Opinion
C. A. 4:22-cv-03264-BHH-TER
08-24-2023
RONNIE MARTIN, Petitioner, v. KENNETH NELSON, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge
Petitioner, appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on September 23, 2022. (ECF No. 1). On December 22, 2022, Respondent filed a motion for summary judgment along with a return and memorandum in support. (ECF Nos. 16 and 17). The undersigned issued an order on January 5, 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. 18). Petitioner filed a response on February 17, 2023. (ECF No. 32). Respondent has not filed a reply and the time to do so has passed. After careful consideration of the record and the parties' arguments, the court recommends granting Respondent's motion for summary judgment and dismissing the petition.
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 HISTORY
According to the evidence at trial, around 8:00 p.m. on December 13, 2013, someone kicked in the door of Ms. Dianne Williams's home, entered the home, and ran away with her purse. Ms. Williams witnessed the crime and identified Petitioner as the perpetrator. Petitioner had been at Ms. Williams's house earlier that day and was known to her.
In February 2014, the Saluda County Grand Jury indicted Petitioner for first-degree burglary. (ECF No. 16-3 at 192). Petitioner proceeded to trial in May 2015 before the Honorable R. Knox McMahon, represented by attorney Bennett Casto (“Trial Counsel”). (ECF No. 16-1 at 3). After a two-day trial, the jury found Petitioner guilty and Judge McMahon sentenced him to life in prison without the possibility of parole. (ECF No. 16-2 at 158-59, 176).
Direct Appeal
On appeal, Petitioner presented the following issues:
1. Whether the trial court erred in excluding third-party guilt evidence.
2. Whether the trial court erred in admitting recorded jail calls between Appellant and his girlfriend.
3. Whether the trial court erred in denying a jury instruction on the lesser offense of second degree burglary.
4. Whether the solicitor's statements so infected the trial with unfairness as to make Appellant's resulting conviction a denial of due process.
5. Whether these errors and statements, individually or in aggregate, require reversal of Appellant's conviction.(ECF No. 16-2 at 181). The South Carolina Court of Appeals affirmed Petitioner's conviction by order dated June 21, 2017. (ECF No. 16-3 at 18-23). The remittitur issued on July 7, 2017. (ECF No. 16-3 at 24).
PCR Action
On October 4, 2017, Petitioner filed a pro se application for post-conviction relief, asserting numerous grounds of ineffective assistance of counsel. (ECF No. 16-3 at 25-30). After briefing by the State, the Honorable Walton J. McLeod, IV, conducted an evidentiary hearing. (Id. at 45-159). Petitioner was represented at the hearing by Benjamin Stitely and proceeded on claims that Trial Counsel was ineffective for:
a. Failing to convey all plea offers;
b. Failing to enter into plea negotiations for a reduced charge;
c. Failing to investigate and to call witnesses;
d. Failing to prepare for trial;
e. Failing to object to the classification of Quinton Samuels as mentally ill;
f. Failing to object to the trial court taking judicial notice this crime occurred at night;
g. Failing to object to leading questions;
h. Failing to object to the chain of custody of the purse;
i. Failing to object to statements made by Kimberly Gantt that Applicant was sending threatening letters to her;
j. Failing to object to hearsay;
k. Failing to introduce the 911 tape into evidence; and l. Failing to interview Quinton Samuels prior to calling him as a witness.(Id. at 45, 165). Judge McLeod denied and dismissed Petitioner's application on March 19, 2019. (Id. at 160-91).
Petitioner timely appealed through a Petition for Writ of Certiorari that presented one issue:
Whether the PCR court erred where it found counsel provided effective representation in petitioner's trial for first-degree burglary, where counsel failed to object to the trial court's decision to take judicial notice of the time of sunset, where the complainant insisted that the crime occurred in the “middle daylight,” and said, “it wasn't dark,” since the trial court may not take judicial notice of a fact when that fact is an element of the offense, because the state must prove beyond a reasonable doubt every element of a charged offense?(ECF No. 16-5 at 3). The South Carolina Court of Appeals denied the petition on August 18, 2022. (ECF No. 16-6). The remittitur issued on September 12, 2022. (ECF No. 16-7). This action followed.
The court assumes the State filed a responsive brief to Petitioner's petition for writ of certiorari and that the South Carolina Supreme Court transferred the matter to the Court of Appeals pursuant to Rule 243, SCACR. The State's return and the order transferring the case are not included in the record before the court. However, neither document is relevant to the disposition of this case nor are their existence in dispute.
HABEAS ALLEGATIONS
Petitioner raised the following allegations in his petition, quoted verbatim:
GROUND ONE: Ineffective assistance of counsel
Supporting Facts: Counsel failed to render reasonably effective assistance under prevailing pr[o]fessional norms and that petitioner was prejudiced by his counsel['s] ineffective performance
GROUND TWO: Prosecutorial Misconduct
Supporting Facts: The reversible errors discussed infra were compounded by and cannot be d[i]vorced from highly prejudicial statements made by solicitor that were unsupported by the evidence pr[o]secution is to seek justice. Although the prosecutor should “prosecute with e[a]rnestness and vigor “he or she may not use “improper methods calculated to produce a wrongful conviction.
GROUND THREE: Lesser included offense
Supporting Facts: The solicitor refusing to instruct the jury on lesser included offense of second degree burglary. Martin also argues the solicitor's opening and closing statements so infected the trial with unfairness that it deprived him of due process, and he contends his conviction should be reversed because of the cumulative errors of the trial court.
GROUND FOUR: Third party guilt
Supporting Facts: The trial court's most prejudicial error was the exclusion of evidence of third party guilt which evidentiary ruling tainted the entire trial this error alone constitutes reversal of Ronnie Martin's conviction.(Petition, ECF No. 1 at 5, 7, 8, 10).
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).
Respondent concedes Petitioner filed his petition within the one-year statute of limitations. (ECF No. 16 at 14).
Ground One
In Ground One, Petitioner alleges Trial Counsel was ineffective. (ECF No. 1 at 5). Based on Petitioner's brief in support of his petition, Respondent discerned claims that Trial Counsel was ineffective for failing to (1) move to quash the indictment, (2) investigate factual and legal matters, (3) object to portions of the State's opening and closing arguments, and (4) object when the trial court took judicial notice of the time of sunset on the day of the crime. (ECF No. 16 at 15). In his response to Respondent's motion for summary judgment, Petitioner asserts his claims include allegations that Trial Counsel was ineffective for failing to (1) adequately investigate and prepare for trial, (2) object to statements by the State in opening and closing arguments, (3) adequately meet with Petitioner or advise him prior to trial, and (4) object to the trial court taking judicial notice of the time of sunset on the date of the crime. (ECF No. 32 at 11). Because Petitioner's response does not include a claim of ineffective assistance of counsel related to the indictment, the court will deem that allegation voluntarily abandoned.
As to Petitioner's remaining allegations, Respondent contends Petitioner's claims regarding Trial Counsel's failure to object during the State's opening and closing arguments and to the trial court's taking judicial notice of the time of sunset on the date of the crime are procedurally defaulted. (ECF No. 16 at 16-18). Respondent does not assert Petitioner's claim regarding Trial Counsel's failure to investigate is procedurally defaulted.
Respondent addresses these two claims as independent allegations of trial error by the prosecuting attorney and trial court and argues they are procedurally defaulted because Trial Counsel's failure to object to the errors at trial meant they were not preserved for appellate review and thus are not properly before this court. (ECF No. 16 at 16-18). Trial Counsel's failure to object and whether that failure constituted ineffective assistance of counsel were proper claims for post-conviction collateral relief, not direct appeal, and were properly presented to the PCR court. If this portion of Respondent's brief is meant to address Petitioner's allegation of prosecutorial misconduct in Ground Two, that is unclear as it appears under the “Ineffective Assistance of Counsel” heading and buried among the other ineffective assistance of counsel claims. (Id.) The court assumes, based on the location in Respondent's brief and the law cited, that this procedural default argument is responsive to both Ground One and Ground Two.
Petitioner raised a number of ineffective-assistance-of-counsel claims in his PCR proceedings but only one in his PCR appeal-whether Trial Counsel was ineffective for failing to object when the trial court took judicial notice of the time of sunset on the date of the crime. (See ECF No. 16-5 at 3). Accordingly, that is the only allegation of ineffective assistance of counsel that Petitioner has 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). However, because Respondent has not asserted procedural default as to Petitioner's claim that Trial Counsel was ineffective for failing to investigate, the court must address the merits of that allegation as well. See Plymail v. Mirandy, 8 F.4th 308, 316-17 (4th Cir. 2021) (noting procedural default is an affirmative defense that must be raised by the State); Gray v. Netherland, 518 U.S. 152, 165-66 (1996) (procedural default is an affirmative defense that is waived if not raised by a respondent).
Petitioner's response includes some general language about procedural default. (ECF No. 32 at 14-15). To the extent this could be liberally construed to assert cause and prejudice for the default of these claims, the only discernible basis for that assertion is ineffective assistance of his PCR appellate counsel for not raising the claims in the petition for writ of certiorari. (See Id. (discussing the importance of asserting ineffective of assistance of counsel claims in collateral proceedings)). Ineffective assistance of collateral appellate counsel does not constitute cause to excuse procedural default. See Mahdi v. Stirling, 20 F.4th 846, 893 (4th Cir. 2021) (confirming that claims of ineffective assistance of PCR appellate counsel cannot constitute cause for failure to exhaust).
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 v. Washington, 466 U.S. 668 (1984), 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, 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)). The Court further held 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, 120 S.Ct. 1495 (2000) (confirming the Strickland analysis).
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.
Failure to Object to Judicial Notice of Sunset
Petitioner contends Trial Counsel was ineffective when he failed to object to the trial court taking judicial notice of the time the sun set on December 13, 2013, the date of the crime. Respondent argues this matter was not preserved and, alternatively, that Petitioner cannot show any prejudice resulted from this alleged error because numerous witnesses, including Petitioner, testified that it was dark when the purse was stolen. (ECF No. 16 at 17). As discussed above, this issue is properly preserved. However, the court agrees Petitioner fails to show the PCR court unreasonably found no prejudice resulted from Trial Counsel's lack of objection.
The State charged Petitioner with first-degree burglary and was thus required to show that Petitioner unlawfully entered the victim's home without consent and with the intent to commit a crime and that he did so at night. See S.C. Code Ann. § 16-11-311(A); ECF No. 16-3 at 192 (indictment listing “during the night time” as the only aggravating factor).
At trial, the State submitted into evidence a document from the U.S. Naval Observatory Astronomical Application Department that listed the times for sunrise, twilight, and sunset on December 13, 2013. (ECF No. 16-1 at 181-82). The State asked the court to take judicial notice of the time of sunset on that date and Trial Counsel stated he did not object. (Id. at 181).
In testimony immediately prior to this exchange, the victim, Ms. Dianne Williams, indicated the burglary took place shortly before 8:00 at night but that “[i]t wasn't quite dark.” (Id. at 158-59, 164,178). Ms. Williams stated further, “[i]t was like middle daylight look a little bit. You know how the evening go down?” (Id. at 159).
After the trial court accepted the State's exhibit and took judicial notice of the time the sun set on December 13, the responding officer, Jared Goldman, testified that he received the 911 call at 8:04 p.m. and arrived at Ms. Williams's house at 8:05 p.m. (Id. at 184). He stated Ms. Williams's purse had been taken “right before” he got there and that it was dark when he arrived at the house. (Id. at 186-87). Goldman further testified that the sun set that day at 5:19 p.m. and that the last possible time it could have been considered daytime was 5:46 p.m. (Id. at 187).
The victim's husband, James Williams, testified that he was home when Ms. Williams's purse was taken but in another room. (ECF No. 16-1 at 220). He heard a door slam and Ms. Williams yelling for “Ronnie Moe” to put down her purse. (Id.) By the time he reached the front room of the house, the thief was gone. (Id.) Mr. Williams testified that he looked out the door but could not see the person who took the purse because “it was dark.” (Id.) Mr. Williams confirmed three more times that it was dark when he looked out the door right after his wife's purse had been taken. (Id. at 220, 222). In addition, during Petitioner's own testimony, he indicated it was dark that night by “a little bit after seven” and “good and dark” by 8:00. (ECF No. 16-2 at 42, 46).
At the end of the case, Trial Counsel requested a jury charge on second-degree burglary based on Ms. Williams's testimony that it was light out when the purse was stolen. (Id. at 88, 89). The State argued the charge was not supported because the defense's argument was that Petitioner did not commit the crime, not that the crime had not occurred at night, the defense had not presented evidence that it was not nighttime, all other testimony indicated it was nighttime, and the court had taken judicial notice of the fact that it was nighttime. (Id. at 88-89).
The trial court recalled Ms. Williams testified that it was “around a quarter to eight” and “not quite dark.” (Id. at 89). The court found the evidence did not support a charge on burglary second, reasoning:
The State must prove beyond a reasonable doubt that the Defendant entered or remained in the dwelling in the nighttime. Nighttime is the period between sunset and sunrise during which there is not enough daylight to recognize a person's face except by artificial light or moonlight. The uncontroverted testimony as far as the time is concerned is a quarter to eight, 8:00. The response time is within a minute, 8:03 p.m., 8:04 p.m. It just occurred. There is the U.S. Naval Observatory Astronomical Survey that shows when civil twilight was, when sunset was on the 13th. I don't think the comment not quite dark would exclude that period of time between sunset and sunrise. It's a quarter to eight. It clearly had been several hours where there had been sunset.(Id. at 90).
At the PCR hearing, Trial Counsel agreed that he did not specifically object to the trial judge taking judicial notice that the crime occurred at night and that precluded the issue from being argued on direct appeal. (ECF No. 16-3 at 124). He could not recall a reason he would not have objected but testified he believed a judge could take judicial notice of what time the sun went down. (Id. at 129).
Relying on South Carolina evidentiary rules, the PCR court explained that a “trial court must take judicial notice” of a fact that is capable of accurate and ready determination by resort to resources whose accuracy cannot reasonably be questioned and a party requests the court take judicial notice of the fact and supplies the necessary information. (ECF No. 16-3 at 184-85 (citing Rule 201(b)-(d), SCRE)). The PCR court found the time at which the sun set on December 13, 2013 was capable of accurate and ready determination from reliable resources and “was a fact of which the trial court could take judicial notice.” (Id. at 185). The court found Trial Counsel's failure “to object to the judicial notice of an element of the crime . . . may have been in error” but that Petitioner failed to establish any resulting prejudice in light of the other properly admitted evidence and testimony that the crime took place around 8:00 p.m. and that it was dark at that time. (Id.)
Prior to the PCR court's order, the South Carolina Court of Appeals found “[t]he trial court properly refused to charge second-degree burglary because there is no evidence from which the jury could infer it was daytime when the burglary occurred.” (ECF No. 16-3 at 22). The court relied on trial testimony from Ms. Williams, Mr. Williams, and Goldman and also the U.S. Naval Observatory document, which indicated the times for sunset and twilight on December 13, 2013 were 5:19 p.m and 5:49 p.m, respectively. (Id.).
Petitioner argues that (1) the trial court could not properly take judicial notice of an element of the charged offense and (2) he suffered prejudice because, had Trial Counsel objected, the jury could have been instructed on the lesser-included offense of second-degree burglary. (ECF No. 1-1 at 11-14). Petitioner also asserts the PCR court unreasonably determined that Ms. Williams was “steadfast” that the crime occurred around 8:00. (Id. at 12).
As an initial matter, both the PCR court and South Carolina Court of Appeals found the trial court's taking judicial notice of the time the sun set on the date of the crime was not improper. (See ECF No. 16-3 at 22, 184-85). Both courts based their findings on South Carolina state evidentiary law. (See id.). “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Rather, “[i]n conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Id. at 68. Thus, this court will not endeavor to reconsider the state courts' determination that the trial court did not err in taking judicial notice that the sun had set by 8:00 p.m. on the date of the crime.
Nor has Petitioner shown by clear and convincing evidence that the PCR court unreasonably found Ms. Williams was “steadfast” that her purse was taken about 8:00 at night. As discussed above, Ms. Williams's testimony was somewhat ambiguous as to whether it was dark at the time, or how dark it was. However, she repeatedly testified that the crime occurred “at 8:00” or “about a quarter till” 8:00. (ECF No. 16-1 at 158-59). This time was confirmed by the other witnesses and Petitioner has never presented evidence suggesting the crime took place earlier in the day.
The question properly before this court is whether the PCR court reasonably determined that Trial Counsel's failure to object under these circumstances did not prejudice Petitioner. To show prejudice, Petitioner had to demonstrate to the PCR court that, had Trial Counsel objected, there was a reasonable probability that the result of the trial would have been different. See Strickland, 466 U.S. at 694. Petitioner argues he was prejudiced because the trial court's decision to take judicial notice resulted in the court's denial of Trial Counsel's request for a charge on second-degree burglary.
However, the trial court denied counsel's request for a second-degree burglary charge based on the uncontroverted testimony that the burglary occurred around “a quarter to eight, 8:00,” the U.S. Naval Observatory Astronomical Survey showing the sun set hours earlier, and the court's interpretation of Ms. Williams's testimony as not “exclud[ing] that period of time between sunset and sunrise.” (ECF No. 16-2 at 90). Thus, despite taking judicial notice of the U.S. Naval Observatory evidence, the trial court's ruling was based on the entirety of the evidence before it and the defense had not offered any evidence indicating the crime did not occur around 8:00 p.m. or that the sun had not set by that time. Nor did Petitioner actually contest those facts at trial or PCR. Accordingly, the PCR court reasonably found that Petitioner failed to show a reasonable probability that if Trial Counsel had objected to the court's taking judicial notice, the trial court would not have denied counsel's request for a charge on second-degree burglary or the jury would not have convicted Petitioner of first-degree burglary based on the evidence the crime occurred at 8:00 p.m. and that it was dark at the time.
For these reasons, Petitioner fails to show the PCR court's denial of this claim was unreasonable in either fact or law and the court recommends granting Respondent's motion for summary judgment as to this issue.
Inadequate Pretrial Investigation
Petitioner also asserts Trial Counsel conducted an inadequate pretrial investigation. (ECF No. 1-1 at 3). As discussed above, this claim is procedurally defaulted because it was not presented to the State's highest court in Petitioner's petition for a writ of certiorari. However, the court addresses the merits here because Respondent did not assert this particular claim is procedurally barred.
The petition does not identify specific acts or omissions by Trial Counsel related to this claim. It appears from the cases Petitioner relies on that he is reasserting his PCR allegation that Trial Counsel failed to investigate and call certain witnesses at trial. (See, e.g., ECF No. 1-1 at 3, 17).
At the PCR evidentiary hearing, Trial Counsel testified his pretrial preparations involved meeting with Petitioner two or three times to discuss the discovery and a plea offer that had been made. (ECF No. 16-3 at 119-20, 126). In addition, he hired an investigator and spoke with some of the witnesses. (Id. at 120, 129-30). Trial Counsel could not remember if Petitioner had given him a list of witnesses to talk to but testified that, if Petitioner had given him a list, he would not have necessarily spoken to everyone on that list. (Id. at 130). Rather, Trial Counsel's standard practice was to vet potential witnesses and only send his investigator to speak to people who actually witnessed the crime or would otherwise have information that could further the case. (Id.) Trial Counsel stated if anyone he or his investigator had interviewed had provided beneficial information he would have called them at trial. (Id. at 131). Trial Counsel did admit, however, that he had not interviewed Quinton Samuels prior to trial or prior to calling him at trial. (Id. at 120-21).
Other than Petitioner, Quinton Samuels was the only defense witness. Petitioner attempted to admit evidence of third-party guilt suggesting Mr. Samuels had committed the crime. (See ECF No. 16-1 at 278-16-2 at 6). Petitioner proffered testimony to that effect and the court found it did not meet the standards of admissible third-party-guilt evidence. (Id.) The next day, Quinton Samuels happened to attend the trial and Petitioner insisted Trial Counsel call him. (See ECF No. 16-3 at 131-32).
The PCR court found Trial Counsel's testimony credible and Petitioner's testimony not credible. (ECF No. 16-3 at 181). The court further found Trial Counsel “investigated the witnesses provided to him and employed a valid trial strategy in choosing not to call them as witnesses, particularly in light of the fact they could not provide any beneficial information about the crime.” (Id.) In addition, the PCR court found Petitioner failed to show prejudice because the additional witnesses did not testify at the PCR hearing. (Id.)
“[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)). Petitioner has not demonstrated any error in the PCR court's credibility determination and this court is thus bound by the conclusion that Trial Counsel investigated the witnesses he was made aware of. Petitioner also has not shown the PCR court unreasonably applied clearly established federal law. Rather, the PCR court correctly applied Strickland by granting deference to Trial Counsel's tactical decisions regarding the presentation of evidence. See Strickland, 466 U.S. at 690 (“Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable”).
And, finally, Petitioner has not shown the PCR court's prejudice determination to be unreasonable in either law or fact. Petitioner did not present testimony at PCR from the witnesses he alleged Trial Counsel should have presented nor did he explain how testimony from those witnesses or further investigation by counsel could have changed the outcome of his trial. Nor has Petitioner presented this court with any argument to that effect. 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. For these reasons, the court recommends granting Respondent's motion for summary judgment as to this claim.
Ground Two
In Ground Two, Petitioner alleges prosecutorial misconduct based on comments made during opening and closing arguments. (ECF No. 1 at 7, 1-1 at 5, 19). Respondent contends this ground is procedurally defaulted. (ECF No. 16 at 16-17). The court agrees.
As stated above, it is unclear whether this procedural default argument was meant to apply to Ground One, Ground Two, or both. However, the substance of the argument concerns reasons the claim was not preserved for review by the South Carolina Court of Appeals on direct appeal and is thus responsive to Ground Two. (See ECF No. 16 at 16).
Petitioner raised this claim on direct appeal and the South Carolina Court of Appeals found it was not preserved because Petitioner did not contemporaneously object to the comments at trial. (ECF No. 16-3 at 22-23). The state appellate court thus expressly relied on a state procedural rule to bar review of Petitioner's claim. See Harris v. Reed, 489 U.S. 255, 261-62 (1989) (noting a state court must have actually relied upon the procedural rule as an independent basis for dismissal for the claim to be barred in federal habeas).
“Under the well-established doctrine of procedural default, a federal habeas court may not review a claim that a state court has found to be clearly and expressly defaulted under an independent and adequate state procedural rule.” Weeks v. Angelone, 176 F.3d 249, 269 (4th Cir. 1999); see also Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008) (holding a federal habeas court should not review the merits of claims that would be found to be procedurally defaulted under independent and adequate state procedural rules). A state procedural rule is considered “adequate if it is regularly or consistently applied by the state courts, and it is independent if it does not depend on a federal constitutional ruling.” McNeill v. Polk, 476 F.3d 206, 211 (4th Cir. 2007) (citations omitted). “South Carolina's contemporaneous objection rule does not implicate the federal constitution, and it is, therefore, independent.” Richardson v. South Carolina, No. 3:09-1107-MBS-JRM, 2010 WL 1346302, at *9 (D.S.C. Feb. 12, 2010), report and recommendation adopted by 2010 WL 1346420 (D.S.C. Mar. 31, 2010). In addition, a review of South Carolina law indicates state courts consistently apply the contemporaneous objection rule. See e.g., In re McCracken, 551 S.E.2d 235 (S.C. 2001); State v. McHoney, 544 S.E.2d 30 (S.C. 2001); State v. King, 514 S.E.2d 578 (S.C. 1999).
A federal habeas court can disregard an independent and adequate state procedural rule only if the petitioner demonstrates cause and prejudice for the default or that declining to consider the merits of the claim would result in a fundamental miscarriage of justice. See George v. Angelone, 100 F.3d 353, 364 (4th Cir. 1996) (citing Gray v. Netherland, 518 U.S. 152, 162 (1996)); Murray v. Carrier, 477 U.S. 478, 495-96 (1986). Petitioner appears to allege cause and prejudice due to ineffective assistance of appellate counsel. (See ECF No. 32 at 14). However, Petitioner's appellate counsel properly presented this issue to the Court of Appeals.
Petitioner also maintains his innocence and thus claims a miscarriage of justice could result if he is not granted relief. (See ECF No. 32-1 (affidavit from Petitioner asserting he did not steal Ms. Williams's purse)); see also Matthews v. Evatt, 105 F.3d 907, 916 (4th Cir. 1997) (explaining that the miscarriage of justice exception is only available for those who are actually innocent). “When the alleged error is unrelated to innocence, and when the defendant was represented by competent counsel, had a full and fair opportunity to press his claim in the state system, and yet failed to do so in violation of a legitimate rule of procedure, [his] burden has not been carried.” Smith v. Murray, 477 U.S. 527, 539 (1986). Plaintiff's claim that the solicitor made inappropriate comments during opening and closing arguments is not related to whether Petitioner is innocent. Petitioner had an opportunity to fully present his claim in the state system and was represented by counsel, whom the courts have found competent. Accordingly, Petitioner fails to show a fundamental miscarriage of justice or other reason to set aside the procedural bar and the court recommends granting Respondent's motion for summary judgment as to Ground Two.
Grounds Three & Four
In Ground Three, Petitioner contends the trial court erred by refusing to instruct the jury on the lesser-included offense of second-degree burglary. (ECF No. 1 at 8). In Ground Four, Petitioner alleges the trial court erred when it refused to admit evidence of third-party guilt. (Id. at 10). Both of these issues were raised on direct appeal and ruled on by the South Carolina Court of Appeals. (ECF No. 16-3 at 19-20, 22). The Court of Appeals affirmed the trial court's evidentiary rulings based on its interpretation of relevant state evidentiary law. (Id.) Thus, as Respondent asserts, these issues are purely state law questions and are not cognizable on federal habeas review. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (“it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts”); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“federal habeas corpus relief does not lie for errors of state law”). For this reason, the court recommends granting Respondent's motion for summary judgment as to Grounds Three and Four.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's motion for summary judgment (ECF No. 17) be GRANTED in its ENTIRETY, and the petition be dismissed.
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).