Opinion
C/A 5:23-2693-CMC-KDW
07-30-2024
Michael Wilson Pearson, Petitioner, v. Warden of Evans Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge
Michael Wilson Pearson (“Petitioner”) is a state prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 28, 29. On November 7, 2023, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 37. On November 27, 2023, Petitioner filed a motion for continuance, and motion for a complete record on appeal. ECF No. 33. On November 29, 2023, the court directed Respondent to file a response to Petitioner's motion requesting additional documents, and held Petitioner's deadline to respond to the summary judgment motion in abeyance. ECF No. 34. On December 11, 2023, Respondent filed additional documents to the appendix in this case. ECF No. 38. On December 27, 2023, the court advised Petitioner he had until January 29, 2024, to file a response to Respondent's summary judgment motion. ECF No. 40. On February 2, 2024, Petitioner filed a second motion for continuance seeking additional documents from Respondent related to the appeal and PCR action filed by his co-defendant. ECF No. 45. On February 6, 2024, the court issued an order advising Petitioner he is not entitled to documents from this co-defendants appeal or PCR action, and directing Petitioner to file a response to Respondent's motion for summary judgment by March 5, 2024. ECF No. 46. Petitioner filed a continuance and motion for complete record on appeal on March 5, 2024. ECF No. 50. Petitioner also filed a Response in Opposition to Respondent's Motion for Summary Judgment on this same date, ECF No. 51, and Respondent filed a Reply to Petitioner's Response on March 12, 2024. ECF No. 55. On July 26, 2024, Petitioner's motion for a continuance/motion for complete record was denied. ECF No. 57.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 29, be granted, and this Petition be denied.
The factual background is taken, verbatim, from the Court of Appeals July 30, 2014, order reversing Petitioner's convictions. ECF No. 28-6. The Court of Appeals order was subsequently reversed by a South Carolina Supreme Court opinion dated March 23, 2016. ECF No. 28-9.
Around 6:15 a.m. on May 15, 2010, Edward “Slick” Gibbons was jumped by three men as he exited his garage. The three men robbed Gibbons of approximately $840, beat him, and wrapped duct tape around his head. Following the attack, the men fled the scene in Gibbons' 1987 Chevrolet El Camino. The vehicle was discovered approximately thirty minutes later, abandoned on the side of a nearby road. A fingerprint recovered from the rear of the vehicle was matched to Pearson. The duct tape removed from Gibbons' head contained DNA evidence, which was matched to Victor Weldon.
Pearson and Weldon were both indicted for attempted murder, first-degree burglary, armed robbery, grand larceny, kidnapping, and possession of a weapon during the commission of a violent crime. A joint trial was held from May 16 through May 18, 2012. At the time of trial, investigators had yet to identify a third suspect.
At trial, Gibbons testified that as he was leaving for work, three black men wearing masks came out of the storage room inside of his garage and threw him on
the ground. According to Gibbons, one of the men sat on top of his legs, while the other two men hit and kicked him. While Gibbons was on the ground, the men wrapped duct tape around his head. Gibbons claimed that one of the men had something in his hand that “looked like a pistol.” He further testified the men took all of the money in his wallet and then one of the men asked him, “Slick ... where is the rest of it[?]” After the robbery, the three men left the garage and started to drive away. Gibbons described how he pulled himself off the ground and looked out a window in the garage to see them driving off in his El Camino. Gibbons noted that when he got up, one of the men, who was seated in the rear bed of the El Camino, jumped out of the vehicle, ran back, and knocked him unconscious.
Cecil Eaddy, a local farmer, testified he found the abandoned El Camino around 6:40 a.m. with the motor running and the passenger door open. Eaddy recounted how he turned the vehicle off and took the keys to Gibbons' auto parts store.
Eaddy stated he returned the keys so that one of Gibbons' employees could drive the vehicle back to the store. Walter Bush, an employee at Gibbons' store, corroborated Eaddy's testimony. According to Bush, Eaddy picked him up from the store and drove him to the location of the vehicle. Bush testified he drove the vehicle “straight back to the store.”
Ricky Richards, an investigator with the Clarendon County Sheriff's Office, testified he went to Gibbons' store, where he processed the El Camino. Richards stated he lifted fingerprints from the driver's side “door jamb” and the “rear quarter on the driver's side.” On cross-examination, Richards admitted there was no way to determine when the fingerprints were left on the vehicle.
Investigator Thomas “Lin” Ham testified he visited Gibbons at the hospital on the day of the crimes.1 Ham indicated that while he was at the hospital, he took the duct tape that was removed from Gibbons' head into evidence. In addition, Ham testified that during an interview with Pearson following his arrest, Pearson “adamantly denied knowing Mr. Gibbons.” Ham elaborated: “[Pearson] told me he didn't know where [Mr. Gibbons] lived. He had never been there. He had never been to [Mr. Gibbons'] place of business. He had never come into contact with [Mr. Gibbons'] vehicle.”
Marie Hodge, the automated fingerprint identification system (AFIS) examiner at the Sumter Police Department, was qualified as an expert in fingerprint identification. Hodge testified she ran seven fingerprints lifted from the vehicle through AFIS but did not obtain an identification for any of the prints. After obtaining no hits, Hodge printed out the fingerprints of persons of interest from AFIS and compared each set of prints “one-on-one” to the lifted fingerprints.
According to Hodge, a side-by-side comparison of the prints showed that a right thumbprint found on the rear of the vehicle belonged to Pearson. Hodge later received a card containing Pearson's ink-rolled fingerprints from the Sheriff's Office, and compared the prints on the card to the lifted thumbprint. Hodge testified the comparison “reaffirmed” that the thumbprint belonged to Pearson. On crossexamination, Hodge conceded that she was unable to “date” or “age” a fingerprint. She further testified that when left undisturbed, a fingerprint “can be there for quite some time.”
Investigator Kenneth Clark testified he interviewed Pearson following his arrest. Clark noted that during the interview, Pearson denied ever being around Gibbons or Gibbons' property. According to Clark, when he informed Pearson that his fingerprint had been found on Gibbons' vehicle, Pearson declined to comment.
Clark testified that subsequent investigation revealed Pearson had previously worked on a landscaping project at Gibbons' residence.
Clark also testified concerning the investigation into co-defendant Victor Weldon's involvement in the crimes. He noted that during an interview with Weldon, Weldon denied knowing Pearson or having any involvement in the crimes. Clark indicated, however, that records from the South Carolina Vocational Rehabilitation Center revealed Pearson and Weldon both worked at the same job training program from December 9-12, 2008.
Richard Gamble, a local landscaper, testified Pearson had previously assisted him in doing landscaping work for Gibbons and Gibbons' son, who lived on the same block. Gamble could not recall the exact date of the landscaping project; however, he indicated it took place in the spring of 2009 or 2010. He estimated the project lasted “at least 5 days.” Gamble testified that while working on the project, he observed Pearson enter Gibbons' garage in order to retrieve job-related tools that were located in the storage area.
The State also presented the testimony of John Hornsby, who worked as an area supervisor at the South Carolina Vocational Rehabilitation Center. According to Hornsby, time cards and attendance records revealed Pearson and Weldon were both assigned to the facility's woodshop from December 9-12, 2008. Hornsby stated that around twenty-five individuals generally worked at the woodshop on a daily basis.
After the State rested, Pearson and Weldon both moved for a directed verdict on all charges. Pearson argued that even though his fingerprint was found on the outside of Gibbons' car, the fingerprint was insufficient to place him at the
crime scene because he lived only a block from Gibbons' store and there was expert testimony indicating a fingerprint could remain on a surface for an indeterminate period. In reply, the State argued the fingerprint was found on the rear of the vehicle, where Gibbons testified one of the men who robbed him had been seated as they fled his house. The State also pointed to evidence that the two co-defendants attended the same job training program over a four-day period, as well as testimony that Pearson had done landscaping work at Gibbons' home. The trial court denied Pearson's and Weldon's motions for a directed verdict. The trial court stated:
As far as Mr. Pearson's fingerprint[,] the evidence in this case that has come before this jury that I recall he told the police officer he did not know Mr. Gibbons. He had not been at his house or his place of business. His vehicle was taken that morning. Within 30 minutes[,] the vehicle was found abandoned a mile and a half or two miles away. The vehicle was processed and was carried to the auto parts place and processed. That day his fingerprint was found on the vehicle. And I certainly think at least that's sufficient evidence for the jury to make a determination of guilt or innocence in this case. And I respectfully deny your motion.
The jury found Pearson and Weldon guilty of burglary in the first degree, armed robbery, grand larceny, kidnapping, and possession of a weapon during the commission of a violent crime. The trial court sentenced Pearson to a total of sixty years' imprisonment. This appeal followed.
1 Investigator Ham testified he had known Gibbons all of his life and frequently referred to Gibbons as “Mr. Slick” throughout his testimony.ECF No. 28-6 at 2-5.
Petitioner is currently incarcerated in Evans Correctional Institution of the South Carolina Department of Corrections. ECF No. 1. He was indicted at the January 2011 term of the Clarendon County Grand Jury on burglary, first; attempted murder; armed robbery; grand larceny; kidnapping; and possession of a weapon during a violent crime. App. 564-65. Petitioner proceeded to a jury trial on May 15-16, 2012, before the Honorable Ralph F. Cothran, Circuit Court Judge. App. 1 et. seq. Petitioner was represented by Harry Devoe, Esq. and Ernest A. Finney, III, Esq., and Jason Corbett, Esq., represented the State. App. 1. The jury found Petitioner guilty on the burglary, armed robbery, grand larceny, kidnapping, and weapon charge, App. 466-67, and Judge Cothran sentenced Petitioner to 60-years imprisonment. App. 475-76.
Citations to “App.” refer to the Appendix for Petitioner's trial transcript and Post-Conviction Relief (“PCR”) Proceedings and the page numbers on the top of the page. That appendix is available at ECF Nos. 28-1 to 28-3 in this habeas matter.
The attempted murder charge was not presented to the jury. App. 389, 448-55.
Petitioner appealed his convictions to the South Carolina Court of Appeals (“Court of Appeals”). ECF No. 28-4. On appeal, Petitioner was represented by Appellate Defender Kathrine H. Hudgins, Esq., of the South Carolina Commission on Indigent Defense, Office of Appellate Defense, who filed a final brief of appellant on October 1, 2013. Id. Attorney Hudgins raised the following issue in the appeal:
Did the trial judge err in refusing to direct a verdict of acquittal for burglary first degree, armed robbery, grand larceny, kidnapping and possession of a weapon during the commission of a violent crime when the only evidence linking Appellant to the crime scene was a fingerprint found on the victim's vehicle that was stolen at the time of the incident and the fact that Appellant denied knowing the victim and where he lived despite testimony that Appellant had helped with landscaping work for the victim and his son?Id. at 4. The State filed a final brief of respondent on September 16, 2013. ECF No. 28-5. On July 30, 2014, the Court of Appeals filed a decision reversing Petitioner's convictions. ECF No. 28-6. The State appealed the July 30 order, and the State filed a petition for writ of certiorari with the South Carolina Supreme Court on April 1, 2015. ECF No. 28-7. Petitioner filed a return to the petition for writ of certiorari on May 4, 2015. ECF No. 28-8. On March 23, 2016, the South Carolina Supreme Court filed an order reversing the Court of Appeals order, and affirming Petitioner's convictions. ECF No. 28-6, I. Procedural History
Petitioner filed an application for post-conviction relief (“PCR”) on May 27, 2016. App. 478-82. Petitioner asserted he was being held in custody unlawfully because of ineffective assistance of counsel. App. 480, 485. The State filed a return and motion for more definite statement on June 9, 2017. App. 487-91. A PCR motion hearing convened on July 24, 2018, before the Honorable Kristi F. Curtis, Circuit Court Judge. App. 493-539. Petitioner was present and represented by Attorney Timothy L. Griffith, and Attorney Julie Coleman appeared on behalf of the State. See id. Petitioner and his trial counsel Harry Devoe testified at the hearing. Id. The PCR court denied and dismissed Petitioner's PCR application in an order filed on November 20, 2018, making the following findings of fact and conclusions of law:
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
This Court has had the opportunity to review the record in its entirety and has heard the testimony at the post-conviction relief hearing. This Court has further had the opportunity to observe the witnesses presented at the hearing, closely pass upon their credibility and weigh their testimony accordingly. Set forth below are the relevant findings of facts and conclusions of law as required pursuant to S.C. Code Ann. §17-27-80 (1985).
INEFFECTIVE ASSISTANCE OF COUNSEL
Applicant alleges Trial Counsel was ineffective in his representation before and during his trial. This Court finds Applicant has failed to meet his burden of proving any of his allegations and that Trial Counsel was not ineffective in any of his actions or inactions. Each individual allegation is addressed as follows:
Trial Counsel's illness
This Court finds Applicant has failed to prove Trial Counsel's illness before his trial affected his preparation for trial or his representation in any way. The record before court shows Trial Counsel was prepared for trial, had investigated the case, and had prepared a strategic defense and argument for the case. The trial transcript reflects that Trial Counsel represented Applicant for many months before the trial. Although Trial Counsel told the jury in his opening statement that he had been sick for four or five months during his representation of Applicant,2 his explanation still shows he had months after recovering from his illness to prepare for trial.3 Most importantly, Applicant has failed to prove any specific example of what Trial Counsel would have done, had he not been ill, that would have changed the outcome of the trial. Accordingly, Applicant has not shown any specific instance of deficiency or any resulting prejudice, and has failed to meet both prongs of the Strickland test. This allegation is denied and dismissed with prejudice.
Failure to interview and call witnesses
Applicant alleges Trial Counsel was ineffective for failing to interview and call witnesses provided to him by Applicant before the trial. However, this Court finds Trial Counsel was not ineffective on this ground.
Applicant testified at the evidentiary hearing that he gave Trial Counsel the names of several alibi witnesses before his trial that would testify he was at his cousin's house at the time of the crime. Applicant testified that Trial Counsel later told him that he had been unable to find one or two of these witnesses, but he had investigated the other witnesses and he would not recommend putting them on the stand. Trial Counsel could not specifically recall whether Applicant gave him the names of any witnesses and could not recall investigating them,4 but he credibly testified that if he had been given names, he would have investigated them.
2 “I also at the same time feel sorry for my client who has been sitting in jail for two years awaiting trial; much longer than he should have waited. But not all his fault, Part of it is my fault. I was sick last September and couldn't do much for the next three or four months; four or five months actually. But before that is one of the reasons the delay was not due to my client.” Tr. Vol. 3, p. 25, line 8-16.
3 The trial took place May 14-18, 2012. Based on his statement in the transcript, if Trial Counsel were sick from September 2011 until February 2011 [sic], he would still have at least three months to prepare for trial.
4 See note 1.
This Court finds Applicant's credible recollection of his discussion with Trial Counsel before the trial showed that counsel did investigate or attempt to investigate the witness he was told about. Applicant's testimony further suggests that Trial Counsel strategically chose not to call these witnesses at trial, presumably based on the substance of their testimony or perhaps on their credibility as a witness. Based on this testimony, this Court finds Trial Counsel was not deficient in failing to interview or call these witnesses at trial.
Furthermore, Applicant has failed to prove the prejudice prong of the Strickland test by failing to present the testimony of these witnesses at the evidentiary hearing. In order to support a claim that trial counsel was ineffective for failing to interview or call potential witnesses, a PCR applicant must produce the witnesses at the PCR hearing or otherwise introduce the witnesses' testimony in a manner consistent with the rules of evidence. Glover v. State, 318 S.C. 496, 498-99, 458 S.E.2d 538, 540 (1995). The applicant's mere speculation about what the witnesses' testimony would have been cannot, by itself, satisfy the applicant's burden of showing prejudice.
Applicant has failed to prove either prong of the Strickland test, and this allegation is denied and dismissed with prejudice.
Failure to enter a notice of alibi
Similarly, Applicant's allegation that Trial Counsel was ineffective for failing to enter a notice of alibi before trial is meritless, as Applicant has failed to prove that he had a viable alibi defense to present. To qualify as an alibi, a witness's testimony must account for the defendant's whereabouts during the time of the crime such that it would have been physically impossible for the defendant to commit the crime. Walker v. State, 397 S.C. 226, 237, 723 S.E.2d 610, 616 (Ct. App. 2012). In order to support a claim that trial counsel was ineffective for failing to interview or call potential alibi witnesses, a PCR applicant must produce the witnesses at the PCR hearing or otherwise introduce the witnesses' testimony in a manner consistent with the rules of evidence. Glover v. State, 318 S.C. 496, 49899, 458 S.E.2d 538, 540 (1995). The applicant's mere speculation about what the witnesses' testimony would have been cannot, by itself, satisfy the applicant's burden of showing prejudice. Id.
The testimony discussed above shows Trial Counsel likely did investigate a potential alibi defense before the trial. His failure to present the defense suggests there was no viable defense to present. This Court finds Trial Counsel was not deficient on this ground. Although Applicant stated at the PCR hearing that he was at his cousin's house at the time of the crime, he did not testify about the specifics of this alleged alibi. Furthermore, Applicant failed to present the testimony of any
alibi witnesses to support his claim which he asserts should have been used at trial, therefore he cannot prove any resulting prejudice.
Additionally, this Court finds Trial Counsel's trial strategy in defending the case was reasonable under the circumstances, and he cannot be ineffective for failing to pursue an alternative defense. Strickland requires that trial counsel must be given leeway to make reasonable strategic decisions. No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Strickland v. Washington, 466 U.S. 668, 688-689 (1984). “Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.” Id. at 691. Therefore, judicial scrutiny of counsel's performance must be highly deferential. Id. at 689. Where counsel articulates a valid strategic reason for his action or inaction, counsel's performance should not be found ineffective. Roseboro v. State, 317 S.C. 292, 454 S.E.2d 312 (1996); Underwood v. State, 309 S.C. 560, 425 S.E.2d 20 (1992); Stokes v. State, 308 S.C. 546, 419 S.E.2d 778 (1992). Courts must be wary of second guessing counsel's trial tactics; and where counsel articulates a valid reason for employing such strategy, such conduct is not ineffective assistance of counsel. Whitehead v. State, 308 S.C. 119, 417 S.E.2d 529 (1992).
Trial Counsel credibly testified that he believed the case was “pretty good,” and he did not need to present evidence. As reflected in the record, Trial Counsel's strategy was instead to cross-examine each of the State's witnesses to show the weaknesses in the evidence and suggest Applicant had no involvement in the crime. The only physical evidence tying him to the crime was a single fingerprint on the stolen vehicle, which could have been placed there at any time before the crime. Trial Counsel's choice to focus on attacking the State's evidence rather than attempting to present a viable alibi was reasonable under the facts and circumstances of this case.
Based on these reasons, this Court finds Trial Counsel was not ineffective on this ground and this allegation is denied and dismissed with prejudice.
Failure to enter evidence provided by Applicant
Applicant alleges Trial Counsel was ineffective for failing to enter evidence Applicant allegedly provided to him before trial. However, Applicant did not present any such evidence at the evidentiary hearing. Therefore, he cannot meet his burden of proving deficiency or prejudice.
Trial Counsel credibly testified there was no evidence to show Applicant did not know his co-defendant prior to trial. Trial Counsel also investigated a potential alibi defense and was unable to locate some witnesses and declined to call others to testify at trial.
Additionally, as discussed above, this Court finds Trial Counsel's strategy to attack the State's evidence was reasonable under the circumstances. Where counsel articulates a valid strategic reason for his action or inaction, counsel's performance should not be found ineffective. Roseboro v. State, 317 S.C. 292, 454 S.E2d 312 (1996); Underwood v. State, 309 S.C. 560, 425 S.E.2d 20 (1992); Stokes v. State, 308 S.C. 546, 419 S.E.2d 77 (1992). Trial Counsel credibly testified that he believed the case was “pretty good,” and he did not need to present evidence. As reflected in the record, Trial Counsel's strategy was instead to cross-examine each of the State's witnesses to show the weakness in the evidence and suggest Applicant had no involvement in the crime. Given the sparse amount of physical evidence presented by the State at trial, Trial Counsel's strategic choice to focus on hacking the State's evidence was reasonable.
Because Applicant failed to present any evidence that would have changed the outcome of the trial, this allegation is denied and dismissed with prejudice.
Failure to speak with Applicant prior to trial
Applicant alleges Trial Counsel was ineffective for failing to speak with him often enough before the trial and claims Trial Counsel only spoke with him at his bond hearing and at a brief encounter the weekend before the trial began. At the evidentiary hearing, Applicant testified he met with Trial Counsel four or five times before going to trial. Trial Counsel testified he met with Applicant daily in the five to seven days before the trial to prepare.
Regardless of the amount of times they met, Trial Counsel was clearly prepared and fully defended Applicant at the trial. The testimony at the evidentiary hearing shows that Trial Counsel met with Applicant multiple times, fully reviewed the discovery and the evidence with Applicant; fully explained the elements of the charges and what the State was required to prove, and fully discussed defenses and potential witnesses. Applicant was able to give Trial Counsel the names witnesses he wanted him to investigate and call at trial, and Trial Counsel was able to investigate these witnesses and the evidence against him.
Federal case law holds that there is no constitutional minimum number of meetings between attorneys and their clients to satisfy competency. Campbell v. Polk, 447 F.3d 270, 279 n.2 (4th Cir. 2006) (no constitutional minimum number of meetings to satisfy competency); United States v. Olson,
846 F.2d 1103, 1108 (7th Cir. 1988) (reciting that there is no constitutional minimum number of meetings between attorney and client and observing that an experienced attorney may get more out of a single meeting than a neophyte). “Brevity of time spent in consultation, without more, does not establish that counsel was ineffective.” Easter v. Estelle, 609 F.2d 756, 759 (5th Cir. 1980) (holding it is not enough to merely show that counsel only met with his client twice before trial as long as counsel devoted sufficient time to insure an adequate defense and to become thoroughly familiar with the facts of the case and the law applicable to the case, and holding the record revealed that counsel was so prepared.). South Carolina case law has established that even if Trial Counsel only met with his client very briefly, that alone does not establish that he was unprepared or ineffective at trial. “First, there is no question that counsel met with Applicant several occasions prior to the first trial. Even if the meetings were brief, this fact alone is not indicative of inadequate trial preparation.” Harris v. State, 377 S.C. 66, 75, 659 S.E.2d 140, 145 (2008) (citing Easter).
Here, the record shows Trial Counsel was fully prepared in his defense and was familiar with the facts of the case and the law surrounding the charges. Trial Counsel credibly testified he was prepared for trial, and if he had needed more time to prepare, he would have requested a continuance. Applicant has failed to present or prove anything that Trial Counsel should have done if he had met with Applicant more before trial that would have affected the outcome of the proceeding. Accordingly, this Court finds no deficiency in Trial Counsel's actions and no resulting prejudice. This allegation is denied and dismissed with prejudice.
Failure to investigate the facts of the case
Applicant's allegation that Trial Counsel was ineffective for failing to investigate the facts of the case is meritless. “[C]riminal defense attorneys have a duty to undertake a reasonable investigation, which at a minimum includes interviewing potential witnesses and making an independent investigation of the facts and circumstances of the case.” Edwards v. State, 392 S.C. 449, 456, 710 S.E.2d 60, 64 (2011). Failure to conduct an independent investigation does not constitute ineffective assistance of counsel when the allegation is supported only by mere speculation as to result. Porter v, State, 368 S.C. 378, 385-86, 629 S.E.2d 353, 357 (2006) (citing Moorehead v. State, 329 S.C. 329, 334, 496 S.E.2d 415, 417 (1998)). In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.” Wiggins v. Smith, 539 U.S. 510, 521-22 (2003).
The testimony at the evidentiary hearing showed Trial Counsel's investigation in this case consisted of interviewing his client and other potential
witnesses provided to him by Applicant, reviewing the discovery, and speaking with the attorney representing the co-defendant. In this case, the only physical evidence tying Applicant to the crime was a single fingerprint. Based on this singular piece of evidence, there was not much more independent investigation Trial Counsel could have done other than to investigate the origins of the fingerprint. The record reflects Trial Counsel cross-examined the State's witnesses thoroughly regarding the fact that they could not “date” the fingerprint evidence. He also presented counter arguments as to the print's origin, and looked into a possible alibi defense.
Applicant failed to present any specific evidence of anything Trial Counsel should have investigated which would have changed the outcome of the trial. Therefore, neither prong of the Strickland test is met, and this allegation is denied and dismissed with prejudice.
Failure to move to sever Applicant's trial from his co-defendant
Applicant's allegation that Trial Counsel was ineffective for failing to move to sever Applicant's trial from his co-defendant's trial is meritless, as there was no legal basis to make such a motion.
Joint trials with co-defendants are very common. It is in the Solicitor's discretion to choose how to prosecute the action, and very often it is the best use of the State's resources, to combine co-defendants with the same or similar charges under the same facts into one trial. This is a standard practice, and it is only inappropriate when the court determines that it would be prejudicial or unfair to one defendant to be tried along with his co-defendant.
“A severance should be granted only when there is a serious risk that a joint trial would compromise a specific trial right of a codefendant or prevent the jury from making a reliable judgment about a codefendant's guilt.” State v. Spears, 393 S.C. 466, 475, 713 S.E.2d 324, 329 (Ct. App. 2011) (citing State v. Walker, 366 S.C. 643, 657, 623 S.E.2d 122, 129 (Ct. App. 2005)). In Spears, the South Carolina Court of Appeals held that the defendant was not prejudiced by a joint trial with his co-defendant where the evidence against both defendants for armed robbery and kidnapping was interconnected and no specific trial right was prejudiced by the joinder of these trials. The same argument applies to this case because the facts of the cases were the same, the evidence presented was connected, and neither codefendant's case prejudiced the others in any way.
Applicant has failed to prove that he was prejudiced in any way by having a joint trial. At the PCR hearing, Trial Counsel testified that, at the time of the trial, he saw no legal reason to move to sever the trials, and discussed this decision with
Applicant and chose not to make a motion to sever. Although he opined that perhaps in retrospect he should have done so, he reiterated that he was still not one hundred percent sure if he would have bifurcated the trials based on the facts of the case. Neither co-defendant gave an incriminating statement about the other, so there is no Bruton 5 violation which could form the basis for a motion to sever.
This Court finds Trial Counsel was not deficient for failing to move to sever the trials, and Applicant has failed to prove any resulting prejudice from his choice not to do so. Accordingly, this allegation is denied and dismissed with prejudice.
NEWLY DISCOVERED EVIDENCE
Applicant's allegation of newly discovered evidence that entitles him to a new trial is meritless. A party requesting a new trial based on after discovered evidence must show that the evidence: (1) is such as would probably change the result if a new trial was had; (2) has been discovered since the trial; (3) could not by the exercise of due diligence have been discovered before the trial; (4) is material to the issue of guilt or innocence; and, (5) is not merely cumulative or impeaching. Hayden v. State, 278 S.C. 610, 611-12, 299 S.E.2d 854, 855 (1983).
Applicant alleges he discovered new evidence in that his co-defendant told law enforcement he did not know Applicant before the trial. However, Applicant did not present any evidence at the evidentiary hearing to support this claim, therefore he cannot meet his burden of proof. Even if Applicant had presented such evidence, it would not qualify as “newly discovered evidence” under the required factors in Hayden to entitle him to a new trial.
First, evidence that the co-defendant did not know Applicant would likely not change the outcome of a new trial. There was testimony presented at trial to show Applicant and his co-defendant did not know each other before the crime was committed. However, the State also presented evidence that the men attended the same work center during the same time period before the crime. Second, Applicant has not proven that such evidence was newly discovered after trial. Third, such evidence could have been discovered before the trial with due diligence. Notably, Trial Counsel testified that there was no way to prove that the two men did not know each other. Fourth, any such evidence is immaterial to the issue of guilt or
5 Bruton v. United States, 191 U.S. 123 (1968); See State v. Jackson, 410 S.C. 584, 592, 765 S.E.2d 841, 845 (Ct. App. 2014) (“In a joint trial, the admission of a non-testifying codefendant's confession that incriminates another defendant violates the other defendant's right of confrontation.”).
innocence. The evidence showed there were multiple other participants involved in this crime, although the others were never identified or prosecuted. Applicant and his co-defendant could have become involved in the crime through their association with these unknown actors, even if they did not know each other.
Finally, such evidence is merely cumulative, Applicant's statement to law enforcement that he did not know the co-defendant was admitted into evidence, and Trial Counsel thoroughly cross-examined the State's witnesses about the possibility that the two did not know each other.6
Accordingly, because Applicant failed to present any evidence to support this claim and because such evidence would not satisfy all five factors of the test for newly discovered evidence under Hayden, this Court finds Applicant is not entitled to a new trial on these grounds. This allegation is denied and dismissed with prejudice.
V. CONCLUSION
Based on all the foregoing, this Court finds and concludes that Applicant has not established any constitutional violations or deprivations that would require this court to grant his application. Therefore, this application for post-conviction relief must be denied and dismissed with prejudice.
6See cross-examination of Kenneth Clark and John Horbsby, Tr. Vol. 4.App. 541-57.
Petitioner appealed the denial of his PCR application and Appellate Defender Jessica M. Saxon, South Carolina Commission on Indigent Defense, Division of Appellate Defense, represented Petitioner on appeal. ECF No. 28-10. Attorney Saxon filed a Petition for Writ of Certiorari in the South Carolina Supreme Court on November 27, 2019, presenting the following issue:
Did the PCR court err in finding trial counsel effective where trial counsel failed to make a motion to sever Petitioner's trial from that of his co-defendant where evidence was entered at trial that would not have been entered if Petitioner had been tried alone and resulted in the jury being unable to make a reliable judgment about Petitioner's guilt separate from that of his co- defendant?Id. at 3. The State filed a return to the petition on April 13, 2020. ECF No. 28-11. The South Carolina Supreme Court transferred the petition to the Court of Appeals who issued an order denying certiorari on April 19, 2022. ECF Nos. 28-12, 28-13. The remittitur was issued on September 12, 2022. ECF No. 28-14.
III. Discussion
A. Federal Habeas Issues
Petitioner raises the following issues in his Federal Petition for a Writ of Habeas Corpus, quoted verbatim:
GROUND ONE: Petitioner entitled to a directed verdict.
Supporting Facts: Co-Defendant case was reversed on P.C.R. and proof of elements of offenses not sufficient to send case to jury.
GROUND TWO: Trial counsel failed to move to sever trial.ECF No. 1-2 at 5-7.
B. Standard for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, 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, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 323 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
C. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320, 336 (1997); Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362 (2000). “[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.” Id. at 411.
a. Deference to State Court Decisions
Courts afford deference to state courts' resolutions of the habeas claims of state prisoners. See Bell v. Cone, 543 U.S. 447, 455 (2005). The Supreme Court has provided further guidance regarding the deference due to state-court decisions. Harrington v. Richter, 562 U.S. 86 (2011); Cullen v. Pinholster, 131 S.Ct. 1388 (2011). To obtain habeas relief from a federal court, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. “[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102. The Court further stated: “If this standard is difficult to meet, that is because it was meant to be.” Id.; see Richardson v. Branker, 668 F.3d 128, 137-44 (4th Cir. 2012) (quoting Harrington extensively and reversing district court's grant of writ based on his ineffective assistance of counsel claims).
In interpreting § 2254(d)(1) and discussing the federal courts' role in reviewing legal determinations made by state courts, the United States Supreme Court held as follows:
[A] federal court may grant a writ of habeas corpus if the relevant state-court decision was either (1) “contrary to . . . [clearly] established Federal law as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.Williams v. Taylor, 529 U.S. 362, 404-05 (2000) (quoting from § 2254(d)(1)). “Clearly established Federal law in § 2254(d)(1) refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams, 529 U.S. at 412). In considering whether a state-court decision is “contrary to” clearly established federal law, the federal court may not grant relief unless the state court arrived at a conclusion opposite to that reached by the Supreme Court on a legal question, the state court decided the case differently than the Court has on facts that are materially indistinguishable, or if the state court “identifie[d] the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applie[d] that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 405-13. The “unreasonable application” portion of § 2254(d)(1) “requires the state court decision to be more than incorrect or erroneous[,]” it “must be objectively unreasonable,” which is a higher threshold. Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citation omitted).
Section 2254(e)(1) requires the federal court give a presumption of correctness to statecourt factual determinations and provides that a petitioner can only rebut such a presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Accordingly, a habeas petitioner is entitled to relief under § 2254(d)(2), only if he can prove, by clear and convincing evidence, that the state court unreasonably determined the facts in light of the evidence presented in state court.
b. Ineffective Assistance of Counsel
The Sixth Amendment provides a criminal defendant the right to effective assistance of counsel in a criminal trial and first appeal of right. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court announced a two-part test for adjudicating ineffective assistance of counsel claims. First, a petitioner must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 687. Second, the petitioner must show that this deficiency prejudiced the defense. Id. at 694. The United States Supreme Court's 2011 decisions cited previously elaborate on the interplay between Strickland and § 2254, noting the standards are “both highly deferential,” and “when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal quotation marks omitted); Pinholster, 131 S.Ct. at 1403. When a petitioner raises in a § 2254 habeas petition an ineffective-assistance-of-counsel claim that was denied on the merits by a state court, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable[,]” not “whether defense counsel's performance fell below Strickland's standard.” Harrington, 562 U.S. at 101. “For purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Id. (citing Williams, 529 U.S. at 410) (emphasis in original). “A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id.
2. Procedural Bar
Federal law establishes this court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person “is in custody in violation of the Constitution or laws or treaties of the United States[,]” and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. 28 U.S.C. § 2254(a)-(b). The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require that a habeas petitioner first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
a. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court, shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal; or (2) by filing an application for PCR. State law requires that all grounds 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 (S.C. 1976). Strict time deadlines govern direct appeals and the filing of a PCR in the South Carolina courts. A PCR 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.
Furthermore, in filing a petition for habeas relief in the federal court, a petitioner may present only those issues that were presented to the South Carolina Supreme Court or the South Carolina Court of Appeals. See State v. McKennedy, 559 S.E.2d 850, 853 (S.C. 2002) (holding “that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error.”) (quoting In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief, 471 S.E.2d 454, 454 (S.C. 1990)).
b. Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the United States Supreme Court explains: [state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case. Reed v. Ross, 468 U.S. 1, 10-11 (1984).
However, if a federal habeas petitioner can show both (1) “‘cause' for noncompliance with the state rule [,]” and (2) “‘actual prejudice resulting from the alleged constitutional violation[,]'” the federal court may consider the claim. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 23, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986).
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met, and the rules of procedural bar apply. See Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996).
3. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the South Carolina Supreme Court 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 that a “fundamental miscarriage of justice” has occurred. Murray v. Carrier, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor that hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Id. Absent a showing of cause, the court is not required to consider actual prejudice. Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray v. Carrier, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
IV. Analysis
A. Ground One
In Ground One, Petitioner argues he was entitled to a directed verdict. ECF No. 1 at 5. Petitioner contends his co-defendant's case was reversed on appeal, and the proof of elements of offenses was not sufficient to send case to the jury. Id.
In his direct appeal, Petitioner stated he moved for a directed verdict of acquittal at the close of the State's case arguing there was no direct evidence he was at the crime scene. ECF No. 28-4 at 8. Petitioner argued the only evidence linking him to the vehicle was a fingerprint on the outside of the vehicle after the vehicle was stolen and abandoned on the side of the road, and that evidence was insufficient to place Petitioner at the scene of the crime. Id. at 8-9. In denying the motion for directed verdict, the trial court stated the evidence showed Petitioner's fingerprint was found on the victim's vehicle shortly after the vehicle was stolen although Petitioner denied knowing the victim or having been at the victim's house or place of business. App. 392-94. The trial court explained this evidence was sufficient for the jury to make a determination of guilt or innocence. App. 392-95.
The Court of Appeals granted Petitioner's appeal and reversed his convictions finding the circumstantial evidence presented by the State did not rise to the level of substantial circumstantial evidence necessary to submit the case to the jury. ECF No. 28-6. The South Carolina Supreme Court reversed the decision of the Court of Appeals and affirmed Petitioner's convictions finding:
Here, the State presented evidence that: (1) Pearson's fingerprint was found on the stolen vehicle, which was located approximately two miles from Victim's home within thirty minutes of the crime; (2) Pearson denied that he had contact with Victim's vehicle, knew Victim, or knew where he lived; (3) Victim testified that before the suspects drove away one of the men, who was riding in the open back of
the vehicle, got out of the vehicle and returned to attack him; (4) Pearson and Weldon were in the same vocational rehabilitation training program during a four-day period; and (5) DNA evidence on the duct tape removed from Victim's head was matched to Weldon.
Viewing this evidence in the light most favorable to the State, we conclude the evidence could induce a reasonable juror to find Pearson guilty. As in Bennett, we find the Court of Appeals weighed the evidence and erroneously required the State, at the directed verdict stage, to present evidence sufficient to exclude every other hypothesis of Pearson's guilt. See Pearson, 410 S.C. at 401-02, 764 S.E.2d at 711 (“Because the State offered no timing evidence to contradict reasonable explanations for the presence of the fingerprint, the jury could only have guessed the fingerprint was made at the time of the crimes.” (emphasis added)).5
5Pearson cites State v. Bostick, 392 S.C. 134, 708 S.E.2d 774 (2011), State v. Arnold, 361 S.C. 386, 605 S.E.2d 529 (2004), and State v. Mitchell, 341 S.C. 406, 535 S.E.2d 126 (2000)as examples of cases where this Court found that circumstantial evidence, particularly fingerprint evidence, was insufficient for submission to the jury when the State failed to place the defendant at the scene of the crime. While we have certainly considered these cases, we need not engage in the futile exercise of attempting to distinguish their holdings from the instant case as we have recognized that “in this area of ever-evolving jurisprudence our inquiry is necessarily fact-intensive” and holdings in these cases are “limited to their peculiar facts.” Bennett, 415 S.C. at n.l, 781 S.E.2d at 354 n.l.ECF No. 28-9 at 10-11.
Respondent moves for summary judgment on this Ground arguing Petitioner's claim is not cognizable in a federal habeas case because he challenges a state court ruling on a directed verdict motion which is entirely a state law matter. ECF No. 28 at 16. Respondent further argues to the extent Petitioner is asserting a challenge to the sufficiency of the evidence, Petitioner's claim is without merit because the South Carolina Supreme Court's ruling was not objectively unreasonable and Petitioner cannot satisfy his burden for relief. Id. at 16-18.
In his opposition brief, Petitioner cites to Jackson v. Virginia, and argues the state court record conclusively established Petitioner was lawfully employed at the victim's residence, despite Petitioner's lack of recollection, and the fingerprint was put on the victim's car when Petitioner was in victim's garage with tools. ECF No. 51 at 2. Petitioner seeks an amendment to his habeas petition to add an argument that his PCR counsel procedurally defaulted this claim pursuant to Martinez v. Ryan. Id. at 2-3. Petitioner requests his petition be remanded to state court on DNA/IAC and actual innocence claims. Id. at 3.
Jackson v. Virginia, 443 U.S. 307 (1979) (holding “in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254-if the settled procedural prerequisites for such a claim have otherwise been satisfied-the applicant is entitled to habeas corpus relief it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”)
In reply, Respondent argues any attempt by Petitioner to raise additional claims in support of his habeas petition is factually insufficient to support a grant of relief. ECF No. 55 at 1. Respondent also contends that any new ineffective assistance of counsel claim is also procedurally barred as Petitioner's sole claim raised in his PCR appeal was the failure of counsel to move for a severance. Id. at 1-2.
After a review of the record, the undersigned finds Petitioner has failed to show the South Carolina Supreme Court unreasonably applied United States Supreme Court precedent in deciding this Ground One directed verdict claim. Petitioner has also not shown by clear and convincing evidence that the court reached an unreasonable factual determination of this issue given the evidence and record before it. The undersigned finds the trial transcript supports the South Carolina Supreme Court's finding that the trial court correctly denied Petitioner's motion for a directed verdict. As noted by the South Carolina Supreme Court, the evidence of Petitioner's guilt, i.e., Petitioner's fingerprint on victim's vehicle, Petitioner denied knowing victim or having contact with victim's vehicle or house, victim's testimony that one of the perpetrators exited the open back of the vehicle, Petitioner and co-defendant participated for 4-days in the same vocational rehab program, and Petitioner's co-defendant's DNA on tape removed from victim, when viewed in the light most favorable to the State, could induce a reasonable juror to find Petitioner guilty. Although Petitioner now argues his fingerprint on the vehicle can be explained because he was lawfully employed to work at the victim's home, this argument was not raised at trial or in Petitioner's direct appeal. This claim is therefore not properly before the court. See Coleman, 501 U.S. 722 (stating that if an issue is not properly raised to the state's highest court and would be procedurally impossible to raise now, then it is procedurally barred from federal habeas review). The undersigned recommends Respondent be granted summary judgment on Petitioner's Ground One claim.
2. Ground Two
In his Ground Two claim, Petitioner argues his trial counsel was ineffective for failing to move to sever his case. ECF No. 1 at 7.
In denying this ineffective assistance of counsel claim, the PCR court found this Ground was meritless as there was no legal basis to make a severance motion. App. 554. The PCR court explained there was no serious risk that a joint trial would compromise a specific trial right of a co-defendant because “the underlying facts in the case were the same, the evidence presented was connected, and neither co-defendant's case prejudiced the others in any way.” Id. The PCR court also referenced trial counsel's testimony at the PCR hearing that he did not see any legal reason to move for a severance as neither co-defendant gave an incriminating statement about the other. App. 555. The PCR court denied this claim finding Petitioner failed to establish he was prejudiced by a joint trial. Id.
Respondent moves for summary judgment arguing Petitioner's claim is without merit asserting Petitioner failed to establish the ruling of the PCR court was an unreasonable application of law and fact. ECF No. 28 at 18-19.
In his response in opposition, Petitioner does not offer any arguments in support of this claim. ECF No. 51.
The undersigned finds Petitioner has failed to satisfy the Strickland test. Petitioner has failed to show by clear and convincing evidence that the PCR court reached an unreasonable factual determination that Petitioner (a) failed to satisfy his burden in proving trial counsel was deficient in not making a motion to sever, and (b) failed to show trial counsel's failure to make the motion compromised a specific trial right or biased the jury. Petitioner has also failed to show the PCR court unreasonably applied United States Supreme Court precedent in deciding these claims. Accordingly, Petitioner has failed to overcome the deferential standard of review accorded the state PCR court's determinations of these issues. Williams v. Taylor, 529 U.S. 420 (2000); Bell v. Jarvis, 236 F.3d 149, 157-58 (4th Cir. 2000); 28 U.S.C. § 2254(e)(1) (finding the determination of a factual issue by the state court shall be presumed correct unless rebutted by clear and convincing evidence). The undersigned recommends Respondent be granted summary judgment on Petitioner's Ground Two claim.
V. Conclusion and Recommendation
Based upon the foregoing, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 29, be GRANTED and the Petition be DENIED.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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).