Opinion
CA 9:23-cv-00089-MGL-MHC
11-15-2023
Terrell McCoy, Petitioner, v. Warden John Palmer, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Petitioner Terrell McCoy (“Petitioner”), a state prisoner proceeding pro se, seeks habeas relief pursuant to 28 U.S.C. § 2254. Respondent Warden John Palmer (“Respondent”) filed a Motion for Summary Judgment, along with a Return and Memorandum (“Motion”). ECF Nos. 24, 25. Petitioner filed a Response in Opposition. ECF No. 50. The matter is ripe for review.
Petitioner has also filed various motions, including a Motion for Bail, Motion to Produce, and a Rule 9 Motion. See ECF Nos. 18, 33, 34. Because the undersigned recommends denying Petitioner's Habeas Petition, these Motions should be denied as moot.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the assigned district judge referred the Motion to the undersigned for a report and recommendation. For the reasons that follow, the Court recommends that Respondent's Motion be granted and the Petition be dismissed with prejudice.
I. BACKGROUND
The procedural history as described by Respondent has not been disputed by Petitioner in his Response and is set forth as follows. On July 11, 2006, a Charleston County grand jury returned a true-billed indictment against Petitioner for the murder of Antwan Byrant. ECF No. 24-1. The State originally called the case to trial on July 15, 2008; however, a mistrial was declared when the jury was unable to reach a verdict. ECF No. 24-2 at 2.
On January 27, 2009, prior to going forward with the second trial, Petitioner moved to relieve Lori Proctor (“Trial Counsel”) and represent himself. ECF No. 24-2. The Honorable R. Markley Dennis heard the motion, gave Petitioner a Faretta warning, and ultimately granted the motion. Petitioner also requested that Trial Counsel be available as “stand-by” counsel. ECF No. 24-2 at 19-21. Judge Dennis issued two orders that allowed Petitioner to proceed pro se, and relieved Trial Counsel and appointed her as stand-by counsel. ECF No. 24-3 at 4-5. As part of the order relieving Trial Counsel of representing Petitioner, Judge Dennis ordered Trial Counsel be “relieved of Post Conviction relief Actions after 12:00 P.M. January 27, 2009.” ECF No. 24-3 at 4.
Faretta v. California, 422 U.S. 806 (1975). A Faretta hearing “seeks to determine whether the accused, who is seeking to manage his own defense, understands the consequences of waiving his Sixth Amendment right to counsel and is relinquishing that right knowingly and intelligently.” United States v. Cohen, 888 F.3d 667, 672 n.2 (4th Cir. 2018).
Petitioner's second trial was held February 2-6, 2009, before the Honorable Roger M. Young (“Trial Judge”). The Trial Judge again questioned Petitioner about his decision to represent himself, and Petitioner responded that he still wanted to do so. ECF No. 24-3 at 12. Trial Counsel remained as stand-by counsel. ECF No. 24 at 2. At the conclusion of trial, the jury convicted Petitioner as charged. ECF No. 24 at 2.
Petitioner, with the aid of stand-by Trial Counsel, timely appealed. ECF No. 24-6 at 11823. Petitioner's Appellate Counsel filed a Final Brief of Appellant in the South Carolina Court of Appeals on July 6, 2010, and raised the following issue:
Whether the court erred by allowing appellant to represent himself during his murder trial where the record did not establish that appellant was adequately warned of the dangers and disadvantages of self-representation and this record did
not establish that appellant made his choice to represent himself with “eyes open” where the colloquy with the court revealed that it was more the court's hope that appellant would not represent himself because a lawyer could do a better job and the record in this case does not reveal a knowing and intelligent waiver?ECF No. 24-6 at 127. The Court of Appeals, without holding an oral argument, issued a per curiam unpublished opinion on October 26, 2011, affirming the conviction and sentence. ECF No. 24-6 at 169-70. Appellate Counsel filed a petition for rehearing, which was denied by the Court of Appeals. ECF No. 24-6 at 171-78. Appellant Counsel filed a petition for writ of certiorari in the Supreme Court of South Carolina, but the Supreme Court denied the petition. See ECF No. 24-11.
On April 4, 2013, Petitioner filed an application for post-conviction relief (“PCR”). ECF No. 24-6 at 179-95. Petitioner presented multiple allegations summarized by Respondent as follows:
1. Conviction is in violation of U.S. Constitution
a. Due Process Violation- Malice instruction given by the trial judge was similar to malice charge given in Yates v. Evatt.
2. Ineffective Assistance of Counsel
a. Trial counsel gave Applicant erroneous legal advice leading to Applicant's self-representation.
b. Trial counsel failed to object to Judge Jefferson declaring a hung jury during the Applicant's first trial when the jury did not decide whether the Applicant was innocent or guilty.
c. Trial counsel failed to send the Applicant to have a mental health evaluation after suggested by Judge Jefferson that the Applicant may suffer from bi-polar.
3. Ineffective Assistance of Appellate Counsel
a. Failure to raise issue that trial judge erred by not instructing the jury with voluntary manslaughter when there was evidence supporting the requested charge.
b. Failure to raise whether trial judge erred by not finding a Batson violation during jury selection.
c. Failure to raise whether trial judge erred by denying the Applicant's motion to dismiss the indictment for the State's violation of his speedy trial right when the issue was raised and ruled on.
d. Failure to raise the issue of whether the trial judge erred in ruling the State's witness identification of Applicant was not unduly suggestive.
e. Failure to raise the issue of whether the trial judge erred by allowing Brandon Cuttino's statement into evidence.
f. Failure to raise the trial court erred by denying the Applicant's motion to dismiss indictment on grounds that exculpatory evidence was withheld before trial and that evidence was tampered with.
g. Failure to raise the trial court erred by denying Applicant's motion to allow unavailable witness, Cierra Witness, statement into evidence.
h. Failure to raise the trial court erred by ruling Applicant was not allowed to comment on the destruction of evidence during his opening statement.
i. Failure to raise the issue whether Judge Young abused his discretion by not warning Detective Angela Bunker about committing perjury at trial when the Applicant raised the issue outside the presence of the jury.
4. Subject Matter Jurisdiction
a. Fraudulent indictment because grand jury never empaneled and court reporter not present.
5. Prosecutorial Misconduct
a. Prosecutor failed to correct false testimony given by Detective Angela Bunker concerning the collection of DNA evidence for testing.
b. Prosecutor presented inconsistent theories which were withheld from Applicant during the second trial.
c. Prosecutor vouched for witness C[o]rinda Williams, expressing and implying her personal opinion during closing argument.
d. Police failure to preserve potentially useful evidence was in bad faith in violation of the fundamental fairness of the due process clause of the U.S. Constitution.
6. Double Jeopardy a. The first trial jury was impaneled, heard prosecutor's case, and prosecutor failed to prove his case beyond a reasonable doubt.
7. Newly Discovered Evidence a. Evaluated by mental health counselor at SCDC and it's been discovered that the Applicant suffers from mental illnesses such as bi-polar and depression.
b. Applicant did not finish school.
c. Applicant's mother suffers from mental illness.
8. Actual innocenceECF No. 24 at 4-6 (errors in original).
The State moved to dismiss claims that were not cognizable or were meritless. In particular, the State moved to dismiss the ineffective assistance of Trial Counsel claims as Petitioner opted to represent himself during his second trial. ECF No. 24-8 at 10-11.
On September 9, 2015, a motions hearing was held before the Honorable Larry B. Hyman. ECF No. 24-8 at 35. The State moved for summary judgment on all claims of ineffective assistance of counsel. ECF No. 24-8 at 39-40. Judge Hyman-noting that Judge Dennis had previously “relieved” former Trial Counsel “of postconviction relief actions” as part of the order granting Petitioner the right to proceed pro se-granted the State's motion as to Trial Counsel. ECF No. 24-8 at 48, 52-53; see ECF No. 24-3 at 4-5. However, Judge Hyman allowed the claims against Appellate Counsel to continue. ECF No. 24-8 at 53.
On December 4, 2015, Petitioner's PCR Counsel filed an amended application and raised the following issues:
[1]. Applicant's original attorney provided ineffective assistance of counsel in failing to obtain evidence and witnesses for trial prior to being relieved as counsel.
[2]. The State engaged in prosecutorial misconduct depriving the Applicant of a fair trial in violation of his Constitutional rights by failing to disclose evidence, destroying evidence and submitting inappropriate testimonial evidence.
[3]. Applicant's appellate attorney provided ineffective assistance of counsel in failing to argue relevant grounds for appeal.ECF No. 24-8 at 58.
On December 14, 2015, an evidentiary hearing was held before the Honorable Deadra Jefferson (“PCR Judge”). ECF No. 24-8 at 59. The PCR Judge heard testimony from Appellate Counsel and Petitioner. ECF No. 24-8 at 79-126. After hearing arguments from PCR Counsel, the PCR Judge denied relief, placed her findings on the record, and directed the State to prepare a proposed order. ECF No. 24-8 at 135-41.
On May 6, 2016, the PCR Judge issued a written order denying relief. ECF No. 24-8 at
151-62. PCR Counsel filed a Rule 59, SCRCP, motion complaining that the written order did not contain sufficient findings of fact and conclusions of law on each issue raised. The PCR Judge denied the Rule 59(e) motion on February 10, 2017. ECF No. 24-8 at 192-93.
PCR Counsel appealed, and on February 1, 2019, the Supreme Court of South Carolina found that the PCR Judge's order did not address all the PCR issues and remanded the case back to the PCR Judge for an order that addressed all the PCR issues. ECF No. 24-8 at 206-08.
On June 14, 2019, the PCR Judge issued an amended order of dismissal and an amended order denying Rule 59(e) motion. ECF No. 24-8 at 209-42. PCR Counsel filed a Rule 59(e) motion to alter or amend the amended order, which was denied. ECF No. 24-8 at 243-57.
PCR Counsel appealed. Ultimately, on August 25, 2020, PCR Counsel filed an amended petition for a writ of certiorari, raising the following issues:
1. Did the Circuit Court err in granting Summary Judgement wherein Petitioner was barred from going forward with his ineffective assistance of counsel action (PCR) against Petitioner's trial counsel Lorelle Proctor when Petitioner was given erroneous advice regarding self-representation and the consequences of proceeding pro se at his trial on January 27, 2009?
2. Did the circuit court err in refusing to allow petitioner to represent himself during the PCR hearing hearing [sic] held on December 14, 2015 when PCR counsel refused to admit petitioners prepared memorandum of law, failed to admit as an exhibit trial counsel Lorelle Proctor's Rule 5 discovery request, and failed to subpoena trial counsel to the PCR hearing to testify that she had requested discovery, more specifically the 911 tape on several occasions, all before the 911 tape had been destroyed by North Charleston Police department such that a hearing should have been held pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct., 45 L.Ed 562 (1975)?
3. Did the circuit judge err in finding that Petitioner's appellate counsel, Robert Dudek, was not ineffective when appellate counsel only raised one issue in petitioner's appellate brief, the issue of self-representation, when in fact several viable substantive issues had been raised and the issues had been contemporaneously preserved by Petitioner during his trial and petitioner
repeatedly discussed the appellate issues that he had preserved during the trial with Appellate counsel?
4. Did the circuit judge err in finding that petitioner's appellate counsel was not ineffective when appellate counsel did not raise a violation of Maryland v. Brady in violation of South Carolina Rules of Criminal Procedure Rule 5 in Petitioner's Appellate brief wherein the State violated Brady and did not provide Petitioner a 911 tape that was in the possession of North Charleston Police Department and the existence of which was imputed to the Charleston County Solicitor handling Petitioner's prosecution that was material and exculpatory for impeachment purposes in Petitioner's defense and the Brady violation was prejudicial to Petitioner's case because the outcome of Petitioner's presentation of his defense would have been different if the 911 tape had been provided to Petitioner when Petitioner raised the issue during his trial and preserved the issue for appellate review?
5. Did the circuit judge err in finding that petitioner's appellate counsel was not ineffective when appellate counsel did not raise a violation of Petitioner's due process right to a fair trial under the Fifth Amendment of the U.S. Constitution, Article I Section III of the South Carolina State Constitution when the trial judge sustained the State's objection to the 911 Dispatchers log prejudicing Petitioner and preventing him from being able to impeach the State's primary witness and present his defense that the 911 caller indicated that the facts of the incident could not have happened as the State's witness Corinda Snowden testified to the jury thereby impeaching her testimony and exonerating Petitioner in the case when Petitioner raised the issue during his trial and preserved the issue for appellate review?
6. Did the circuit court err in finding that Petitioner's appellate counsel was not ineffective when appellate counsel did not a raise a Batson v. Kentucky issue when Petitioner argued that the State's use of preemptory challenges to strike two jurors of the same racial composition of Petitioner, but did not use peremptory challenges to strike two Caucasian jurors similarly situated and that the State's justification for striking the African American jurors was not, in fact, race neutral when Petitioner raised the issue during his trial and preserved the issue for appellate review?
7. Did the circuit court err in finding that Petitioner's appellate counsel was not ineffective when appellate counsel did not raise the issue of bad faith on the part of the State and North Charleston Police department under Arizona v. Youngblood when Petitioner raised and preserved the issue during trial that North Charleston police officer Angela Bunker had failed to preserve valuable exculpatory evidence in the form of DNA from blood evidence found at the scene of the incident?
8. Did the Circuit court err in finding that Petitioner's appellate counsel was not ineffective in raising the issue of a prejudicial witness identification when Petitioner objected to the witness identification during her testimony and moved to exclude her testimony raising the issue and preserving the issue for appellate review?
9. Did the circuit court err in finding petitioners appellate counsel was not ineffective when appellate counsel did not raise the issue of the denial of petitioners request for a voluntary manslaughter charge when there was, in fact, evidence in the record that factually support the charge being given to the jury when Petitioner raised the issue during his trial and preserved the issue for appellate review?ECF No. 24-32 at 5-6 (errors in original).
Pursuant to Rule 243(1) of the South Carolina Appellate Court Rules, the Supreme Court of South Carolina transferred the pending appeal to the South Carolina Court of Appeals for disposition. ECF No. 24-34. On May 18, 2022, the South Carolina Court of Appeals denied the petition. ECF No. 24-37.
On June 2, 2022, PCR Counsel filed a petition for rehearing. ECF No. 24-38. The Court of Appeals denied the petition for rehearing on September 8, 2022. ECF No. 24-42. The Court of Appeals issued the remittitur on October 20, 2022, which was filed with the Charleston County Clerk of Court on October 24, 2022. ECF Nos. 24-44, 24-45.
Petitioner attempted to relieve counsel and seek further review from the Supreme Court of South Carolina; however, on October 4, 2022, his petition was denied as the Supreme Court will not review denials of petitions in PCR appeals. ECF No. 24-43.
On January 9, 2023, Petitioner filed this § 2254 Petition. ECF No. 1. Petitioner raises the following grounds for relief:
Ground One: Trial counsel ineffective under Strickland v. Washington for given Petitioner erroneous advice to waive counsel during a jail visit at the Charleston County Detention Center. 6th Amendment
Ground Two: Ineffective assistance of appellate counsel failing to raise preserved Brady v. Maryland claims which is clearly established law by U.S. Supreme Court.
Ground Three: Appellate counsel ineffective for failing to raise trial counsel was ineffective for given Petitioner erroneous advice during direct appeal.
Ground Four: Appellate counsel failed to raise Batson v. Kentucky claims. Appellate counsel ineffective which was unreasonable to clearly established federal law.
Ground Five: Appellate counsel ineffective for failing to raise police failure to preserve DNA was in bad faith under Arizona v. YoungBlood which was unreasonable to clearly established federal law as determined by the U.S. Supreme Court.
Ground Six: Appellate counsel ineffective under Strickland v. Washington for failing to raise preserved issue that the identification of Petitioner was unduly suggestive under Neil v. Biggers which was unreasonable to clearly established federal law as determined by the U.S. Supreme Court.
Ground Seven: Actual Innocence
Ground Eight: Does the timly filing of Post Conviction Relief application toll the 90 day time to file a petition for Certiorari in the United States Supreme Court under 2254(d)(2)?ECF No. 11 at 4-22 (errors in original).
II. STANDARDS OF REVIEW
A. Summary Judgment Standard
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Id. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
B. Federal Habeas Review under 28 U.S.C. § 2254
Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, in considering Petitioner's claims, the Court's review is limited by the deferential standard of review set forth in 28 U.S.C. § 2254(d). See Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). 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.28 U.S.C. § 2254(d); see also Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (explaining federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it “resulted in a decision that was contrary to, or involved an unreasonable application of, 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”). A state court's decision is contrary to clearly established federal law if that court “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Evans, 220 F.3d at 312 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). A state court decision unreasonably applies clearly established federal law if the state court “identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. (quoting Williams, 529 U.S. at 413).
Because “review under § 2254(d)(1) focuses on what a state court knew and did,” this Court measures the reasonableness of the state court's decision based on the information in the record before the state court. Valentino v. Clarke, 972 F.3d 560, 575 (4th Cir. 2020) (quoting Cullen v. Pinholster, 563 U.S. 170, 182 (2011)). “Likewise, § 2254(d)(2) provides for a limited review of factual determinations in light of the evidence presented in the State court proceeding[] [thus,] [t]his backward-looking language similarly requires an examination of the state-court decision at the time it was made.” Id. (citation and internal quotation marks omitted).
Accordingly, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 410. Further, factual findings “made by a State court shall be presumed to be correct,” and Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
III. DISCUSSION
Respondent argues the Petition should be dismissed for two main reasons. First, Respondent maintains that Grounds One, Three, Seven, and Eight are barred for procedural reasons. Second, as to the remaining Grounds, Respondent generally argues that Petitioner failed to show ineffective assistance of counsel at any level of the state court proceedings. For the reasons that follow, the Court agrees with Respondent.
A. Procedural Requirements for Habeas Petitions
A federal court considering a § 2254 petition “generally may consider a state prisoner's federal claim only if he has first presented that claim to the state court in accordance with state procedures.” Shinn v. Ramirez, 142 S.Ct. 1718, 1727 (2022) (emphasis added). That is, before seeking habeas relief in federal court, a petitioner must first exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). Thus, when presented with an application for habeas relief, the federal court's first inquiry is determining whether the claim raised in the petition was “adjudicated on the merits” by the state court. 28 U.S.C. § 2254(d). If a prisoner has properly raised his claims before the state court in accordance with state procedures, he has met the exhaustion requirement and a federal court may hear those claims.
In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). If the PCR court fails to address a claim as is required by S.C. Code Ann. § 17-2780, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will generally result in the application of a procedural bar by the South Carolina Supreme Court. See Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009) (discussing procedural bar and noting the “general rule” in South Carolina is that where a party fails to file a Rule 59(e) motion, the argument is forfeited). Furthermore, strict time deadlines govern direct appeal and the filing of a PCR application in the South Carolina courts. A PCR application must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45. In South Carolina, a claim is not procedurally barred from review in this Court for failure to pursue review in the South Carolina. Supreme Court after an adverse decision in the Court of Appeals. See In re Exhaustion of State Remedies in Crim. & Post-Conviction Relief Cases, 321 S.C. 563, 564, 471 S.E.2d 454 (S.C. 1990) (“[W]hen the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies.”).
However, when a state prisoner has failed to properly raise his federal claims in accordance with state procedural rules, and the state court would dismiss the claim on that basis, the claim is “procedurally defaulted.” Shinn, 142 S.Ct. at 1727-28. Under the doctrine of procedural default-also known as procedural bar-federal courts generally decline to consider those claims not presented to the state court in accordance with the state's procedural rules. See id. at 1732; Mahdi v. Stirling, 20 F.4th 846, 892 (4th Cir. 2021). This is because allowing a state prisoner to simply bypass a state's procedural requirements on their way to federal court would render the exhaustion requirement meaningless. See Shinn, 142 S.Ct. at 1732. As the Supreme Court recently explained, exhaustion and procedural default promote our dual system of federal and state judicial comity: “Exhaustion affords States an initial opportunity to pass upon and correct alleged violations of prisoners federal rights, and procedural default protects against the significant harm to the States that results from the failure of federal courts to respect state procedural rules.” Id. (internal citations and quotation marks omitted). Thus, where the state court has not had the opportunity to apply its own procedural bar, the federal court will nevertheless bar the claim where application of the bar is clear. Teague v. Lane, 489 U.S. 288, 297-98 (1989).
In these instances where a state court would dismiss such claims for their procedural failures, those claims are “technically exhausted” in the habeas context, because state court remedies are “‘exhausted' when they are no longer available, regardless of the reason for their unavailability.” Woodford v. Ngo, 548 U.S. 81, 92-93 (2006); see also Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), overruled on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011); Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).
The South Carolina Supreme Court will refuse to consider claims raised in an appeal that could have been raised at an earlier time. See, e.g., Evans v. State, 611 S.E.2d 510, 515 (S.C. 2005) (noting an “issue or argument which is neither raised at PCR hearing nor ruled upon by the PCR court is procedurally barred from appellate review” (citation omitted)). Further, if a prisoner has failed to file a direct appeal or a PCR application and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar.
Notwithstanding the foregoing, “a federal court is not required to automatically deny unexhausted or procedurally defaulted claims.” Shinn, 142 S.Ct. at 1732. Federal courts may consider procedurally defaulted claims in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or by “prov[ing] that failure to consider the claims will result in a fundamental miscarriage of justice.” Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008); see also Farabee v. Clarke, 967 F.3d 380, 395 (4th Cir. 2020).
“To establish cause, the petitioner must show that some objective factor external to the defense impeded counsel's efforts' to raise the claim in state court at the appropriate time, or that the factual or legal basis for the claim was not reasonably available [] at the time of the state proceeding.” Mahdi, 20 F.4th at 893 (internal citations and quotation marks omitted). To establish prejudice, the petitioner “must show not merely a substantial federal claim, such that the errors at [] trial created a possibility of prejudice, but rather that the constitutional violation worked to his actual and substantial disadvantage.” Shinn, 142 S.Ct. at 1733 (emphasis in original) (citation and internal quotation marks omitted).
With the above in mind, the undersigned turns to the Grounds presented in the Petition.
1. Ground One
Petitioner's Ground One alleges that Trial Counsel was ineffective for giving Petitioner erroneous advice regarding self-representation. Respondent argues that Ground One is procedurally barred because it “was not heard on the merits” during Petitioner's state PCR action. ECF No. 24 at 27. The Court disagrees.
On May 6, 2016, the PCR Judge issued a written order denying relief. ECF No. 24-8 at 151-62. Notably, in this order, the PCR Judge did not address Petitioner's allegations as to Trial Counsel's allegedly erroneous advice on self-representation. PCR Counsel filed a Rule 59, SCRCP, motion complaining that the written order did not contain sufficient findings of fact and conclusions of law on each issue raised, but the PCR Judge denied the Rule 59(e) motion. ECF No. 24-8 at 192-93.
However, after PCR Counsel appealed, the Supreme Court of South Carolina agreed that the PCR Judge's order did not address all the PCR issues and remanded the case to the PCR Judge for an order that addressed all the PCR issues. ECF No. 24-8 at 206-08. Consequently, the PCR Judge issued an amended order of dismissal and an amended order denying the Rule 59(e) motion. ECF No. 24-8 at 209-42. Notably, in these amended orders, the PCR Judge addressed Petitioner's claims of ineffective assistance of Trial Counsel. ECF No. 24-8 at 216-18. Indeed, the PCR Judge specifically noted the “issue of ineffective assistance of [Petitioner's] (standby) trial counsel was raised in his PCR Application and at the evidentiary hearing. While it could be argued this issue is precluded by the grant of the State's Motion for Summary Judgment the Court has addressed it out of an abundance of caution.” ECF No. 24-8 at 216 n.5. Thus, this issue was raised to and ultimately ruled on by the PCR Judge. Because PCR Counsel also raised this issue in the PCR appeal, this Ground is not procedurally barred and is preserved for review. See ECF No. 24-32 at 5. Consequently, the Court considers the merits of Ground One in section B below.
2. Ground Three
Respondent argues that Ground Three is procedurally barred, as Petitioner did not raise this claim during his PCR proceedings. The Court agrees.
Upon review, Ground Three was not adjudicated on the merits in state court. The Court observes that this ground was neither raised in Petitioner's PCR Application, see ECF No. 24-8 at 212, nor during the PCR hearing, see ECF No. 24-8 at 59-142. Moreover, the issue was not ruled on by the PCR Judge in the amended order of dismissal, see ECF No. 24-8 at 209-29, or in the amended order denying reconsideration under Rule 59(e), SCRCP, see ECF No. 24-8 at 230-42. Nor was it raised in the amended petition for a writ of certiorari. See ECF No. 24-32 at 5-6. Therefore, this Ground is procedurally barred from federal habeas review. See Barton v. Lewis, No. 9:18-CV-748-RBH, 2019 WL 1416887, at *8 (D.S.C. Mar. 29, 2019) (holding that claims not raised in Petitioner's initial PCR proceedings were procedurally barred), appeal dismissed, 819 Fed.Appx. 183 (4th Cir. 2020); Plyler v. State, 424 S.E.2d 477, 478 (S.C. 1992) (holding that an issue that was neither raised at the PCR hearing nor ruled upon by the PCR court is procedurally barred), overruled on other grounds by State v. Burdette, 832 S.E.2d 575 (S.C. 2019); see also Evans v. State, 611 S.E.2d 510, 515 (S.C. 2005) (noting an “issue or argument which is neither raised at PCR hearing nor ruled upon by the PCR court is procedurally barred from appellate review” (citation omitted)).
Moreover, Petitioner has not shown, much less argued, sufficient cause and actual prejudice which would otherwise allow this Court to consider this issue. See Coleman, 501 U.S. 722, 750 (1991) (“[F]ederal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.”); see also Shinn, 142 S.Ct. at 1730 (“Respondents do not dispute, and therefore concede, that their habeas petitions fail on the state-court record alone.”). Therefore, the Court recommends that Respondent's Motion be granted as to Ground Three in the Petition. See 28 U.S.C. § 2254(b); see also Cudd v. Ozmint, C. A. No. 0:08-2421-RBH, 2009 WL 3157305, at *3 (D.S.C. Sept. 25, 2009) (holding that an issue not considered by the PCR court was procedurally barred); see also White v. Burtt, C. A. No. 606-0906-TLW-WMC, 2007 WL 709001, at *8 (D.S.C. Mar. 5, 2007) (holding that an issue must be raised to and ruled on by the PCR court in order to be preserved for review (citing Pruitt v. State, 423 S.E.2d 127, 127-28 (S.C. 1992))).
3. Ground Seven
Petitioner's Ground Seven is titled “Actual Innocence.” ECF No. 11 at 20. Respondent argues that Petitioner has not presented a cognizable claim for relief. The Court agrees.
“Habeas petitioners may use an actual innocence claim to excuse the procedural default of a separate constitutional claim upon which they request habeas relief.” Buckner v. Polk, 453 F.3d 195, 199 (4th Cir. 2006) (citations omitted). However, “the Supreme Court has strongly suggested that claims of actual innocence standing alone do not serve as an independent basis for habeas relief: ‘Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.'” Id. (quoting Herrera v. Collins, 506 U.S. 390, 400 (1993)); see also McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (“We have not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.”).
Here, Petitioner does not assert that any newly discovered evidence corresponds with any violation of federal law; rather, he appears to rely on various things that occurred during trial to argue he is innocent. For example, he appears to allege that various witnesses at trial committed perjury; that there was proof of evidence being destroyed; that Petitioner was coerced to waive his Sixth Amendment rights; and appears to point to various other reasons for “fraud upon the court.” See ECF No. 11 at 20-21. Consequently, his claim here fails, as he does nothing but rely on information that was already presented at trial. See Hayes v. Carver, 922 F.3d 212, 216 (4th Cir. 2019) (“A valid actual innocence claim ‘requires petitioner to support his allegations of constitutional error with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.'” (emphasis added) (citation omitted)).
4. Ground Eight
Petitioner's Ground Eight asks a question about tolling the one-year statute of limitations under 28 U.S.C. § 2244(d)(2). ECF No. 11 at 22. Respondent has not asserted that Petitioner's Habeas Petition is outside the one-year statute of limitations. See ECF No. 24 at 23 n.10. Consequently, Petitioner's Ground Eight is moot.
B. Preserved Grounds
Petitioner's Grounds One, Two, Four, Five, and Six are properly before the Court. These Grounds allege Petitioner's Trial Counsel (Ground One) and Appellate Counsel (Grounds Two, Four, Five, and Six) were ineffective.
The United States Supreme Court has said that a meritorious ineffective assistance of counsel claim must show two things: first, that counsel's performance was deficient and, second, that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-96 (1984).
As to the first prong, a court's evaluation of counsel's performance under this standard must be “highly deferential,” to not “second-guess” the performance. Id. at 689. “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (internal quotation marks and citation omitted); see also Bowie v. Branker, 512 F.3d 112, 119 n.8 (4th Cir. 2008); Fields v. Att'y Gen. of Md., 956 F.2d 1290, 1297-99 (4th Cir. 1992).
To establish the second prong of Strickland, “[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.” Strickland, 466 U.S. at 694. A “reasonable probability” has been defined as “a probability sufficient to undermine confidence in the outcome.” Id.
While Strickland itself is a deferential standard, when both § 2254(d) and Strickland apply, review is “doubly” deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011). “Thus, [t]he question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Valentino, 972 F.3d at 580 (citation and internal quotation marks omitted). Indeed, when § 2254(d) applies, the question becomes “whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id. (citation and internal quotation marks omitted).
Respondent generally argues that the PCR Judge's rejection of the above grounds was neither contrary to, nor was it an unreasonable application of, clearly established United States Supreme Court precedent under § 2254(d). For the reasons that follow, the Court agrees with Respondent.
1. Trial Counsel - Ground One
Petitioner argues that his Trial Counsel was ineffective for giving Petitioner erroneous advice regarding self-representation and the potential consequences of proceeding pro se.
Pursuant to the Supreme Court's decision in Faretta, a criminal defendant may waive his right to counsel and instead represent himself. See Faretta, 422 U.S. at 835. To exercise that right, a defendant must “knowingly and intelligently” invoke it before the trial court. Id. A Faretta hearing “seeks to determine whether the accused, who is seeking to manage his own defense, understands the consequences of waiving his Sixth Amendment right to counsel and is relinquishing that right knowingly and intelligently.” United States v. Cohen, 888 F.3d 667, 672 n.2 (4th Cir. 2018).
The PCR Judge considered this claim in her Amended Order denying relief:
The Court finds no merit to the Applicant's claim for relief on the ground of ineffective assistance of his trial counsel, Ms. Proctor. On January 27, 2009, before the Honorable R. Markley Dennis, Applicant made a Motion to Relieve Ms. Proctor as counsel and proceed pro se. There was a full Faretta hearing, and Judge Dennis granted the motion and requested that Ms. Proctor be available as standby counsel only. It is well settled in South Carolina that Defendants have no constitutional right to hybrid representation, but may represent themselves while enjoying the advice and assistance of standby counsel. See State v. Sanders, 269 S.C. 215, 218, 237 S.E.2d 53, 54 (1977); see also Foster v. State, 298 S.C. 306, 307, 379 S.E.2d 907, 907 (1989). Applicant represented himself during this trial held February 2-6, 2009 before the Honorable Roger M. Young, Sr. and the jury convicted him of murder. Thereafter, he was sentenced by Judge Young to fifty (50) years' imprisonment. A Motion to Reconsider his sentence was filed and later granted by Judge Young on March 5, 2009, and his sentence was reduced to forty (40) years' imprisonment. The Applicant filed a Notice of Appeal, and the Court of Appeals affirmed his conviction and denied a petition for rehearing. Subsequently there was a petition for a Writ of Certiorari to the Supreme Court, which was also denied.
As stated above, an initial evidentiary hearing on the Applicant's PCR application, filed April 4, 2013, was held before the Honorable Larry B. Hyman on September 9, 2015. At the hearing, the State made a Motion for Summary Judgment as to his ineffective assistance of trial counsel claim, as Applicant acted as his own counsel at trial. Judge Hyman granted the summary judgment motion, noting that Applicant made a conscious and voluntary decision, and that decision has been reviewed by the trial court and the appellate courts as well. (Transcript of Evidentiary Hearing at 18:7-16, Terrell McCoy v. State, September 9, 2015).
Based on the foregoing, the issue that trial counsel was ineffective was disposed of at the Faretta hearing before Judge Dennis on January 27, 2009, and the subsequent appeals. Further, the September 9, 2015, hearing and grant of summary judgment before Judge Hyman disposed of this issue. Thus, these decisions are the law of this case, and this Court has no authority to disturb either Court's rulings. Based on the applicable law stated above and review of the record in this case, the Court finds
that the Applicant has failed to establish any entitlement to relief on the ground of ineffective assistance of trial counsel.ECF No. 24-8 at 217-18. The PCR Judge further noted that it did not find Petitioner's testimony regarding this issue credible or persuasive.
Upon review of the PCR Judge's consideration of this issue, the undersigned finds that the PCR Judge did not apply federal law unreasonably or base her adjudication on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d).
Here, despite Petitioner's arguments that Trial Counsel gave him erroneous advice regarding self-representation, Petitioner engaged in a colloquy with Judge Dennis about the dangers of self-representation as Faretta requires. Further, as a part of the order that granted Petitioner the right to proceed pro se, Judge Dennis ordered that Trial Counsel “is hereby relieved of Post Conviction relief Actions.” ECF No. 24-3 at 4. Petitioner proceeded pro se, was convicted, and Appellate Counsel raised the issue of whether the Faretta hearing adequately warned Petitioner of the dangers of self-representation. See ECF No. 24-6 at 127. The Court of Appeals affirmed Petitioner's conviction and sentence, and the Supreme Court denied certiorari. ECF No. 24-6 at 169-70; ECF No. 24-11.
At the initial evidentiary hearing on Petitioner's PCR application held before Judge Hyman on September 9, 2015, the State moved for summary judgment based on Petitioner's ineffective assistance of Trial Counsel claim, since Petitioner acted as his own counsel at trial. Judge Hyman-noting that Judge Dennis had “relieved” former Trial Counsel “of postconviction relief actions” as part of the order granting Petitioner the right to proceed pro se-granted the State's motion as to Trial Counsel. ECF No. 24-8 at 48, 52-53; see ECF No. 24-3 at 4-5.
The PCR Judge reviewed this procedural history and found Petitioner's claims of ineffective assistance of Trial Counsel were effectively dispatched by the Faretta hearing before Judge Dennis and the motions hearing before Judge Hyman. The undersigned finds that Petitioner has not shown that the PCR Judge's ruling was based on an unreasonable determination of facts, given this procedural history. See 28 U.S.C. § 2254(d)(2). Furthermore, Petitioner has not shown the PCR Judge's determination was an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1). Indeed, the combination of the Faretta hearing-which was reviewed on direct appeal and affirmed-and Judge Dennis's order relieving Trial Counsel of subsequent PCR actions effectively absolved Trial Counsel of ineffective assistance of counsel claims. See Faretta, 422 U.S. at 834 n.46 (1975) (noting “a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel'”); United States v. Beckton, 740 F.3d 303, 307 (4th Cir. 2014) (“Although a criminal defendant has both a right to counsel and a right to represent himself, those rights are ‘mutually exclusive.'” (citation omitted)). Accordingly, the undersigned recommends that Respondent's Motion be granted as to this Ground in the Petition.
2. Appellate Counsel
Petitioner's Grounds Two, Four, Five, and Six specifically focus on ineffective assistance of Appellate Counsel.
The Strickland standard applies equally to ineffective assistance claims against Appellate Counsel. United States v. Palacios, 982 F.3d 920, 923-24 (4th Cir. 2020). Just as Trial Counsel has discretion when it comes to trial strategy, Appellate Counsel has discretion in choosing what issues to raise and argue on appeal. See id. That is, Appellate Counsel “need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000). Consequently, merely declining to raise a specific claim on appeal is not deficient performance, unless that specific claim was “plainly stronger” than the other claims Appellate Counsel chose to present to the appellate court. Davila v. Davis, 582 U.S. 521, 533 (2017). Thus, while it is still possible to bring a Strickland claim based on Appellate Counsel's failure to raise a specific claim, it is nevertheless “difficult to demonstrate that counsel was incompetent.” Smith, 528 U.S. at 288.
Assessing whether a specific claim was “plainly stronger” necessarily requires this Court to examine the underlying merits of the omitted claim. See Bell v. Jarvis, 236 F.3d 149, 166 (4th Cir. 2000) (“Both the state court's determination of whether Bell's appellate counsel's performance fell below an acceptable level, and our review of the state court's determination for reasonableness, require an inquiry into the strength of the underlying, defaulted public trial claim.” (internal citations omitted)); see also Banks v. Reynolds, 54 F.3d 1508, 1515 (10th Cir. 1995) (“When a habeas petitioner alleges that his counsel was ineffective for failing to raise an issue on appeal, we examine the merits of the omitted issue.”).
As to Petitioner's claims of ineffective assistance of Appellate Counsel, both Petitioner's Appellate Counsel and Petitioner testified at the PCR hearing. The PCR Judge listened to this testimony and made the following findings and credibility determinations:
This Court had the opportunity to observe the witnesses on the witness stand and hear their testimony. This Court also has read the trial transcript, all of which assists the Court in judging the witnesses' credibility. This Court finds [Petitioner's] testimony regarding Appellate Counsel's ineffectiveness is not credible while also finding Counsel's testimony persuasive and very credible. The Court finds Appellate Counsel's representation of Applicant in this case was well above the professional norms. Counsel fully investigated potential preserved issues and assisted [Petitioner] in his defense. Counsel testified that he has been in the legal profession for twenty-six (26) years and has handled thousands of cases. Counsel testified that he reviewed the entire record and briefed the most meritorious issue, giving his client the best chance of prevailing. Further, Counsel testified that he has a duty not to raise non-preserved or frivolous issues on appeal. Counsel explained that he pursued the only “winnable” issue on appeal: [Petitioner's] inability to adequately appreciate the dangers and disadvantages of self-representation, which should have precluded [Petitioner] from representing himself. Further, Counsel stated he strategically decided to “weed out” issues that would not prevail.ECF No. 24-8 at 220.
The PCR Judge then found Petitioner failed to carry his burden in showing ineffective assistance of Appellate Counsel as to each of the issues Petitioner raised in his PCR application. ECF No. 24-8 at 220-28. With the PCR Judge's credibility determination in mind, the undersigned addresses each Ground of ineffective assistance of Appellate Counsel in turn.
The PCR Judge found that Appellate Counsel's testimony was more credible than Petitioner's. Such a factual finding on credibility is presumed to be correct, and Petitioner has the “burden of rebutting the presumption . . . by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
a. Ground Two - Appellate Counsel not raising Brady violations.
Petitioner's Ground Two alleges that Appellate Counsel was ineffective for failing to raise preserved Brady claims; specifically, that the State failed to disclose a 911 tape and DNA evidence. ECF No. 11 at 9.
See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding when the prosecution suppresses favorable evidence material to a defendant's guilt or punishment, it violates the constitutional guarantee of due process).
A Brady violation requires Petitioner to prove three elements: “(1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) that evidence must be material either to guilt or to punishment.” Bowman v. Stirling, 45 F.4th 740, 752 (4th Cir. 2022) (citation omitted) (cleaned up), cert. denied, 143 S.Ct. 2498, 216 L.Ed.2d 457 (2023). “Evidence is material under Brady if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Juniper v. Davis, 74 F.4th 196, 210 (4th Cir. 2023) (emphasis in original) (citation and internal quotation marks omitted).
The PCR Judge found Appellate Counsel was not ineffective as to this claim. The PCR Judge accurately recounted what happened at the trial level with respect to the alleged 911 tape as follows:
Applicant contends that the State was in possession of a 911 tape that was never produced during discovery in violation of Bradv. During his trial, the Applicant was in possession of the CAD report/dispatch log (“CAD report”), which is evidenced by his cross-examination of Officer Jason Roy. At no time during Applicant's cross-examination of Officer Jason Roy, did Applicant attempt to enter the CAD report into the record.
[]
Moreover, at the close of the Applicant's defense, standby trial counsel informed Judge Young that Applicant wished to discuss an issue about a witness. Thereafter, the Applicant stated he tried to subpoena, J. Fowler, who was the dispatcher with North Charleston Police Department (“NCPD”) that accepted the 911 call in connection to the victim's murder. Applicant sought J. Fowler's appearance at trial in order to elicit testimony that a female rather than a male made the 911 call.
[]
Judge Young questioned the parties at length as to the whereabouts of the 911 recording, and Ms. Proctor informed the Court that she tried since the first trial three (3) years prior to obtain the tape, but that she was never able to get it and did not believe the Solicitor's officer ever possessed the 911 tape. Mr. Wetmore also advised the trial judge that he never heard a 911 recording and that he did not have a copy of the 911 recording. Furthermore, Mr. Wetmore informed the trial judge that he could not stipulate - as requested by the defense - to the contention that a female made the 911 call because he did not know who made the call, the person would not be subject to cross-examination, and the information would ultimately be hearsay.
[]
The trial record is abundantly clear that the Solicitor's office did not ever have the 911 tape in its possession. This fact was solidified by Ms. Proctor's contention that she has been unable to obtain the recording for the last three (3) years when she represented the Applicant. The record also shows that at the end of the discussion regarding the missing 911 recording, Applicant, again, made no effort to enter the existing CAD report into the record.ECF No. 24-8 at 223-24 (internal citations omitted) (paragraph breaks added for ease of reading).
In considering Petitioner's Rule 59(e) motion for reconsideration, the PCR Judge acknowledged the possible existence of a 911 tape, but nevertheless inherently found Petitioner was not prejudiced by it:
Though it is now evident that a 911 tape may have existed at the time of Applicant's trial, the Court is not convinced that this creates a “reasonable probability” that the result of the Applicant's trial would have been different had the 911 tape been disclosed by the police. The Applicant was free to further investigate the existence of a 911 recording and subpoena the necessary agency, but failed to do so while acting as his own attorney. In fact, his previous attorney, Ms. Proctor, asserted that she subpoenaed the 911 recording, but was never able to obtain it. The Applicant raised the issues regarding the 911 recording and CAD report during the course of his trial, and Judge Young made it clear that he could not create a 911 recording that neither party ever had in their control or possession. The record, as preserved, indicated that there was no viable issue to appeal when the record was clear that the State did not think a 911 tape existed and was not in control or possession of the same.ECF No. 24-8 at 237-38 (emphasis added).
The PCR Judge ultimately found Appellate Counsel was not ineffective as to the 911 call, noting:
Appellate counsel testified that it was his common practice to review the record for any preserved issues he felt were “winnable” on appeal. The Applicant raised the issues with the 911 and CAD report during the course of his trial, they were ruled upon by the trial judge, and thus preserved for appellate purposes. The record, as preserved, indicated that there was no viable issue to appeal when the record was clear that the State did not think a 911 tape existed and was not in control or possession of the same. Therefore, the Court cannot find that appellate counsel was ineffective for failing to raise a Brady violation as to the 911 tape and corresponding CAD report.ECF No. 24-8 at 225.
As to the DNA evidence, the PCR Judge found:
The Applicant further testified that the State's failure to collect certain blood evidence at the scene constituted a Brady violation that appellate counsel failed to raise on appeal. Applicant testified that there was blood evidence - such as blood DNA left on walls, a doorknob, a window, and in the woodwork on a window leading to the backyard - that was never collected or sent to SLED by the North Charleston Police Department (“NCPD”). During his trial, Applicant made pretrial motions regarding the alleged failure of the NCPD to collect the aforementioned blood evidence and made contemporaneous objections which was denied by the trial judge, thus preserving tire issue for appeal.
Applicant has failed to produce any blood evidence which he claims was part of the Brady violation. Further, it is not a Brady violation to not test evidence if
investigators do not find it necessary, and if no evidence was ever collected there can be no withholding of exculpatory evidence in violation of Brady. Therefore, the Court cannot find appellate counsel ineffective for failing to raise the noncollection of certain evidence at the scene on appeal, when he did not feel, in his professional opinion, this was something Applicant would have prevailed upon.ECF No. 24-8 at 225-26.
Upon review, the undersigned finds that the PCR Judge did not apply federal law unreasonably or base her adjudication on an unreasonable determination of the facts in finding Appellate Counsel not ineffective. See 28 U.S.C. § 2254(d). As an initial matter, the undersigned finds the PCR Judge's determination that Petitioner failed to show a Brady violation with regard to the 911 call or the DNA evidence was not unreasonable.
As to the 911 call, the PCR Judge ultimately found there was no evidence that the 911 call was willfully or inadvertently suppressed, as it found the Solicitor's office did not ever have the 911 tape in its possession, and thus there could be no Brady violation “where evidence was not in the control or possession of the State and where they had no knowledge.” ECF No. 24-8 at 224; see also ECF No. 24-8 at 239 (“Court finds there is no objective evidence in the record to support that the Assistance Solicitor or the North Charleston Police Department (NCPD) engaged in deliberate acts to destroy evidence to support any allegation of spoliation of the 911 tape or CAD report.”). This is not an unreasonable determination by the PCR Judge. See Porter v. Zook, 898 F.3d 408, 438 (4th Cir. 2018) (“Although ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police,' and ‘police knowledge is plainly imputed to the prosecution for purposes of the prosecutor's Brady duties,' in this case, Appellant has not shown that this ‘favorable evidence' of Reaves's background was ever possessed by Norfolk police or the state.” (emphasis in original) (internal citations omitted)).
Moreover, on reconsideration, the PCR Judge inherently found the 911 call was not material to Petitioner's defense, because “even without the 911 recording, [Petitioner] was able to cross-examine the witnesses in detail regarding the contents of the CAD report at length,” and concluded Petitioner's trial “resulted in a verdict worthy of confidence.” ECF No. 24-8 at 238. This is not an unreasonable determination. See Juniper, 74 F.4th at 210 (discussing materiality and noting “the question” is whether-in the suppressed evidence's absence-“the defendant received a fair trial, understood as a trial resulting in a verdict worthy of confidence” (internal quotation marks omitted) (cleaned up)).
As to the DNA evidence, the PCR Judge reasoned that “it is not a Brady violation to not test evidence if investigators do not find it necessary, and if no evidence was ever collected there can be no withholding of exculpatory evidence in violation of Brady.” ECF No. ECF No. 24-8 at 225. This is not an unreasonable determination. See United States v. Teran, 496 Fed.Appx. 287, 291 (4th Cir. 2012) (“The Supreme Court has held there is no Due Process violation simply because ‘the police fail to use a particular investigatory tool,' as the ‘police do not have a constitutional duty to perform any particular tests.'” (quoting Arizona v. Youngblood, 488 U.S. 51, 58-59 (1988))); see also Kutzner v. Cockrell, 303 F.3d 333, 336 (5th Cir. 2002) (holding that failure to test fingernail scrapings for DNA evidence was not suppression of evidence under Brady).
The undersigned likewise finds that the PCR Judge did not apply Strickland unreasonably or base her adjudication on an unreasonable determination of the facts in finding Appellate Counsel not ineffective. See 28 U.S.C. § 2254(d); Valentino, 972 F.3d at 580 (noting the question is not whether a federal court considers the state court's determination under the Strickland standard to be incorrect, but whether that determination was unreasonable). Based on the trial record, the PCR Judge found Appellate Counsel's decision to not pursue these alleged Brady violations did not indicate Appellate Counsel was ineffective. To the contrary, the PCR Judge credited Appellate Counsel's professional, discretionary decision to only pursue “winnable” issues Petitioner could have prevailed on. Given that the PCR Judge found Appellate Counsel's testimony credible, the PCR Judge did not apply Strickland unreasonably in finding Appellate Counsel's efforts fell within the scope of reasonably effective assistance. Additionally, in light of the PCR Judge's finding that no Brady violation occurred, Petitioner has not shown that there was a “plainly stronger” issue that Appellate Counsel missed. See Davila, 582 U.S. at 533.
The PCR Judge found that Appellate Counsel's testimony was more credible than Petitioner's. Such a factual finding on credibility is presumed to be correct, and Petitioner has the “burden of rebutting the presumption . . . by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Petitioner has not done so here.
b. Ground Four - Appellate Counsel not raising Batson issue.
Petitioner argues that Appellate Counsel was ineffective because he failed to raise Batson claims on appeal. In considering this claim, the PCR Judge found:
Batson v. Kentucky, 476 U.S. 79 (1986) (holding the Equal Protection Clause forbids prosecutors from challenging potential jurors solely on account of their race).
At the hearing, the Applicant testified that he made an objection based on the solicitor striking all black jurors and seating all white jurors during his trial. He stated a Batson hearing was held in which the State explained it struck one of the black jurors because the juror was reluctant to serve and the juror lived in North Charleston. The Applicant explained that the trial judge allowed him to show that the explanation was mere pretext for the solicitor to engage in purposeful discrimination since there existed similarly situated white jurors who were seated. The trial judge denied Applicant's Batson motion, and the Applicant contends this was reversible error that should have been raised on appeal.
The Court finds that appellate counsel's decision not to raise the Batson challenge on appeal was proper under Counsel's strategy to concentrate on the Appellant's strongest issue. Moreover, the State articulated race-neutral reasons for their strikes, and the Court ruled against Applicant since he failed to meet his burden of showing purposeful discrimination. Thus, this Court finds that Applicant has failed to meet his burden of proving counsel's performance was deficient or that he was prejudiced thereby. Accordingly, this allegation is denied.ECF No. 24-8 at 226-27.
Upon review, the undersigned finds that the PCR Judge did not apply Strickland unreasonably or base her adjudication on an unreasonable determination of the facts in finding Appellate Counsel was not ineffective. See 28 U.S.C. § 2254(d); Valentino, 972 F.3d at 580 (noting the question is not whether a federal court considers the state court's determination under the Strickland standard to be incorrect, but whether that determination was unreasonable).
In reviewing Appellate Counsel's actions, there is a “‘strong presumption' that counsel ‘made all significant decisions in the exercise of reasonable professional judgement.'” Cullen, 563 U.S. at 196 (quoting Strickland, 466 U.S. at 689-90). This presumption requires the Court not only to “give the attorneys the benefit of the doubt, but [also] to affirmatively entertain the range of possible reasons [Petitioner's] counsel may have had for proceeding as they did.” Id. (internal citations and quotations omitted); see also Harrington, 562 U.S. at 110 (“Strickland [] calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind.”). Petitioner must overcome this presumption by showing that no fair-minded jurist could find one of those reasons to be sound trial strategy. See 28 U.S.C. § 2254(d); Harrington, 562 U.S. at 105 (“The question is whether there is any reasonable argument that counsel satisfied Strickland's standard.”).
Here, the PCR Judge credited, again, Appellate Counsel's strategy to focus on the strongest issue that had a likelihood of success on appeal. In noting that the State articulated race-neutral reasons for their strikes, and that the Trial Judge found Petitioner had failed to meet his burden of showing purposeful discrimination, the PCR Judge inherently recognized that the Batson issue was not a “plainly stronger” issue that Appellate Counsel missed. See Davila, 582 U.S. at 533; Keel v. French, 162 F.3d 263, 272 (4th Cir. 1998) (noting “appellate counsel is not required to raise an issue on appeal merely because it is not frivolous”). Appellate Counsel declining to pursue the Batson issue was a valid appellate strategy; thus, the PCR Judge's finding that Petitioner failed to show deficiency or prejudice was not unreasonable. See Keel, 162 F.3d at 272 (finding “counsel's failure to raise the Batson issue was reasonable,” where there was “ample evidence in the record to suggest racially neutral reasons for excusing the nine jurors” such that “both [Trial and Appellate] counsel could reasonably have concluded that there was sufficient evidence to conclude that there was no Batson violation, [and thus] their failure to raise the issue does not give rise to an ineffective assistance of counsel claim”); Higgins v. Cain, 720 F.3d 255, 268 (5th Cir. 2013) (“In light of the weaknesses in Higgins's proffered Batson argument, the state habeas court could have reasonably concluded that appellate counsel was not deficient in failing to raise the third step Batson argument on direct appeal.”).
c. Ground Five - Appellate Counsel not raising police's bad faith failure to preserve DNA.
Petitioner argues in Ground Five that Appellate Counsel was ineffective for failing to raise the police's alleged bad faith failure to preserve DNA under Arizona v. Youngblood, 488 U.S. 51 (1988). Specifically, Petitioner raised the issue that North Charleston Detective Angela Bunker testified at trial that she failed to preserve DNA evidence at the crime scene, and he argued that Ms. Bunker's actions prevented Petitioner from having valuable exculpatory evidence. See ECF No. 24-8 at 199, 212.
As noted above, Brady held that “the suppression by the prosecution of evidence favorable to an accused” violates due process when the evidence is “material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87 (emphasis added). In other words, the “Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence.” Youngblood, 488 U.S. at 57.
Youngblood, on the other hand, held that where a defendant can show bad faith, the “failure to preserve potentially useful evidence” constitutes a violation of the Due Process Clause. Id. at 58 (emphasis added). That is, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id.
Thus, Brady's holding is narrower in the sense that it only extends to evidence that is “material” or otherwise exculpatory, while Youngblood extends to all evidence that is “potentially useful.” See id. Because Youngblood encompasses all “potentially useful” evidence, the higher showing of bad faith on the part of the police is required to establish a due process violation. See Jean v. Collins, 221 F.3d 656, 663 (4th Cir. 2000) (en banc) (noting “the Brady duty is a no fault duty and the concept of constitutional deprivation articulated in . . . Youngblood requires that the officer have intentionally withheld the evidence for the purpose of depriving the plaintiff of the use of that evidence during his criminal trial”).
The PCR Judge apparently construed this as both a Brady claim and a prosecutorial misconduct claim. Indeed, the underlying facts for both claims deal with the alleged failures of the police and the prosecution with respect to DNA evidence. As a result, the PCR Judge's reasoning as to why this claim failed overlaps considerably with the PCR Judge's Brady analysis dealing with DNA evidence. See ECF No. 24-8 at 225-26, 227-28, 235, 240-42. Although the analysis is slightly muddled by this conflation, the PCR Judge considered this issue in her Amended Order denying Petitioner's Rule 59(e) motion as follows:
Respondent points out that Petitioner appeared to raise this claim as a free-standing claim of prosecutorial misconduct. ECF No. 24 at 35; see also ECF No. 24-8 at 213 (see ground 5(d)).
DNA evidence not tested and Angela Bunker's Testimony
The Applicant further testified that the State's failure to collect certain blood evidence at the scene constituted a Brady violation appellate counsel failed to raise on appeal. Applicant testified that there was blood evidence - such as blood DNA left on walls, a doorknob, a window, and in the woodwork on a window leading to the backyard - that was never collected or sent to SLED by the NCPD. During his trial, Applicant made pretrial motions regarding the alleged failure of the NCPD to collect the aforementioned blood evidence and made contemporaneous objections which were denied by the trial judge, thus preserving the issue for appeal.
Applicant has failed to produce any blood evidence which he claims was part of the Brady violation. Further, it is not a Brady violation to not test evidence if investigators do not find its necessary, and if no evidence was ever collected there can be no withholding of exculpatory evidence in violation of Brady. Therefore, the Court cannot find appellate counsel ineffective for failing to raise the noncollection of certain evidence at the scene on appeal, when he did not feel, in his professional opinion, this was something Applicant would have prevailed upon. Thus, the Motion to Alter/Amend on this basis is denied.
Prosecutorial Misconduct
The Applicant has raised the issue of prosecutorial misconduct on the abovementioned alleged Brady violations. More specifically, the Applicant asserts that the State failed to provide all the statements from the victim, a 911 call, CAD report, and blood evidence not collected at the scene. For the reasons set forth above in regard to each alleged Brady violation, the Court cannot discern any evidence of prosecutorial misconduct or wrongdoing in this case. The Applicant has not met his burden of proving actual prosecutorial misconduct, therefore, this allegation is dismissed.ECF No. 24-8 at 240-41 (bold emphasis in original). Upon review, the undersigned finds that the PCR Judge did not apply federal law unreasonably or base her adjudication on an unreasonable determination of the facts in finding Appellate Counsel not ineffective. See 28 U.S.C. § 2254(d).
Here, despite the PCR Judge's apparent conflation of this claim as a Brady claim and a prosecutorial misconduct claim, the undersigned finds that the PCR Judge's ultimate conclusion as to Appellate Counsel's effective assistance was not unreasonable. In rejecting Petitioner's arguments as to Ms. Bunker's testimony and whether the alleged failure of the NCPD to collect the blood evidence amounted to prosecutorial misconduct, the PCR Judge noted she could not find “any evidence of prosecutorial misconduct or wrongdoing” in the case. ECF 24-8 at 241. Thus, in doing so, she found Petitioner failed to meet his burden in showing any wrongdoing-i.e., she inherently found that Petitioner had not shown bad faith on the part of the police with respect to the blood evidence. See ECF No. 24-8 at 240-41; Youngblood, 488 U.S. at 58 (holding that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law”).
Consequently, in light of the PCR Judge's finding that Petitioner failed to meet his burden in showing prosecutorial misconduct or wrongdoing, Petitioner has not shown that the police's alleged bad faith failure to preserve DNA under Youngblood was a “plainly stronger” issue that Appellate Counsel should have pursued. See Davila, 582 U.S. at 533. Again, the core question presented is whether the PCR Judge's finding as to Appellate Counsel's effective assistance was unreasonable. Because the PCR Judge continuously credited Appellate Counsel's professional, discretionary decision to only pursue “winnable” issues Petitioner could have prevailed on and found Appellate Counsel's testimony to be credible, the PCR Judge did not apply Strickland unreasonably in finding Appellate Counsel's efforts fell within the scope of reasonably effective assistance. See id. (“Effective appellate counsel should not raise every nonfrivolous argument on appeal, but rather only those arguments most likely to succeed.”); Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (noting federal courts considering habeas petitions “have no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them” (citation omitted)).
d. Ground Six - Appellate Counsel not raising witness identification issue.
Petitioner's Ground Six argues that Appellate Counsel was ineffective for failing to raise the issue that the identification of Petitioner was unduly suggestive under Neil v. Biggers, 409 U.S. 188 (1972).
A Biggers hearing tests the likelihood of misidentification in a pre-trial identification of an alleged criminal. The Supreme Court has established a two-step process to determine whether identification testimony is admissible. Satcher v. Pruett, 126 F.3d 561, 566 (4th Cir. 1997). “First, the court must consider whether the identification procedure is unnecessarily suggestive.” Id. “Second, if the procedure was unnecessarily suggestive, a court must look at several factors to determine if the identification testimony is nevertheless reliable under the totality of the circumstances.” Id. The factors a court must consider in measuring reliability include: (1) the witness's opportunity to view the perpetrator at the time of the crime; (2) the witness's degree of attention at the time of the crime; (3) the accuracy of the witness's prior description of the perpetrator; (4) the witness's level of certainty when identifying the defendant as the perpetrator at the time of the confrontation; and (5) the length of time between the crime and the confrontation. Biggers, 409 U.S. at 199-200.
At trial, a Biggers hearing was held to determine whether the identification procedure used to identify Petitioner as the shooter was unduly suggestive. ECF No. 24-3 at 94-106. The State's witness who identified Petitioner-a Corinda Snowden Williams-testified that she knew Petitioner personally because she had dated Petitioner's brother; that she knew him for at least a year before the incident; that Petitioner used to come by her house and she would see him out in the neighborhood; that she only knew him by his street name; and that she was originally not forthcoming with identifying Petitioner, but on a second occasion she told law enforcement that Petitioner was the shooter, identified him by his street name, and she picked him out of a set of multiple photographs. ECF No. 24-3 at 94-102. The day following Ms. Williams's initial identification of Petitioner, she identified Petitioner again-this time from a single photograph, on which she wrote Petitioner's street name and her full name. ECF No. 24-3 at 102-06.
Based on Ms. Williams's testimony, the Trial Judge denied Petitioner's motion to suppress the identification as unduly suggestive, noting:
I've heard from her now on several occasions that she identified you by a different name than you say you're known by, but she identified you by the name she knew. They came up with six photographs. She picked you out, and they came back another time with one [photograph], but she identified you consistently as the person she knew.ECF No. 24-3 at 114.
At the PCR hearing, Appellate Counsel was asked, in passing, whether he was “aware of convictions that have been reversed based on unduly suggestive or improper identification?” ECF No. 24-8 at 87. Appellate Counsel acknowledged that he was sure there were cases that had been reversed because of unduly suggestive identifications, and further noted “[i]dentification is hard to win on, but I'm sure there have been cases.” ECF No. 24-8 at 87. This was the only question that brought up this issue.
The PCR Judge considered this issue in her Amended Order denying Petitioner's Rule 59(e) motion as follows:
Applicant claims that the Amended Order of Dismissal fails to address “claims of Appellate Counsel was [sic] ineffective for failing to raise the identification of Applicant was unduly suggestive when the issue was preserve [sic] for appeal.” The Motion references Ms. Corinda Williams's identification of the Applicant. Having reviewed the transcript from the PCR hearing, the Court finds that the Applicant failed to present any evidence at the evidentiary hearing regarding an unduly suggestive identification by Ms. Williams. Moreover, on page 29 of the hearing transcript, PCR counsel makes only a passing reference to unduly suggestive or improper identification when questioning appellate counsel. See Transcript of Evidentiary Hearing, Terrell McCoy v. State, December 14, 2015 at 29. However,
no substantive information was elicited from the witness or Applicant such that warranted a ruling from the Court on this issue. However, [t]he Court addressed Applicant's contention that Appellate Counsel failed to raise Brady Violation issues, including the testimony of Ms. Williams. See Amended Order of Dismissal at 13-14. Further, the Court addressed Appellate counsel's strategy in determining which issues he felt appropriate and likely successful on appeal thereby, addressing Appellate Counsel's failure to raise certain issues on appeal. See Amended Order of Dismissal at 12. Therefore, the Motion to Alter/Amend on this basis is Denied.ECF No. 24-8 at 252.
Upon review, the undersigned finds that the PCR Judge did not apply Strickland unreasonably or base her adjudication on an unreasonable determination of the facts in finding Appellate Counsel was not ineffective. See 28 U.S.C. § 2254(d); Valentino, 972 F.3d at 580. Indeed, Appellate Counsel specifically testified that identification issues are “hard to win,” and the PCR Judge again credited Appellate Counsel's professional, discretionary decision to only pursue “winnable” issues Petitioner could have prevailed on.
Appellate Counsel's discretionary decision to avoid “hard to win” issues in favor of “winnable” issues on appeal falls within the wide range of reasonable effective assistance. Indeed, in light of the circumstances of Ms. Williams's identification-specifically that she personally knew Petitioner-Petitioner has failed to show this issue was a “plainly stronger” issue that Appellate Counsel should have pursued. See Davila, 582 U.S. at 533. Thus, the PCR Judge did not apply Strickland unreasonably in finding Appellate Counsel's efforts fell within the scope of reasonably effective assistance. See United States v. Castro, 243 F.Supp.2d 565, 570-71 (W.D. Va. 2003) (finding a single-photograph identification was not unduly suggestive because, inter alia, the witness knew the defendant “from his teenage years, and their ‘business' relationship was substantial and continued for a number of years,” and thus he was not identifying “a stranger with whom he had only limited interaction”); United States v. Johnson, 114 F.3d 435, 442 (4th Cir. 1997) (finding the use of a single photograph was unduly suggestive, but that the identification was nevertheless reliable because, inter alia, the witness was a co-conspirator who robbed a bank with the defendant).
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's Motion for Summary Judgment (ECF No. 25) be GRANTED and that the Petition be DISMISSED with prejudice. It is further RECOMMENDED that Plaintiff's Motion for Bail (ECF No. 18), Motion to Produce (ECF No. 33), and Rule 9 Motion (ECF No. 34) be DENIED as MOOT.