISTRATE JUDGE
Petitioner, Keith LeVan (Petitioner), appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 10, 2022. (ECF No. 1). On March 13, 2023, Respondent filed a motion for summary judgment along with a return and memorandum. (ECF Nos. 22 and 23). The undersigned issued an order on March 14, 2023, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (ECF No. 25). Petitioner requested an extension of time to file a response which was granted and he was given until June 15, 2023, to file a response or his case may be dismissed for failure to prosecute. Petitioner failed to file a response. A report and recommendation was entered on November 13, 2023, recommending that Respondent's motion for summary judgment be granted. (ECF No. 55). Petitioner filed a letter with the court stating that he responded to the motion for summary judgment. Although the court did not receive a response, Petitioner filed a letter with the court indicating he did file a response and the district judge gave Petitioner until January 5, 2023, to file a response. Petitioner filed a 273-page response on December 29, 2023. As a result, the matter was referred back to the undersigned for additional review. (ECF No. 61). Respondent filed a reply on January 5, 2024, and Petitioner filed additional attachments to his response. (ECF Nos. 65 and 66).
This habeas corpus case was automatically referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02, DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the district judge.
PROCEDURAL BAR
A federal court generally will address only issues which have been procedurally exhausted in state court. The United States Supreme Court has clearly stated that the procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts, Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if a state has procedural rules which bar its courts from considering claims not raised in a timely fashion. The two routes of challenging a conviction in South Carolina are through direct appeal and Post Conviction Relief (PCR). 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.
A federal court will consider a claim procedurally barred in state court unless a federal habeas Petitioner can show (1) cause for his failure to raise the claim in the state courts, and (2) actual prejudice resulting from the failure. Where a petitioner has failed to comply with state procedural requirements and cannot make the required showing(s) of cause and prejudice, the federal courts generally decline to hear the claim. A prisoner procedurally defaults on a claim if he fails to raise an argument “in his initial criminal proceeding or on direct appeal.” Marlowe v. Warden, FCI Hazelton, 6 F.4th 562, 571 (4th Cir. 2021). We may excuse such a default only if a prisoner can demonstrate “either cause and actual prejudice or that he is actually innocent.” United States v. McKinney, 60 F.4th 188, 193 (4th Cir. 2023) (internal quotation marks omitted) or unless a petitioner can show a miscarriage ofjustice. See Murray v. Carrier, 477 U.S. 478, 496 (1986). To establish prejudice, a prisoner must show more than “ ‘a possibility of prejudice.' ” Murray v. Carrier, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). Instead, he “must show that the default ‘worked to his actual and substantial disadvantage' and has ‘constitutional dimensions.' ” United States v. Green, 67 F.4th 657, 667-668 (4th Cir. 2023) (quoting Murray, 477 U.S. at 494) In order to demonstrate a miscarriage of justice, a 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 meet this actual innocence standard, the petitioner's case must be truly extraordinary. Carrier, 477 U.S. at 496.
PROCEDURAL HISTORY
Petitioner, Keith LeVan, (Petitioner/LeVan) is currently confined at the Lee Correctional Institution pursuant to orders of commitment from the Clerk of Court of Horry County. Petitioner was indicted during the April 2016 term of the Horry County Grand Jury Session for murder. Petitioner was also charged with possession of a weapon during the commission of a violent crime, but the State did not pursue that charge at trial. Petitioner was represented by Lawrence R. Filiberto, Esquire (Trial Counsel/Counsel). The case proceeded to trial by jury before the Honorable Stephan H. John on February 13, 2017. The jury found Petitioner guilty as indicted, and Petitioner was sentenced to forty years' imprisonment.
Direct Appeal
Petitioner timely filed a notice of appeal but later moved to withdraw the notice through counsel T. Kirk Truslow. Counsel affirmed he could find no appealable issues in the transcript. (ECF No. 23-2 at 131). The State court issued an order dismissing the direct appeal on September 13, 2017.
PCR
Petitioner filed his application for post-conviction relief (PCR) on October 24, 2017. (ECF No. 23-2 at 133). Petitioner was represented by T. Kirk Truslow, Esquire. Petitioner filed an amended application on August 3, 2019, asserting additional claims. (ECF No. 23-2 at 147). An evidentiary hearing into the matter was convened on November 30, 2018, before the Honorable Kristi F. Curtis. (ECF No. 23-2 at 151-215). On May 7, 2019, Judge Curtis issued an order denying and dismissing Petitioner's application with prejudice. (ECF No. 23-2 at 217-505).
PCR Appeal
PCR appellate counsel, Adam Sinclair Ruffin, represented Petitioner on appeal, and filed an amended petition for writ of certiorari raising the following one issue:
1. Did the PCR judge err in finding that counsel was not ineffective for failing to adequately present self-defense where the trial judge partially instructed the jury on the doctrine of mutual combat and counsel failed to request an instruction that if a combatant withdraws from the initial combat, he may still invoke selfdefense?(ECF No. 23-5 at 1-14).
The South Carolina Supreme Court transferred the appeal to the Court of Appeals in March 2020. (ECF No. 23-7). By Order dated May 31, 2022, the South Carolina Court of Appeals denied the petition. (ECF No. 23-10). The remittitur was issued on June 23, 2022. (ECF No. 23-11).
HABEAS ALLEGATIONS
Petitioner raised the following allegations in his petition:
GROUND ONE: Mr. LeVan was denied due process of law under the Sixth Amendment to the United States Constitution when his trial counsel failed to object to improper and incomplete jury instructions.
GROUND TWO: Mr. LeVan was denied due process of law under the 14th Amendment to the U.S. Constitution when trial court failed to provide a complete and correct interpretation of the law in jury instructions.
GROUND THREE: Mr. LeVan was denied due process under the 5th Amendment to the Constitution of the U.S. when the trial court permitted compelling communications or communicative acts that impermissibly bearing witness against him or herself.
GROUND FOUR: Mr. LeVan was denied due process under the 6th Amendment to the U.S. Constitution when trial attorney failed to investigate vehicle evidence.
GROUND FIVE: Mr. LeVan was denied his right to effective assistance of counsel under the 6th Amendment to the Constitution of the U.S. when his counsel completely failed to protect his human rights by not objecting and contesting the State's falsehood claims of a “Triangle Relationship” and LeVan's and his Spouse's sexual orientations.
GROUND SIX: Mr. LeVan was denied his right to effective assistance of counsel under the Sixth Amendment to the U.S. Constitution when trial counsel failed to properly conduct an investigation and committed malpractice.
GROUND SEVEN: Mr. LeVan was denied the Ninth Amendment to the Constitution of the U.S. Constitution when the court made ruling that disparaged both state laws and the constitutions of the State and United States.
GROUND EIGHT: Mr. LeVan and his family were denied their right to protections against cruel and unusual punishment under the 8thamendment to the Constitution of the U.S. when the State ignored and caused injuries and injurious Acts from the unlawful use of falsehoods in Extrajudicial conduct and prejudiced their sexual orientation.
GROUND NINE: Mr. LeVan was imprisoned and held in custody until excessive bail was paid, which violated his 8th Amendment to the Constitution Rights.
GROUND TEN: Mr. LeVan was denied Due Process under the 14th Amendment to the Constitution of the U.S. when the court permitted the testimony of a jury member who knew the victim's daughter; to influence other jury members.
GROUND ELEVEN: Mr. LeVan was denied effective assistance of counsel under the Sixth Amendment to the Constitution when Trial Counsel and PCR Counsel failed to move for a continuance.
GROUND TWELVE: Mr. LeVan was denied Equal Protection of Law and Due Process under the Fourteenth Amendment to the U.S. Constitution when the State made falsehoods about a prior charge of Mr. LeVan's which fell outside the jurisdiction of the Court.
GROUND THIRTEEN: Mr. LeVan was denied effective assistance of counsel under the Sixth Amendment to the Constitution when Trial Counsel refused to obtain compulsory Video Evidence to Prove Mr. LeVan's Claim to Events.
GROUND FOURTEEN: Mr. LeVan was denied Equal Protection of the law under the Fourteenth Amendment to the Constitution when the State failed to charge all those who created the conflict and the State failed to apply the rulings at trial to Mr. LeVan's sentence.
GROUND FIFTEEN: Mr. LeVan was Denied Equal Due Process of the Law under the Fourteenth Amendment to the Constitution of the U.S. when the State Court's Denied Mr. LeVan's petitions to court without just cause.
(ECF No. 1).
ANALYSIS OF PROCEDURAL EXHAUSTION
Respondent concedes Petitioner filed his petition within the one-year statute of limitations. (ECF No. 23 at 18).
In the reply to the Petitioner's response, Respondent submits that it agrees with the previous report and recommendation concluding that only parts of Grounds One, Four, Six and Thirteen in the habeas petition were properly exhausted and the remaining grounds are procedurally barred.
In Petitioner's response and additional attachments, he asserts that all of the grounds raised in his habeas petition are exhausted as they were raised at PCR. (ECF Nos. 64 and 66). Specifically, as to Ground Two, Petitioner argues that the claim is that the trial court failed to provide a complete and correct interpretation of the law in jury instructions which claim was exhausted at PCR because the jury instruction was based on counsel's failure to provide a theory of self defense.
To the extent that Petitioner is attempting to raise new arguments in his response in opposition, new matters cannot be raised in a response in opposition to a motion for summary judgment, Temple v. Oconee County, C/A No. 6:13-144-JFA-KFM, 2014 WL 4417702, at *13 (D.S.C.Sept.8, 2014) (citing White v. Roche Biomedical Labs., 807 F.Supp. 1212, 1216 (D.S.C.1992)), and the Court will not address these arguments.
As to Ground Three, Petitioner argues the claim was exhausted at PCR. The claim raised was a denial of due process when the “trial court permitted compelling communications or compelling acts that impermissibly bearing witness against him or himself.” In the response, Petitioner argues this issue was raised and ruled upon at PCR from the trial court's prejudicial ruling to allow “electronic communications” despite trial counsel's objections. In the additional attachments to the response, Petitioner appears to argue that Ground Three was raised and exhausted at the PCR hearing because this ground is related to his claim at PCR of ineffective assistance of counsel for failure to prepare to testify. Petitioner argues that the claim refers to all forms of compelling communications including home, video, text messages and are inclusive to Petitioner's trial testimony.
As to Ground Five, ineffective assistance of counsel for failure to object the State's falsehood claims of a “triangle relationship.” Petitioner argues this claim was exhausted at PCR. Specifically, Petitioner argues that counsel failed to object to slanderous statements allowing the State to use text message evidence and false statements as to the contents of wife's phone calls to the alleged victim without facts.
As to Ground Seven, denial of the Ninth Amendment of the Constitution when the court made a ruling that disparaged both state laws and the “constitution of the State and United States,” Petitioner doesn't set forth why this claim is exhausted and simply argues that had counsel obtained and reviewed actual contents of State's exhibit and home video prior to trial, he would have known prosecutor falsified contents. Also, he argues that the laws regarding protections for marital communications which are privileged were neglected.
As to Ground Eight, that his rights were violated when the “State ignored and caused injuries and injurious Acts from the unlawful use of falsehoods in extrajudicial conduct and prejudiced their sexual orientation,” Petitioner argues that he is entitled to relief because the “‘cumulative-error analysis” reveals its damages and harm inflicted on petitioner and wife based on the state's use of falsehoods as weapons in state proceedings. He asserts that “Prosecutorial immunity and misconduct are ‘weapons' used in state court proceedings, when left unchecked or undisciplined as in this case.”
Petitioner does not set forth any argument as to why Grounds Nine, Ten, and Eleven should be considered exhausted.
As to Ground Fourteen, a denial of equal protection when the “State failed to charge all those who created the conflict and the State failed to apply the rulings at trial to [his] sentence,” as in the other grounds discussed above, Petitioner argues that he exhausted this issue at PCR. Petitioner states that this issue was “raised at PCR where the rulings by the court were partial to the State and bias and prejudicial towards Mr. Levan. The State court's rulings denied justice to Petitioner as the State was a participant in the events that cause Mr. Selmon's death.” (ECF No. 54 at 258).
As to Ground Fifteen, a denial of Due Process “when the State Court denied his petitions to court without just cause,” Petitioner argues that the claim is exhausted because he reported claims of attorney misconduct to the State Supreme Court but they refused to acknowledge his petition because he had attorney representation. Petitioner argues that because he attempted to address issues to the State Supreme Court, all of the grounds raised in the petition are exhausted. (ECF No. 66 at 23).
Petitioner has not shown cause and prejudice to overcome the procedural default. Petitioner has only argued that the issues were exhausted as they were raised at PCR and attempted to intertwine the claims not raised with the claims that were raised at PCR. Further, the only issue raised in the PCR appeal was the following:
As previously stated, “To establish prejudice, a defendant must show that the error ‘worked to his actual and substantial disadvantage.' ” McKinney, 60 F.4th 188 at 195 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). Petitioner has not and cannot demonstrate that he was prejudiced. As set forth below, there was overwhelming evidence presented at trial against Petitioner. The PCR court found Petitioner brought about the confrontation by arming himself and arranging the meeting, the victim did not possess a weapon, Petitioner was armed with an AR-15, and Petitioner had many other means of avoiding the confrontation in the first place.
Did the PCR judge err in finding that counsel was not ineffective for failing to adequately present self-defense where the trial judge partially instructed the jury on the doctrine of mutual combat and counsel failed to request an instruction that if a combatant withdraws from the initial combat, he may still invoke self-defense?
(See ECF No. 23-5). Accordingly, based on a review of the record contained in the return and Petitioner's response to summary judgment, the court concludes that except partially for Grounds One, Four and Six and Thirteen, the issues raised in the habeas petition are not properly exhausted and preserved. See McCray v. State, 455 S.E.2d 686, n.1 (S.C. 1995) (stating issues not raised in a petition for a writ of certiorari from the denial of a petitioner's PCR application are not preserved for appellate review); See, e.g., Mahdi v. Stirling, 20 F.4th 846, 893 (4th Cir. 2021) (“[A] claim is procedurally barred if the petitioner fail[s] to raise [it] in his petition for certiorari to the South Carolina Supreme Court for review of the State PCR Court's decision.”) (citation and internal quotation marks omitted); Longworth v. Ozmint, 377 F.3d 437, 447-48 (4th Cir. 2004) (finding that a petitioner's claim in his habeas petition was procedurally defaulted when he raised the claim in PCR but did not present it in his petition for certiorari filed with the South Carolina Supreme Court). Therefore, the other claims were not exhausted and preserved for review. Consequently, these claims would be procedurally barred for federal habeas review because they would be barred by an independent state procedural rule. See Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008). Accordingly, the court will address the merits of the exhausted claims raised in Grounds One, Four, Six, and Thirteen and it is recommended that the remaining claims be dismissed as procedurally defaulted.
STANDARD FOR SUMMARY JUDGMENT
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c).
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
STANDARD OF REVIEW
In addition to the standard that the court must employ in considering motions for summary judgment, the court must also consider the petition under the requirements set forth in 28 U.S.C. § 2254. Under § 2254(d),
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the State court proceeding.
Thus, a writ may be granted if a state court “identifies the correct principle from [the Supreme] Court's decisions but unreasonably applies that principle of law” to the facts of the case. Humphries v. Ozmint, 397 F.3d 206, 216 (4th Cir. 2005) (citing Williams v. Taylor, 529 U.S. 362, 413 (2000)). However, “an ‘unreasonable application of federal law is different from an incorrect application of federal law,' because an incorrect application of federal law is not, in all instances, objectively unreasonable.” Id. “Thus, to grant [a] habeas petition, [the court] must conclude that the state court's adjudication of his claims was not only incorrect, but that it was objectively unreasonable.” McHone v. Polk, 392 F.3d 691, 719 (4th Cir. 2004). Further, factual findings “made by a State court shall be presumed to be correct,” and a Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
When presented with an application for habeas relief, the first inquiry by the court is to determine whether the claim raised in the petition was “adjudicated on the merits” by the state court. 28 U.S.C. §2254(d). If the claim was properly presented to the state court and the state court adjudicated it, the deferential standard of review set forth in §2254(d) applies and federal habeas corpus relief may not be granted unless the relevant state-court adjudication “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” Id. § 2254(d)(1),(2); see Williams v. Taylor, 529 U.S. at 398.
ANALYSIS
In his petition, Levan alleges claims of ineffective assistance of his trial counsel. The Sixth Amendment to the United States Constitution guarantees a defendant the right to effective assistance of counsel in a criminal prosecution. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). In the case of Strickland, supra, the United States Supreme Court set forth two factors that must be considered in evaluating claims for ineffective assistance of counsel. A petitioner must first show that his counsel committed error. If an error can be shown, the court must consider whether the commission of an error resulted in prejudice to the defendant.
To meet the first requirement, “[t]he defendant must show that counsel's representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Turner v. Bass, 753 F.2d 342, 348 (4th Cir. 1985) (quoting Strickland), reversed on other grounds, 476 U.S. 28 (1986). In meeting the second prong of the inquiry, a complaining defendant must show that he was prejudiced before being entitled to reversal. Strickland requires that:
[T]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Strickland, 466 U.S. at 694.
The court further held at page 695 that:
[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct . . . the court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. (Emphasis added.)Id.; Williams v. Taylor, 529 U.S. 362 (2000)(confirming the Strickland analysis).
Ground One
In Ground One of the habeas petition, Petitioner argues that he was denied due process of law under the Sixth Amendment to the United States Constitution when his trial counsel was ineffective for failing to object to the trial judge's improper instruction of self-defense law and mutual combat. The issue raised and ruled on by the PCR court pertained to whether or not counsel was ineffective for failing to develop a self-defense theory. There was no ruling at PCR as to whether or not counsel was ineffective for failing to object to the trial court's self-defense instruction and no issue raised or ruled upon at PCR with reference to the “mutual combat” instruction.
In the initial memorandum, Respondent argued that Ground One in its entirety was not exhausted. In the reply, Respondent states that it agrees with the analysis as to Ground One in the previous report and recommendation wherein this court found that parts of Ground One raising an issue of ineffective assistance of counsel for failing to develop and present a selfdefense theory had been exhausted. (ECF No. 65).
However, with regard to Petitioner's issue of ineffective assistance of counsel for failing to properly develop a self-defense theory, the issue was raised and denied by the PCR court and denied on appeal. Therefore, this portion of Ground One has been exhausted. In the response, Petitioner argues that trial counsel failed to present an adequate defense or defense strategy with regard to self-defense. Further, Petitioner argues that trial counsel failed to warn the jury of the State's extensive use of misidentification and should have provided a self-defense theory in the opening argument. Petitioner contends that had trial counsel developed a trial strategy or attempted to mitigate the case with some form of strategy, the outcome of the trial would have been different, and the trial judge would have given different jury instructions based on the facts.
A review of the PCR court's order of dismissal does not address any argument with regard to a mutual combat instruction. As to the argument of the self-defense theory, the PCR court found no deficiency of trial counsel nor any prejudice to Petitioner from the deficiency alleged. (ECF No. 1 at 230-234). The PCR court noted that the State refuted self-defense element by element, including that Petitioner brought about the confrontation by arming himself and arranging the meeting, the victim did not possess a weapon, Petitioner was armed with an AR-15, and Petitioner had many other means of avoiding the confrontation in the first place. Counsel argued in Closing that Petitioner changed his mind after meeting Victim while waiting in the parking lot, but was followed by victim, was struck by the victim's vehicle, and only then grabbed his rifle and shot at the victim. In reply, “the State emphasized Applicant's statements to police that he went to confront Victim with the specific intent of scaring him or shooting at his vehicle.” (ECF No. 1 at 232). The PCR court found that “Given the totality of the facts before this court, including those presented at trial and the testimony presented during the evidentiary hearing, this Court finds Counsel effectively and adequately advanced a theory of self-defense on Applicant's behalf at trial.” (ECF No. 23-2 at 234). Further, the PCR Court found “Counsel correctly identified the strengths and weaknesses of the self-defense strategy during the evidentiary hearing, as well as during his own tactful treatment of the evidence during his closing argument at trial.” The PCR court found trial counsel credible as to all matters related to this allegation and found Petitioner did not present any evidence to show how he could have more likely prevailed upon the theory of selfdefense if Counsel had committed additional time to prepare. Because Petitioner fails to show an incorrect application of Strickland or an unreasonable determination of the facts, the PCR court's rejection of Petitioner's claim of ineffective assistance of counsel as to this issue did not result “in a decision that was contrary to . . . clearly established Federal law, . . . or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §§ 2254(d)(1)-(2); Williams v. Taylor, 529 U.S. at 40405. Accordingly, Petitioner's Ground One should be dismissed.
Respondent did not raise the affirmative defense of procedural bar with regard to Ground Four.
In Ground Four, Petitioner alleges trial counsel was ineffective for failing “to investigate vehicle evidence.” (ECF No. 1). Specifically, he argues trial counsel was ineffective for failing to object to the prosecution's unfounded statements to the jury that his Volvo had tinted windows and that he shot at the Victim's vehicle intending for the gas tank to explode. Further, Petitioner asserts that had counsel investigated the vehicles, he would have found that Petitioner's blood was on the underside of the victim's vehicle from the victim striking him with his vehicle. In his response to summary judgment, Petitioner argues that he explained to counsel that he was an expert in the automotive field and had previously served as a witness for Horry County government as an automotive “expert witness” under the subpoena of Scott Hixon, the same prosecutor in Petitioner's case. (ECF No. 64 at 81). Petitioner asserts if trial counsel had investigated his knowledge of automobiles, he could have used Petitioner's expertise to challenge the prosecution's misidentifications of vehicle evidence. Id. As a result, Petitioner asserts that the jury's verdict was based on slander of Petitioner.
Respondent argues that Petitioner has not shown how counsel was ineffective for failing to investigate the evidence and/or object at trial, and Petitioner has not shown prejudice because there was overwhelming evidence of Petitioner's guilt including a video recording of the incident, the Petitioner confessed to the crime to his wife and on the witness stand, and there is no evidence of self-defense.
In the PCR order of dismissal, Judge Curtis held the following with relation to the allegation that counsel was ineffective for failing to investigate Petitioner's vehicle in Ground Four:
. . . In order to prevail upon a claim that counsel did not adequately prepare or investigate a case, an applicant must present evidence of what counsel could have discovered or what other defenses applicant could have requested counsel develop and present had counsel been more prepared. . . Furthermore, an applicant must also present evidence to show how the discoverable matters or defenses would have resulted in a different outcome....Mere speculation as to how the alleged lack of preparation prejudiced an applicant is not sufficient to support a grant of relief.
Failure to Visit Incident Site and Inspect Vehicle
Applicant alleges Counsel was ineffective in failing to visit the incident site and inspect Applicant's vehicle, which prevented Counsel from understanding Applicant's theory of self-defense....Additionally, Counsel testified that Applicant's vehicle had no damage-compared to Victim's, which had multiple bullet holes. Applicant has failed to meet his burden of proof as to either prong of Strickland and, as such, his request for relief by way of allegation is denied and dismissed.(ECF No. 23-2 at 222-223, 229).
Petitioner fails to show that the state court's denial of relief was based on an objectively unreasonable determination of the facts based on the state court record. 28 U.S.C. § 2254(d)(2). “An unreasonable determination of the facts is not merely an incorrect determination, but one ‘sufficiently against the weight of the evidence that it is objectively unreasonable.'” Gray v. Zook, 806 F.3d at 790, citing Winston I, 592 F.3d at 554. Review under Section 2254(d)(2) is informed by Section 2254(e)(1), which gives a presumption of correctness to state court factual findings. See 28 U.S.C. § 2254(e)(1); see also Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (“We . . . accord state court factual findings a presumption of correctness that can be rebutted only by clear and convincing evidence.”) (citing 28 U.S.C. § 2244(e)(1)). The PCR court noted that on cross examination, Petitioner testified he used his wife's Facebook account to message the victim and planned to confront him around 4:00 a.m.. Petitioner took his wife's Volvo and went to the meeting place armed with a rifle. (ECF No. 23-2 at 233). The PCR court further noted that Counsel testified at the evidentiary hearing that the central problem with the case was that Petitioner set up the confrontation with the victim and that the video from Petitioner's own home surveillance system showed him preparing his rifle prior to the confrontation. (ECF No. 23-2 at 233). The PCR court concluded Petitioner presented no evidence at the PCR hearing to show how he could have more likely prevailed upon the theory of self- defense if Counsel had committed additional time to preparation on the subject. Further, based on the facts and evidence at trial, the PCR court held Petitioner “failed to show any possibility, let alone a reasonable probability that the jury would have or could have reached a different outcome given additional preparation of Counsel. For all of these reasons, Applicant has failed to meet his burden of showing ineffectiveness under either prong of Strickland . . .” (ECF No. 23-2 at 3). Because Petitioner fails to show an incorrect application of Strickland or an unreasonable determination of the facts, the PCR court's rejection of Petitioner's claim of ineffective assistance of counsel as to this issue did not result “in a decision that was contrary to . . . clearly established Federal law, . . . or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §§ 2254(d)(1)-(2); Williams v. Taylor, 529 U.S. at 404-05. Therefore, it is recommended that Petitioner's Ground Four be dismissed.
See Beaver v. Thompson, 93 F .3d 1186, 1195 (4th Cir. 1996) (“an allegation of inadequate investigation does not warrant habeas relief absent a proffer of what favorable evidence or testimony would have been produced.”).
Respondent did not raise the affirmative defense of procedural bar with regard to Ground Six.
In Ground Six, Petitioner argues ineffective assistance of counsel for failing to conduct a proper investigation and for committing malpractice. Within the supporting facts, Petitioner argues counsel failed to use a private investigator to interview witnesses and obtain video evidence, failed to locate Petitioner's vehicle to refute information on the incident report, falsely testified that not one witness was willing to testify, and made derogatory, racial statements about potential witnesses. Petitioner argues that “[t]he total conduct of the investigation did not comply with Mr. LeVan's requests to focus on video surveillance retrieval, esp. Walmart video, ballistic evidence, vehicle evidence, and the history and law regarding ‘Electronic communication'” (ECF No. 1 at 3). In response to summary judgment, Petitioner argues that trial counsel never visited the incident scene and had no intention to investigate Petitioner's case because he planned to have Petitioner enter a plea. Petitioner argues that if trial counsel had investigated the scene, he would have seen that the loading dock area behind the H.H. Gregg store was located at a busy intersection where no-one would go to meet privately. Therefore, counsel would have been able to object to the prosecutor's false statements that Petitioner and the victim met at the H.H. Gregg loading dock where it was dark and secluded. (ECF No. 64 at 124). Further, Petitioner indicated that there was a police vehicle sitting outside of Walmart at 4:00 in the morning that could verify that Petitioner and the victim initially met at the Walmart garden center and Petitioner left with the victim following him. However, instead of trial counsel obtaining GPS and/or videos to verify the fact, Petitioner asserts trial counsel was ineffective for failing to perform and independent investigation but relied on the response from the police that they were not in the vicinity of the incident. (ECF No. 23-2 at 174). Petitioner testified that at the PCR hearing that he “drove around the parking lot in the visibility of the cameras of the Walmart parking lot.” (ECF No. 287). Petitioner testified that the detectives viewed surveillance videos from other stores but did not produce those at trial. (ECF No. 23-2 at 161).
In his response, Petitioner argues that counsel testified that all 40 cameras at Walmart were not functioning and the PCR court was unreasonable in finding that testimony credible. However, trial counsel did not testify that all of the cameras at Walmart were not functioning the night of the incident. Counsel testified that the general manager at the HomeGoods store stated that the camera in the rear of that store was not functioning. Further, there was no finding by the PCR court in the order of dismissal that all the cameras were not functioning at Walmart the night of the incident as petition alleged.
Respondent argues that the parts of Ground Six regarding investigator impropriety and counsel's allegedly improper contact with the police over Petitioner's vehicle were not properly exhausted below. Respondent further argues that with regard to the remaining claims in Ground Six, the PCR court found no deficiency by trial counsel, found overwhelming evidence of guilt, and Petitioner failed to produce evidence showing prejudice.
To exhaust his available state court remedies, a petitioner must “fairly present to the state court both the operative facts and the controlling legal principles associated with each claim.” Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (internal quotation marks and citation omitted). Thus, a federal court may consider only those issues which have been properly presented to the state appellate courts with jurisdiction to decide them. Generally, a federal habeas court should not review the merits of claims that would be found to be procedurally defaulted (or barred) under independent and adequate state procedural rules. Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008); Longworth, 377 F.3d 437; see also Coleman v. Thompson, 501 U.S. 722 (1991). The court agrees with Respondent that the portion of Ground Six pertaining to allegations of investigator impropriety and counsel's alleged improper contact with law enforcement over his vehicle were not exhausted and are procedurally defaulted from federal habeas review.
The exhaustion requirement demands that the petitioner “do more than scatter some makeshift needles in the haystack of the state court record. The ground relied upon must be presented face-up and squarely; the federal question must be plainly defined. Oblique references which hint that a theory may be lurking in the woodwork will not turn the trick” Mallory v. Smith, 27 F.3d 991, 995 (4th Cir.1994) quoting Martens v. Shannon, 836 F.2d 715, 717 (1st Cir.1988).
The remaining claims contained in Ground Six address credibility determinations made by the PCR court. “F]or a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear.” Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)).
With regard to Petitioner's argument that counsel was ineffective for failing to obtain surveillance videos, trial counsel testified at the PCR hearing that they attempted to obtain recordings from the surveillance camera located at the rear of the HomeGoods. However, counsel testified that they “communicated with the general manager of the store and [the manager] indicated that there was no functional surveillance system behind the store, which is really where the confrontation took place.” (ECF No. 23-2 at 190). Counsel testified that he did not recall that officers went to view surveillance tapes at the Walmart store but did not take possession of them or produce them in discovery, as asserted by Petitioner. (Id.). At the PCR hearing, Counsel testified that even if there had been a police vehicle sitting outside Walmart there was no way they could see behind the Homegoods store which was a quarter-mile away. Even if the police vehicle was there with the dash cam activated, it would not have been able to pick up the incident that far away and behind the store. (Id. at 201,228). However, Counsel testified that there was “plenty of evidence of Mr. Levan being there [Walmart], rolling down the window. Mr. Selmon saw him, drove away . . . Mr. Selmon did pursue him.” (Id.). Counsel testified that he did not recall Petitioner suggesting that he obtain surveillance videos from SCDOT cameras in the area. (Id. at 213). The PCR court found trial counsel credible and that Petitioner failed to meet his burden of showing ineffective assistance of counsel. Id. The PCR court found that Petitioner presented no evidence to satisfy his burden of showing prejudice, as he produced no additional store surveillance videos or any recordings from SCDOT cameras, but only the sole Costco store surveillance footage used at trial. Id.
It is noted Petitioner did not provide any evidence to support his position that the videos from surveillance cameras he contends should have been obtained by counsel were in fact functioning on the date of the incident or how the videos would have created a reasonable probability that the result of the proceeding would have resulted in a different outcome. Counsel testified at PCR that there was evidence presented that Petitioner and Victim first met at the Walmart, that Petitioner drove off, and that the victim followed him. (ECF No. 23-2 at 191, 201).
With regard to any argument in Ground Six that Petitioner may be attempting to raise as to counsel being ineffective in addressing ballistics evidence, the argument fails. The PCR court held the following:
At the evidentiary hearing, Applicant testified he requested an expert witness to review the ballistic evidence to be used at trial because no ballistic testing was ever conducted on the firearm recovered by police. However, Counsel credibly testified that any issue regarding lack of testing was resolved by the inculpatory statement given to police by the Applicant and his wife wherein Applicant admitted to shooting the victim. Counsel explained that because of all of the overwhelming direct evidence against Applicant in this case, the best course of action was one of mitigation.
Applicant failed to present any new evidence or testimony to this Court at the evidentiary hearing that would indicate expert witness testimony would have been beneficial to his case. Therefore, this Court finds no deficiency on behalf of Counsel by not retaining an expert witness to testify at trial. Applicant has failed to meet his burden under Strickland and his request for relief by way of this allegation. . .(ECF No. 23-2 at 224-225).
The court further held:
Applicant alleges Counsel was ineffective in failing to present ballistics evidence at trial. . . Applicant directed law enforcement to the weapon he discharged at Victim, Counsel credibly denied Applicant's assertion of telling Counsel the prosecution had the wrong gun, and no ballistics evidence was presented at the evidentiary hearing. Applicant has failed to meet his burden of proof as to either prong of Stickland and, as such, his request for relief by way of [this allegation] is denied and dismissed.
Petitioner fails to show that the state courts' denial of relief was based on an objectively unreasonable determination of the facts based on the state court record. 28 U.S.C. § 2254(d)(2).(ECF No. 23-3 at 3).
Petitioner has not shown the PCR court's determination to be unreasonable in either law or fact. Petitioner did not present testimony at PCR nor did he explain how testimony from a ballistic's expert could have changed the outcome of his trial and did not present any surveillance video. Accordingly, Petitioner fails to show a reasonable probability that, but for Trial Counsel's alleged errors, the result of the proceeding would have been different. The PCR court did not misapply the law and found that Petitioner failed to meet the first and second prongs of Strickland. The PCR court's factual determinations regarding credibility are entitled to deference in this action. Additionally, a presumption of correctness attaches to state court factual findings. 28 U.S.C. §2244(e)(1). Evans v. Smith, 220 F.3d 306 (4th Cir. 2000). Based upon the record, the PCR court's rejection of the ineffective assistance of counsel ground for relief was not “contrary to, or involved an unreasonable application of, clearly established Federal law; or did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” § 2254(d)(1), (2); Williams, supra. In this case, Petitioner fails to meet the Strickland test. Therefore, it is recommended that Ground Six be denied and dismissed.
See Bassette v. Thompson, 915 F.2d 932, 940-41 (4th Cir. 1990) (petitioner must proffer the identification of potential witnesses and their specific testimony that allegedly would have been favorable); see also Beaver v. Thompson, 93 F.3d 1186, 1195 (4th Cir. 1996) (“[A]n allegation of inadequate investigation does not warrant habeas relief absent a proffer of what favorable evidence or testimony would have been produced.”).
Respondent did not raise the affirmative defense of procedural bar with regard to Ground Thirteen.
In Ground Thirteen, Petitioner alleges ineffective assistance of counsel for failing to obtain various store surveillance videos from the shopping center where the shooting occurred. Petitioner argues that the videos would have shown the Victim's aggression during the confrontation which would support his argument of selfdefense. Petitioner testified at the PCR hearing that trial counsel did not go to the stores to obtain surveillance video evidence but said he would obtain them through discovery. (ECF No. 23-2 at 225). Petitioner testified that after the trial, he learned the videos had not been available but that detectives allegedly had gone and viewed videos at Walmart but never took possession of them. Id. Petitioner testified that he had driven past Walmart and H.H. Gregg and believed their store surveillance cameras caught him in frame. Id. Further, Petitioner testified that he wanted Counsel to obtain recordings from surveillance cameras operated by the SCDOT around the area where the shooting occurred, but Counsel did not obtain them. Id. In his response to summary judgment, Petitioner argues counsel failed to obtain the numerous surveillance videos in the area as he requested. Petitioner alleges fraud on the part of the prosecutor for stating without evidentiary support that Petitioner was driving to meet the victim in the H.H. Gregg parking lot, and counsel failed to object and have video evidence to show they met at Walmart first. Petitioner argues trial counsel was ineffective by relying on friends on the police force for answers instead of investigating whether or not a patrol vehicle was in the vicinity and if there were any Walmart videos to show the confrontation to contradict the state's falsehoods. In his response, Petitioner cites to several cases finding ineffective assistance of counsel concerning failure to put on a defense, counsel relying on the state's investigation, and counsel failing to conduct an investigation into physical evidence that would have undermined the prosecution's theory. Petitioner argues that trial counsel's failure to obtain the video evidence to conduct a necessary investigation was ineffective. Petitioner argues that trial counsel was unprepared as he failed to obtain compulsory evidence that the police failed to provide such as the Walmart video. He contends that the Walmart video was very significant because the initial confrontation occurred in the Walmart parking lot not in the H.H. Gregg parking lot as stated by the prosecution. Petitioner argues the PCR court was incorrect in finding that all of the surveillance cameras at Walmart were not functioning. Petitioner argues that the videos would have shown correct date stamps and that the victim chased him from the Walmart parking lot to the H.H. Gregg parking lot when he tried to retreat. Petitioner demands proof that the video cameras were not working at the Walmart the night of the incident.
Again, the PCR court did not state in the order of dismissal that the Walmart surveillance cameras were not functioning on the date of the incident. Further, trial counsel did not testify at the PCR hearing that all of the Walmart surveillance cameras were not functioning.
Respondent argues that Petitioner has not shown that but-for this evidence not being presented at trial- the result of his trial would have been different. Respondent notes that there was no testimony or evidence to rebut in this case because Petitioner confessed, the entire shooting was caught on video, and Facebook messages and text messages were introduced at trial along with a video from Petitioner's own home that showed how he planned, executed, and attempted to cover up the crime. Thus, Respondent argues that PCR Judge Curtis reasonably held that trial counsel was not deficient in any area of his representation of Petitioner and he mitigated the case the best he could under the circumstances.
As discussed above, Counsel testified at the PCR hearing that he attempted to obtain recordings from the surveillance camera located at the rear of the HomeGoods store but learned from the general manager that there was no functioning surveillance system in the rear of the store on the date of the incident. Further, Counsel testified that he did not recall that officers went to view surveillance videos at any store which they did not produce in discovery and that he did not recall Petitioner suggesting he obtain surveillance videos from SCDOT cameras. (ECF No. 23-2 at 226).
The PCR court found Trial Counsel credible and that Petitioner failed to meet his burden of showing ineffective assistance of counsel. The PCR court recognized that Petitioner presented no evidence to satisfy his burden of showing prejudice, as he produced no additional store surveillance videos or any recordings from SCDOT cameras, but only the sole Costco store surveillance footage used at trial. See Beaver v. Thompson, 93 F.3d 1186, 1195 (4th Cir. 1996) (“[A]n allegation of inadequate investigation does not warrant habeas relief absent a proffer of what favorable evidence or testimony would have been produced.”); Phipps v. Kendall, No. 921CV03739MGLMHC, 2022 WL 3146219, at *8 (D.S.C. Apr. 7, 2022), report and recommendation adopted, No. CV 9:21-03739-MGL, 2022 WL 2751627 (D.S.C. July 14, 2022). Petitioner did not present evidence to show how the discoverable matters or defenses would have resulted in a different outcome. Petitioner fails to show that the state court's denial of relief was based on an objectively unreasonable determination of the facts based on the state court record. 28 U.S.C. § 2254(d)(2).
The PCR court did not misapply the law and found that Petitioner failed to meet the first and second prongs of Strickland. The PCR court's factual determinations regarding credibility are entitled to deference in this action. Additionally, a presumption of correctness attaches to state court factual findings. 28 U.S.C. §2244(e)(1). Evans v. Smith, 220 F.3d 306 (4th Cir. 2000). Based upon the record, the PCR court's rejection of the ineffective assistance of counsel ground for relief was not “contrary to, or involved an unreasonable application of, clearly established Federal law; or did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” § 2254(d)(1), (2); Williams, supra. In this case, Petitioner fails to meet the Strickland test. Therefore, it is recommended that Ground Six be denied and dismissed.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's motion for summary judgment (ECF No. 22) be GRANTED in its ENTIRETY, and the petition be dismissed without an evidentiary hearing.
Respectfully submitted, The parties' attention is directed to the important notice on the next 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
Post Office Box 2317
Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).