Opinion
C. A. 1:21-3133-JMC-SVH
03-31-2022
DeShawn Lee Powell, #350880, Petitioner, v. Warden of Lee Correctional Institution, State of South Carolina, Respondent.
REPORT AND RECOMMENDATION AND ORDER
Shiva V. Hodges United States Magistrate Judge
DeShawn Lee Powell (“Petitioner”) is an inmate at the Lee Correctional Institution of the South Carolina Department of Corrections (“SCDC”) 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) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's return and motion for summary judgment filed on December 20, 2021. [ECF Nos. 13, 14]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 15]. Following an extension, Petitioner filed a response to the motion on February 24, 2022. [ECF No. 28]. Also pending before the court are Petitioner's motion to enlarge the record and motion to amend/correct his petition. [ECF No. 22, 24].
Having carefully considered the parties' submissions and the record in this case, the undersigned denies Petitioner's motion to enlarge the record and recommends the district judge grant Respondent's motion for summary judgment and deny Petitioner's motion to amend.
I. Factual and Procedural Background
In February 2011, Petitioner was indicted by the Orangeburg County grand jury for murder (2011-GS-38-0015). [ECF No. 13-6 at 63-65]. The case was prosecuted by Assistant Solicitors Donald N. Sorenson, Esq., and Harrison Bell, Esq., and Attorneys Margaret Hinds (“Hinds”) and Douglas Mellard (collectively, “trial counsel”) represented Petitioner. [ECF No. 13-5 at 3]. Trial commenced on May 15, 2012, before the Honorable Edgar W. Dixon. Id.
Petitioner was also indicted for possession of a weapon during the commission of a violent crime, but that charge was nolle prossed approximately one year prior to trial. [See ECF No. 13-5 at 473].
Petitioner was convicted of fatally stabbing Arthur Riley (“Riley”) in the early morning hours of November 3, 2010. [See, e.g., ECF No. 13-5 at 16, 262].Evidence was presented that Petitioner had been at a club with Daryl Jones (“Jones”) aka D-Shop, and Petitioner and Jones then went to Riley's, as testified to by multiple witnesses, including Jones. Id. at 69. A fight occurred between Petitioner and Riley because Riley would not let Petitioner in his house. Id. at 68-74. Jones testified he witnessed Petitioner “beating the hell” out of Riley, and multiple witnesses testified Jones told them, as they were walking towards Riley's house prior to Riley being discovered dead, that “New York [Petitioner's street name] is beating Art or trying to kill him at some point.” Id. at 84, 97-100, 118-120; see also id. at 99 (“Man, he in there beating, beating that man . . . .”). Riley was found thereafter, “basically unclothed,” and his home appeared ransacked. Id. at 139. Evidence was also presented that James Shumpert (“Shumpert”), who investigated Riley death, found a bloody knife with DNA matching Riley's on Petitioner's front porch later in the day on November 3, 2010, when Petitioner was not at home, although his mother and half-brother were. Id at 189-99, 318-19.
Evidence was presented at trial that Riley suffered from 42 stab wounds in addition to blunt force trauma. [See ECF No. 13-5 at 258].
Judge Dixon allowed the witnesses to testify as to Jones' statements told to others pursuant to the present-sense-impression exception to the hearsay rule. [See ECF No. 13-5 at 99, 119].
Petitioner was found guilty of the lesser-included offense of voluntary manslaughter on May 17, 2012 and sentenced to 30 years' imprisonment. Id. at 430, 445.
Petitioner appealed, and Kathrine H. Hudgins, Esq., (“Hudgins”) Appellate Defender, represented Petitioner and filed an Anders brief on August 14, 2014, raising the following issue:
Anders v. California, 386 U.S. 738 (1967) requires that counsel who seeks to withdraw after finding the “case to be wholly frivolous” following a “conscientious examination” must submit a brief referencing anything in the record that arguably could support an appeal, furnish a copy of that brief to the defendant, and after providing the defendant with an opportunity to respond, the reviewing court must conduct a full examination of the proceedings to determine if further review is merited. Anders, 386 U.S. at 744.
Did the trial judge err in overruling the hearsay objections made to the testimony of two witnesses about what a third witness said, finding the testimony met the present sense impression exception to the rule against hearsay?[ECF No. 13-6 at 48-62]. Petitioner also field a pro se brief on January 12, 2015, alleging as follows:
Missing records, incomplete transcript, abuse of discretion, statement of Jackson v. Denno was not recorded at trial. Judge err[ed] when allowing allegation of prior homicide in which appellant was not convicted [during Jackson v. Denno hearing] abuse of discretion. Judge err[ed] in denying directed verdict but objections [were] preserved on record.[ECF No. 13-3 at 3-20].
Petitioner is referencing a hearing pursuant to Jackson v. Denno, 378 U.S. 368 (1964) (setting forth pre-trial procedures by which to determine the voluntariness of a defendant's confession).
A supplemental appendix was filed that included the transcript of the jury qualifications and voir dire [see ECF No. 13-2 at 3-32], although not the jury selection or the section of the Jackson v. Denno hearing involving Shumpert's testimony.
The South Carolina Court of Appeals (“Court of Appeals”) issued an unpublished opinion (2015-UP-379) dismissing the matter and granting counsel's motion to be relieved on July 29, 2015, and the remittitur was issued on August 18, 2015. [ECF No. 13-2 at 33-34, ECF No. 13-4].
Petitioner filed an application for post-conviction relief (“PCR”) on August 24, 2015. [ECF No. 13-5 at 447-58]. He made the following claims and allegations of error:
1. Ineffective assistance of trial counsel investigation and trial
a. Counsel failed to properly cross-examine state witnesses.
b. Counsel failed to adequately investigate facts and circumstances surrounding the death of victim. This deprived the jury of critical information relevant to guilt or innocence.
c. Counsel failed to investigate and develop defense where the weapon found was even remotely connected to the applicant.
2. Ineffective assistance of trial counsel sentencing phase
a. Counsel failed to investigate, develop, and present all available, relevant and admissible mitigating evidence. Applicant's sentence was unreliable because of this failure.
b. Counsel failed to object to all possible grounds to inflammatory and irrelevant evidence presented by the prosecution. Applicant's sentence is therefore unreliable.
3. Ineffective assistance of appellate counsel
a. Counsel failed to obtain a complete transcript to review so the direct appeal is unreliable. Id. at 455-457.
The State made its return denying the allegations on December 10, 2015, and an evidentiary hearing was held on October 27, 2016, before the Honorable Diane Shafer Goodstein, Circuit Court Judge for Orangeburg County. [ECF No. 13-5 at 460-466 (return); ECF No. 13-5 at 467-502; ECF No. 13-6 at 3-29 (PCR hearing)]. Assistant Attorney General Ruston W. Neely (“Neely”) represented the State and Appellate Defender Jonathan Waller, Esq., (“Waller”) of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, represented Petitioner. [ECF No. 13-5 at 467]. The court heard testimony from Petitioner, Petitioner's half-brother Maurice Tucker (“Tucker”), and trial counsel Hinds, and admitted two exhibits: Exhibit 1 (photographs) and Exhibit 2 (a DNA report from SLED). [ECF No. 13-5 at 46869, ECF No. 13-6 at 27-29].
Judge Goodstein issued her first order on January 9, 2017, denying Petitioner relief and dismissing Petitioner's application with prejudice. [ECF No. 13-6 at 30-36]. Petitioner filed a motion pursuant to Rule 59(e), SCRCP, on February 2, 2017, arguing the January 9, 2017 order “does not contain specific findings of fact and conclusion so flaw regarding each of the claims presented at the evidentiary hearing.” Id. at 37. Judge Goodstein issued a second order denying relief that was filed September 8, 2017. Id. at 39-47.
Petitioner, by way of Waller, timely appealed the denial of relief to the South Carolina Supreme Court on October 12, 2017. [ECF No. 13-7 at 2-4]. Petitioner perfected his appeal through a petition for writ of certiorari filed by Lanelle Cantey Durant, Esq., Appellate Defender with the South Carolina Commission on Indigent Defense. [ECF No. 13-8]. Petitioner raised the following on appeal:
Did the PCR court err in not finding trial counsel ineffective for failing to focus on the murder weapon as a defense when Petitioner's DNA was not found on knife; knife was found on Petitioner's front porch at the front door by law enforcement although the officers claimed they did not see it initially; and for not calling Petitioner Powell's brother to testify that he did not see the knife when he entered the home before the officers?Id. at 3.
The State, represented by Assistant Attorney General Christian Saville, made its return on November 28, 2018. [ECF No. 13-9]. By order dated December 11, 2018, the Supreme Court of South Carolina transferred the PCR appeal to the Court of Appeals pursuant to SCACR 243(1), and on September 25, 2020, the Court of Appeals denied the petition for writ of certiorari. [ECF Nos. 13-10, 13-11]. The court issued the remittitur on October 23, 2020, which was filed with the Orangeburg County Clerk of Court on October 26, 2020. [ECF No. 13-12]. Petitioner filed his petition for writ of habeas corpus on September 22, 2021. [ECF No. 1].
II. Discussion
A. Federal Habeas Issues
Petitioner asserts he is entitled to a writ of habeas corpus on the following grounds:
Ground One: Ineffective Assistance of Counsel: Counsel failed to present DNA analysis that matched an individual at the crime scene, DNA of Doris Dash. This particular individual identified could have potentially had information regarding how the victim was actually killed because the individual's DNA was right next to the victim's body. But that's the same DNA they used to convict me at trial. Had counsel presented this evidence, [Petitioner] would have been found not guilty .... [The solicitor chose to ignore DNA analysis of Doris Dash from SLED that was sent to the lead investigator. It could have proven my innocence.]
Ground Two: Due Process Violation and Ineffective Assistance of Counsel: Counsel was ineffective for failing to object to Judge Dickson's answer to the jury requesting to rehear testimony [from all witnesses]. The judge discouraged the Jury from rehearing Ms. Stevenson's testimony .... The Judge granted to replay Dr. Ross' testimony for the jury because Dr. Ross worked for law enforcement but discouraged the jury from rehearing Ms. Stevenson's testimony .... Ms. Stevenson's testimony was she told law enforcement that someone named [Greek] was arguing with Mr. Riley about his gun being missing out of Mr. Riley's house that night . . . . Had the court played Ms. Stevenson's testimony over the outcome of trial would have been probably [different] because they did find a bloody gun by Mr. Riley's body on a chair and law enforcement never looked into that information . . .
Ground Three: Due Process Violation and Ineffective Assistance of Trial, Appellate, and PCR Counsel: Counsel failed to obtain a complete record of the trial transcript for review .... The PCR court “noted” that the record indicates that the portion containing Lt. Shumpert's [Jackson v. Denno] testimony was not captured on the back up audio recording and therefore could not be produced into transcript form [as well as jury selection transcripts] .... [Petitioner] would have been guaranteed a new trial.
Ground Four: Ineffective Assistance of Counsel: Trial counsel failed to call [Petitioner's] brother Maurice Tucker as a witness ..... [who would have testified] that he was present at Powell's home before law enforcement got there and that the knife was not on the porch ....Trial counsel subpoenaed Mr. Tucker . . . but counsel ordered Mr. Tucker to go home because he was no longer needed to testify in his brother's defense. Had Mr. Tucker been called as a witness at trial . . ., [his] testimony would have supported the theory that law enforcement planted the knife on Powell's porch. Mr. Tucker would have also [] explained that the knife that was allegedly found on Powell's porch with no fingerprints of Powell's because law enforcement put it there ....
Ground Five: Ineffective Assistance of Counsel and Actual Innocence: Trial counsel failed to object to prosecutor's [statements made in closing] .... [First,] the solicitor. . . argued it is a reasonable possibility that after the killing, other individuals entered the home with the deceased and ransacked the home looking for drugs or money and that these other people went so far as to steal the clothing that was on the body .... The evidence presented at trial was that there were several hours from when Powell and Mr. Riley were seen in a physical altercation until the body was discovered clothed in only underwear. Counsel did not object and was unable to articulate a trial strategy for failing to object to the comments. [Second,] [o]ne of the State's witnesses Darrel Jones, known as D-Shop, testified that he was with [Petitioner] for the entire night including during the physical altercation with Mr. Riley. [Jones] testified that the altercation was physical and that Mr. Riley was fighting back and the altercation was limited to fists and that no weapons were presented. [Jones] went on to testify that Powell could not have had a weapon because they were checked for weapons before being allowed to enter the club. They were together prior to going to the victim's home. He testified that [Petitioner] did not kill Mr. Riley because he and [Petitioner] left together when the fight was over ....During his closing argument the solicitor argued that the State's own witness should not be believed regarding the weapon because there have been many other instances of violence in clubs involving weapons in Orangeburg County over the last several years. Counsel did not object and was unable to articulate a trial strategy for failing to object to the comments ....
Ground Six: Ineffective Assistance of Counsel: Trial counsel failed to present video and photos of [Petitioner's] interrogation and statement to law enforcement and also that the prosecution for murder following the dismissal of the weapons charge against him. Counsel failed to investigate [any] of the information when [Petitioner] told counsel they took photos of him in an interrogation room. Counsel told [Petitioner] she didn't believe that any photos or video existed or was being withheld.
Ground Seven: The solicitor chose to ignore statements from witnesses that would have damaged the lead investigator's testimony at trial and would . . . have proven my innocence ....
Ground Eight: Actual Innocence and Ineffective Assistance of Counsel: The solicitor and trial counsel chose to ignore testimony from my alibi witnesses.
Ground Nine: The solicitor ignored my speedy trial motion filed August 22, 2011.
Ground Ten: Prosecutorial misconduct by the solicitor and Assistant Attorney General Ruston W. Neely.
Ground Eleven: Ineffective Assistance of Counsel: My PCR counsel was ineffective and failed to object to the order of dismissal.
Ground Twelve: Ineffective Assistance of Counsel: Trial counsel was ineffective for failure to object to the malice charges.
Ground Thirteen: Investigating officer James Shumpert never presented a search warrant when he questioned my mother or brother at my house. They conducted an illegal search. There was also a lack of probable cause.
[See ECF No. 6-1 at 17-37 (spelling and punctuation altered)].
The court has altered the numbering used by Petitioner and Respondent to consider all grounds asserted without unnecessary repetition.
B. Standard for Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the nonmoving party and draw all justifiable inferences in its favor. Id. at 255.
The moving party has the burden of proving summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by Fed.R.Civ.P. 56(c), set forth specific facts showing there is a genuine dispute for trial.
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 (1997); Noland v. French, 134 F.3d 208, 213 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (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 410. Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
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. Id. The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before the petitioner has appropriately exhausted available statecourt 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. 28 U.S.C. § 2254.
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). 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). If the PCR court fails to address a claim as is required by S.C. Code Ann. § 17-27-80, 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 result in the application of a procedural bar by the South Carolina Supreme Court. Marlar v. State, 653 S.E.2d 266 (S.C. 2007). Furthermore, strict time deadlines govern direct appeal 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. § 17-2745.
In Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009), the Fourth Circuit found that, prior to the Supreme Court of South Carolina's November 5, 2007 decision in Marlar, South Carolina courts had not been uniformly and strictly enforcing the failure to file a motion pursuant to Rule 59(e), SCRCP, as a procedural bar. Accordingly, for matters in which there was a PCR ruling prior to November 5, 2007, the court will not consider any failure to raise issues pursuant to Rule 59(e) to effect a procedural bar.
The United States Supreme Court has held that “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process”-which includes “petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This opportunity must be given by fairly presenting to the state court “both the operative facts and the controlling legal principles” associated with each claim. Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (internal citations omitted). That is to say, the ground must “be presented face-up and squarely.” Mallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994) (citation and internal quotation marks omitted).
The South Carolina Supreme Court has held that the presentation of claims to the state court of appeals without more is sufficient to exhaust state remedies for federal habeas corpus review. State v. McKennedy, 559 S.E.2d 850 (S.C. 2002); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454 (S.C. 1990). The McKennedy court held that In re Exhaustion had placed discretionary review by the South Carolina Supreme Court “outside of South Carolina's ordinary appellate review procedure pursuant to O'Sullivan.” 559 S.E.2d at 854. As such, it is an “extraordinary” remedy under O'Sullivan, “technically available to the litigant but not required to be exhausted.” Adams v. Holland, 330 F.3d 398, 403 (6th Cir. 2003).
Because the South Carolina Supreme Court has held that presentation of certain claims to the Court of Appeals, without more, is sufficient to exhaust state remedies, 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.
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 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).
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 state's courts in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman v. Thompson, 501 U.S. 722, 750 (1991), 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.), cert. denied, 555 U.S. 868 (2008). A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor which 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 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
4. Ineffective Assistance of Counsel Claims
To prevail on his ineffective assistance of counsel claims, Petitioner must show (1) that his trial counsel's performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that but for counsel's error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). The court must apply a “strong presumption” that trial counsel's representation fell within the “wide range of reasonable professional assistance,” and the errors must be “so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Harrington v. Richter, 562 U.S. 86, 104 (2011). This is a high standard that requires a habeas petitioner to show that counsel's errors deprived him “of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. That the outcome would “reasonably likely” have been different but for counsel's error is not dispositive of the prejudice inquiry. Rather, the court must determine whether the result of the proceeding was fundamentally unfair or unreliable. Harrington, 562 U.S. at 104; Strickland, 466 U.S. at 694.
The United States Supreme Court has cautioned that “‘[s]urmounting Stricklands high bar is never an easy task[,]' . . . [establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult.” Harrington, 562 U.S. at 88 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). When evaluating an ineffective assistance of counsel claim, the petitioner must satisfy the highly deferential standards of 28 U.S.C. § 2254(d) and Strickland “in tandem,” making the standard “doubly” more difficult. Harrington, 562 U.S. at 105. In such circumstances, the “question is not whether counsel's actions were reasonable,” but whether “there is any reasonable argument that counsel satisfied Stricklands deferential standards.” Id. The unreasonableness of the state court determination must be “beyond any possibility of fairminded disagreement.” Id. at 103. “If this standard is difficult to meet, that is because it was meant to be.” Id. at 102. Section 2254(d) codifies the view that habeas corpus is a “‘guard against extreme malfunctions in the state criminal justice system,' not a substitute for ordinary error correction through appeal.” Id. at 102-103 (citing Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).
D. Respondent's Motion for Summary Judgment
1. Statute of Limitations
Under the AEDPA, a § 2254 petition must be filed within one year of the date on which the state court judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). The limitations period is tolled during the pendency of a properly-filed state post-conviction action. § 2244(d)(2).
The order dismissing Petitioner's direct appeal was filed on July 29, 2015, with the remittitur issuing on August 18, 2015. Petitioner filed his PCR application on August 24, 2015, and PCR remittitur was filed on October 26, 2020. Respondent concedes that this petition was filed prior to the expiration of the one-year statute of limitations. [See ECF No. 13 at 16].
2. Procedural Bar
Respondent asserts that all grounds asserted by Petitioner, except regarding trial counsel's failure to call Tucker at trial, are procedurally barred. [See ECF No. 13 at 20]. The undersigned finds that Petitioner has also exhausted his claims concerning his incomplete trial transcript, where Petitioner presented that claim to the Court of Appeals in a pro se brief.
Otherwise, the additional grounds asserted by Petitioner were not raised at PCR or on direct appeal. Petitioner appears to concede as much. [See ECF No. 24 at 1 (“Petitioner contends that issues raised in original habeas petitioner could very well be deemed as procedurally barred, because they were not addressed to the state court.”)]. Additionally, Petitioner has not demonstrated cause for the default, actual prejudice, or that failure to consider the barred grounds will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750.
Accordingly, the undersigned recommends dismissal of all of Petitioner's grounds except Grounds 3, 4, 7 and 8 as procedurally barred. In an abundance of caution, however, the undersigned will address all grounds asserted on the merits.
3. Merits
a. Ground One
Petitioner argues that DNA was found at the crime scene belonging to Doris Dash (“Dash”) and that his trial counsel was ineffective for failure to investigate in that “[t]his particular individual identified could have potentially had information regarding how the victim was actually killed because the individual's DNA was right next to the victim's body.” [ECF No. 6 1 at 17].
At the PCR hearing, Hinds initially testified that the DNA found at the crime scene that did not belong to either Petitioner or Riley was not identified. [See ECF No. 13-6 at 18]. However, after reviewing the relevant document, Hinds' memory was refreshed that Dash's DNA had been identified and that Hinds' investigator had spoken with Dash. Id. Hinds further testified as follows:
Waller: What is your recollection to her role in his case, if you have any recollection at all in the Dash-DNA results?
Hinds: It doesn't change anything I was arguing which was basically that there was nothing there to support a conviction of Mr. Powell. It does not affect our position that although Mr. Powell allegedly was the last one to see him, that after that there is nothing to show who else came there or what people came to the house after he left. It had nothing to do with what the State was trying to show against Mr. Powell or the murder. People could have come in the house after he left to harm the man or to steal drugs or whatever was there. That has nothing to do with Mr. Powell, nothing to link Mr. Powell to the murder.Id. at 19-20. Hinds further indicated that there was not testimony to be elicited from Dash, or the investigator about Dash, that would have helped Petitioner's case. Id. at 20; see also id. at 4-5.
Petitioner argues that Dash was never interviewed [see ECF No. 28 at 1], but the record indicates otherwise, as stated above.
As to Petitioner's claim that trial counsel failed to investigate circumstances surrounding the victim's death, the PCR Judge found as follows:
Applicant also failed to show how he was prejudiced by trial counsel's alleged failure to further investigate. “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, 38586, 629 S.E.2d 353, 357 (2006).
This Court finds trial counsel made reasonable efforts to investigate the circumstances of the murder with the assistance of Applicant. Therefore, this Court finds Applicant failed to show how trial counsel's investigation was deficient or how he was prejudiced by a lack of further investigation. Accordingly this Court denies and dismisses this allegation.Id. at 43.
Here, there is no indication that the PCR Judge's determination as to this issue was unreasonable. As the PCR Judge stated, trial counsel “has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary,” and “[o]ne component of that duty is to investigate alibi witnesses identified by a defendant, and the failure to make some effort to contact them to ascertain whether their testimony would aid the defense is unreasonable.” Walker v. State, 756 S.E.2d 144, 147 (S.C. 2014). However, 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, 629 S.E.2d at 357, abrogated by Smalls v. State, 810 S.E.2d 836 (S.C. 2018) (citing Moorehead v. State, 329 S496 S.E.2d 415, 417 (S.C. 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).
Accordingly, the undersigned recommends that Respondent's motion for summary judgment be granted as to this claim.
b. Ground Two
Petitioner argues that he was prejudiced by trial counsel's failure to object to the following stated by the Judge, during jury deliberations, in response to the jury's submission of a question requesting to rehear the testimony of two specific witnesses as well as all the other witnesses:
The Court: The trial's lasted two days. Okay. Everything is on tape. Okay. We can play back all of that testimony for y'all if that's what you want. It will take us today and tomorrow to do that. What-when y'all are having issues about what you remember, what you don't remember, that's the reason [there is] 12 of you so y'all can all sit down, discuss it, and like that. I'm not trying to discourage y'all from listening to the tapes and like that. But the
reason you have 12 people doing this is so that y'all, from your collective memory, remember the testimony was, what, what is important to you, what did y'all think about the testimony . . . . Now that y'all understand the kind of the limits of the system, and understand where we are, I'm gonna let y'all go back into the jury room and discuss whether or not y'all actually need us to play some testimony or y'all just need to discuss this matter. That's up to you. I'll do whatever, it is your decision. Y'all have got to make the determination of the facts. Nobody else can do that. So, I want y'all to decide.[ECF No. 13-5 at 419-20]. Thereafter the jury requested, and was allowed, to rehear the testimony of the pathologist who testified as to how the victim died. Id. at 425-28.
Petitioner has failed to show trial counsel's failure to object to the Judge's statement was unreasonable or influenced the outcome of the case. Accordingly, the undersigned recommends granting Respondent's motion for summary judgment as to this claim.
c. Ground Three
In Ground Three, Petitioner argues that throughout his direct appeal and PCR, he was prejudiced by his counsel's failure to obtain a complete record of his trial. The record indicates the jury selection and the Jackson v. Denno hearing involving Shumpert testimony are not in the record.
As to the jury selection, Petitioner's counsel on direct appeal, Hudgins, explained to Petitioner:
When we finally received the requested transcript, it included jury qualification but not jury selection. The court reporter notes that
the tape contained nothing further in regard to your case. I called your trial counsel, Peggy Hynds, who advised me that she did not make any objections to the selection of the jury in your case. As a result, jury selection was not needed to for the direct appeal as there was no objections to the jury.[ECF No. 28-1 at 18]. As to the Jackson v. Denno hearing, although Shumpert's testimony is not found in the transcript, Petitioner's testimony and the trial court's ruling on the issue are. [ECF No. 13-5 at 173]. Additionally, Shumpert's testimony about finding the knife on Petitioner's porch is found in the trial transcript. See id.
There is no doubt that “a criminal defendant has a right to a meaningful appeal based on a complete transcript.” United States v. Brown, 202 F.3d 691, 696 (4th Cir. 2000) (citing United States v. Huggins, 191 F.3d 532, 536 (4th Cir. 1999)). When a transcript is less-than-complete, the court must determine whether the alleged omissions or deficiencies justify a new trial. Huggins, 191 F.3d at 536. To obtain a new trial based on omissions from a trial transcript, the defendant must show that the transcript errors specifically prejudiced his ability to perfect an appeal. United States v. Gillis, 773 F.2d 549, 554 (4th Cir. 1985). According to Huggins, prejudice is present when a trial transcript is so deficient that it is “impossible for the appellate court to determine if the [lower] court has committed reversible error.” 191 F.3d at 537 (citation omitted).
Petitioner argues as follows:
Here, the applicant cannot address whether police misconduct violated his Fourth Amendment rights where it can be shown police planted this evidence at home as a basis to obtain probable cause for search as well as arrest. It was not until police found this knife that police determined Petitioner was guilty of this crime as well as the fact that on appeal missing pages of Lt. Shumpert's testimony relate exclusively to probable cause determination.[ECF No. 28 at 10-11].
Here, there is no indication that the missing sections of the trial transcript address the issues discussed by Petitioner in that Shumpert's testimony at the Jackson v. Denno hearing would have been similar to that found in his direct testimony at trial. Additionally, Petitioner has failed to show that the omissions in the transcript prejudiced his ability to perfect an appeal or had any impact on his case at all. Accordingly, the undersigned recommends Respondent's motion for summary judgment be granted as to this claim.
d. Grounds Four, Seven, and Eight
Petitioner argues he was prejudiced by trial counsel's failure to call as a witness his half-brother, Tucker, who Petitioner argues would have testified there was no knife located on Petitioner's front porch. [ECF No. 28 at 2; see also ECF No. 6-2 at 30 (“solicitor chose to ignore statements from witnesses that would have damaged the lead investigation officer's testimony at my trial . . . “and prove my innocence ....”), Id. at 31 (asserting solicitor chose to ignore testimony from my alibi witnesses)].
Although Petitioner properly exhausted these claims, he is not entitled to relief.
At the PCR hearing, Tucker testified that he informed Petitioner's counsel that he was the first to arrive at Petitioner's home the morning of November 3, 2010, Petitioner was not there, and he did not see a knife on the front porch. [ECF No. 13-5 at 500]. Law enforcement found a knife on the front porch later that day. Id.
Hinds testified she and her investigator spoke with multiple witnesses, but
The problem was that the murder took place after that time frame so anybody that was at the club and would have seen him at the club Daryl put him at the club. He was at the club, and that was not an issue .... The fact that after he left the club was the time that was important.[ECF No. 13-6 at 5, 14]. Hinds further testified as to not calling Tucker as a witness as follows:
Q: Touching on his brother briefly, why what was your trial strategy behind not calling his brother to testify?
A: Well, first off, I thought we had difficult[y] with Mr. Tucker because my investigator went to talk with him and he basically said he wasn't coming to the trial and there was no need to come asking him questions. I believe he had a change of heart later. I met with him on January 26 of 2012. Basically in terms of trial strategy what it ended up coming down to was that there were a
lot of potentially good things on our side. There was no DNA, no fingerprints. There was absolutely nothing linking Mr. Powell to that murder other than a fight they had prior to that. Mr. Tucker could not tell me anything other than when he got there he didn't see [the knife]. I felt that our strongest position was to move forward without him and for that reason I did not call him as I didn't think Mr. Tucker sounded strong enough as a witness to help his brother. Then I tried to find the person that was with him in the yard that day but that person was in New York and I was not able to get in contact with him. Perhaps if another relative had been able to verify that I may have done otherwise but I felt it was more important to have the closing argument last.Id. at 5-6.
As to the claim that trial counsel failed to investigate or develop mitigating evidence, the PCR Judge found as follows:
As delineated above, trial counsel had her office's investigator investigate each of Applicant's potential alibis and witnesses. Further, trial counsel herself interviewed a number of witnesses in preparation for the trial. Trial counsel also presented mitigating evidence on Applicant's behalf after he was found guilty. Applicant failed to show how he was prejudiced by trial counsel's failure to further investigate mitigating evidence. “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, 368 S.C. at 385-86, 629 S.E.2d at 357.
This Court finds trial counsel made reasonable efforts to investigate the circumstances of the murder with the assistance of Applicant. Therefore, this Court finds Applicant failed to show how trial counsel's investigation was deficient or how he was prejudiced by a lack of further investigation into mitigation. Accordingly, this Court denies and dismisses this allegation.Id. at 44.
As to the claim that trial counsel failed to develop a defense regarding the knife, the PCR Judge found as follows:
Applicant's half-brother, Maurice Tucker, testified at the evidentiary that he did not see the murder weapon, which was found at Applicant's home on the porch, when he entered the home that morning. The substance of this testimony was already in evidence from law enforcement. Law enforcement entered the home and also did not see the knife until they were exiting the home. Tucker testifying he did not see the knife when he went into the home adds no new evidence for the jury to consider. Law enforcement found the knife later that day on Applicant's front porch. Trial counsel testified she chose not to introduce Tucker's testimony because she did not believe the testimony was stronger than having the final closing argument.
During closing argument, trial counsel's strategy was to argue law enforcement did not have enough evidence to convict Applicant beyond a reasonable doubt. “Where counsel articulates a valid reason for employing certain strategy, such conduct will not be deemed ineffective assistance of counsel.” Stokes v. State, 308 S.C. 546, 419 S.E.2d 778 (1992).
This Court finds trial counsel made reasonable efforts to investigate the circumstances of the murder with the assistance of Applicant. Therefore, this Court finds Applicant failed to show how trial counsel's defense of the knife was deficient or how he was prejudiced by trial counsel's choice of argument Accordingly, this Court denies and dismisses this allegation.Id. at 43-44.
Here, Petitioner has not established the PCR court's rulings were an unreasonable application of federal law or an unreasonable determination of the facts. First, at the PCR hearing, the only specific alibi witness Petitioner identified was Tucker. [See ECF No. 13-5 at 488-89]. However, Tucker was only to testify that he did not see the knife on Petitioner's front porch. Although Petitioner argues trial counsel could have investigated more [ECF No. 28 at 4], he does not identify any way in which trial counsel was ineffective regarding any alibi issue. As discussed by the PCR court, trial counsel and the investigator sought out multiple witnesses and pursued multiple avenues of inquiry. Petitioner has failed to indicate trial counsel's actions in this regard were unreasonable or influenced the outcome of the case.
As to Hinds' decision not to call Tucker as a witness, the PCR court's application of the Strickland standard was not unreasonable, particularly here where trial counsel gave a strategic reason for her decision. See Stokes, 419 S.E.2d at 779 (explaining where “counsel articulates a valid reason for employing certain strategy, such conduct will not be deemed ineffective assistance of counsel”) (citing Whitehead v. State, 417 S.E.2d 529, 531 (S.C. 1992)).
Accordingly, the undersigned recommends Respondent's motion for summary judgment be granted as to this claim.
e. Ground Five
Petitioner argues trial counsel should have objected to two comments made by the prosecutor in closing arguments. The relevant comments are as follows:
So, it's not beyond the realm of reason that sometime during that period of three o'clock to 5:30 in the morning multiple people went through that home looking for drugs, money, or anything else he would have had in there. And we know, from the quality of people that hung out there, we know from the ones that actually witnessed what was going on, none of them called the police. So, we know if somebody else had went through, and they had ransacked that home, taken whatever was in his pockets and pulled, you know, pulled, if he had shorts on, pulled them off and took whatever was in his pockets, they weren't gonna call the police. They weren't gonna call the police ....
[Jones] made the comment on the, on the stand that they had been in a club .... Oh, he couldn't have had a knife on him, couldn't of had a knife on him. We were at a club. I mean, ladies and gentlemen, y'all, y'all pay attention to the news here in Orangeburg County. I mean, over the last several years, I mean how many incidents of violence have occurred at clubs here in Orangeburg County that involved firearms and weapons? Ladies and gentlemen, they may try to keep the weapons out of them, but I submit to you a knife that size in somebody's big pocket, hu huh, (Negative). That's just common sense there.[ECF No. 13-5 at 358-59, 368-69].
When asked why she did not object to these statements made in closing argument, Hinds testified that she believed these comments helped Petitioner's case in that (1) she “wanted the jury to think somebody could have come in after . . . Mr. Powell was no longer there,” and (2) “[a]ccording to the club Mr. Powell was in, I wanted to the jury to listen to the part where he could not have had weapons because he would not have gotten into the club.” [ECF No. 13-6 at 8-9, 15].
The PCR court held as follows:
Applicant failed to prove that trial counsel should have objected. Applicant further failed to prove that an objection to irrelevant evidence would have resulted in the result of the proceeding being different. This Court finds trial counsel's objections were appropriate. Therefore, this Court finds Applicant failed to show how trial counsel's failure to object was deficient or how he was prejudiced by a lack of objection. Accordingly, this Court denies and dismisses this allegation.[ECF No. 13-6 at 45].
Similarly, the PCR court's application of the Strickland standard was not unreasonable, particularly where trial counsel gave a strategic reason for not objecting, see Stokes, 419 S.E.2d at 779, and the evidence presented at trial does not indicate “the evident impropriety of the solicitor's remarks.” Brown v. State, 680 S.E.2d 909, 915 (S.C. 2009).
Accordingly, the undersigned recommends Respondent's motion for summary judgment be granted as to this claim.
f. Remaining Grounds
In Grounds Six and Twelve, Petitioner argues trial counsel was ineffective for failing to present video or photos of his interrogation and for failing to object to the malice charge. These claims are procedurally barred. Additionally, Petitioner has failed to show that trial counsel's alleged failures were unreasonable, affected the outcome of the case, or that “the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147 (1973).
To the extent Petitioner argues the video or photo evidence would show a violation of his rights, the trial court found “by a preponderance of the evidence, [Petitioner] made a voluntary statement after he was Mirandized and that statement [was] limited to the fact that he did not know what the police was talking about and he was not there” [ECF No. 13-5 at 181], Petitioner testified at his PCR hearing that no one had a camera in the interrogation room in question, he never saw a video of the relevant time period, and he saw pictures but they were only of officers going through his clothes, Id. at 480-81, Hinds testified at the PCR hearing that she had no indication that the video camera was on during the relevant time period [ECF No. 13-6 at 7], and the PCR Judge generally found that Petitioner “was adequately and professionally represented by trial counsel,” “failed to satisfy his burden of providing the alleged deficiency,” and “failed to prove how he was prejudiced by any of trial counsel's actions.” Id. at 45.
In Ground Nine, Petitioner argues the prosecution ignored his speedy trial motion, but he has failed to show any alleged failure to respond prejudiced him or that he is entitled to relief on these grounds. See, e.g., Barker v. Wingo, 407 U.S. 514, 530 (1972) (establishing balancing test to determine whether a defendant was denied his right to a speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) the timeliness and vigor of the assertion of the speedy trial guarantee; and (4) prejudice to the defendant.).
In Ground Ten, Petitioner argues that Neely engaged in prosecutorial misconduct, but without elaboration, such that if this claim had been properly exhausted, the court lacks sufficient information on which to rule.
In Ground Eleven, Petitioner argues his PCR counsel was ineffective for failing to object to the order of dismissal. However, the record shows counsel did object and filed a Rule 59(e) motion after Judge Goodstein issued her first order of dismissal, and Judge Goodstein responded by issuing a second substantive order of dismissal. Petitioner has not shown counsel acted in a manner that was deficient under prevailing professional norms or that he was prejudiced by counsel's alleged conduct.
In Ground Thirteen, Petitioner objects to Shumpert's actions in questioning his mother and brother allegedly without a search warrant and probable cause. Fourth Amendment violation allegations are not cognizable in habeas corpus cases. Stone v. Powell, 428 U.S. 465, 466 (1976) (holding a state prisoner may not be granted federal habeas corpus relief when the State has provided a full and fair opportunity to litigate a Fourth Amendment claim). As such, Petitioner's claim may not be properly considered by this court.
Accordingly, the undersigned recommends Respondent's motion for summary judgment be granted as to these claims. E. Petitioner's Motion to Amend
Additionally, the undersigned denies Petitioner's motion to enlarge the record [ECF No. 22], where Petitioner filed the motion prior to filing an opposition to Respondent's motion for summary judgment and has not since addressed any deficiencies in the record beyond those already addressed above.
Fed. R. Civ. P. 15(a)(2) provides that “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” The Supreme Court has interpreted the rule to mean that “[i]f the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.” Foman v. Davis, 371 U.S. 178, 182 (1962). Nevertheless, leave to amend may be denied “when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile.” Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (citations omitted).
Although not wholly clear, it appears Petitioner seeks to amend his petition to include the following grounds:
Ground One: Ineffective Assistance of Counsel: Trial counsel knew no forensic evidence placed [Petitioner] at the scene of [the] crime and failed to investigate whether third-party DNA evidence establishes that someone else committed this crime. Other than [the] victim being stabbed no other evidence concerning whether ransacked house were signs of a struggle before or after stabbing victim or if deceased had defensive injuries.
Evidence was presented at the PCR hearing that the only other DNA evidence found on the scene belonged to Dash, and trial counsel and her investigator interviewed Dash.
Ground Two: Ineffective Assistance of Counsel: Trial counsel inadequate cross-examination. Failed to develop a defense of someone else committing this crime. Because none of the question by counsel on cross, failed to create doubt Petitioner was person who committed this crime.
Ground Three: Ineffective Assistance of Counsel: Trial counsel was ineffective for not developing a defense for the knife found at Petitioner's home. Counsel failed to show through testimony that knife did not have Petitioner's finger prints on weapon or whether blood on knife belonged to [the] victim. Counsel cross of witness about the knife failed to raise doubt.
Evidence was presented at trial that the knife did not have Petitioner's finger prints on it and that the blood on the knife belonged to the victim.
Ground Four: Ineffective Assistance of Appellate Counsel: Failed to perfect my appeal with a full transcript ....
Ground Five: Ineffective Assistance of Counsel: Counsel failed to obtain video of interrogation which police recorded during interrogation which will show the police tactics during interrogation [that] was in violation of my rights.
Ground Six: Ineffective Assistance of Appellate Counsel: Counsel failed to obtain a complete transcript to review ....
Ground Seven: Ineffective Assistance of Counsel: Counsel was ineffective for failing to object and investigate . . . evidence at sentencing ....
Ground Eight: Ineffective Assistance of Counsel: Counsel was ineffective when counsel allowed state during sentencing to provide court with false information about past criminal history that was used during sentencing. Counsel had a duty to investigate my past criminal history. [ECF No. 24, ECF No. 24-1].
Although phrased somewhat differently, the substantive issues presented in Grounds One, Three, Four, Five, and Six have already been addressed by the court above. As to Ground Two, the PCR court found as follows:
The trial transcript reflects the only witness trial counsel failed to cross-examine was Phillip Furtick. Furtick's testimony was duplicative to the testimony already taken from other officers and he was not a substantive witness for the State. The record reflects Counsel adequately cross-examined each witness in defense of Applicant.
Therefore, this Court finds Applicant failed to show how trial counsel's cross examination was deficient or how he was prejudiced by a lack of further cross-examination. Accordingly, this Court denies and dismisses this allegation.[ECF No. 13-6 at 42].
Petitioner has failed to show trial counsel's cross examinations, or lack thereof, were unreasonable or influenced the outcome of the case. Similarly, in Grounds Seven and Eight, Petitioner objects to trial counsel's performance at sentencing, but fails to identify the alleged false information that was provided and fails to show trial counsel's performance was unreasonable or influenced the outcome of the sentencing.
Accordingly, the undersigned recommends the district judge deny Petitioner's motion to amend as futile.
Given the recommendation above, it is unnecessary to address Respondent's arguments that Petitioner's motion to amend should be denied because (1) “the time for amendment has long since passed,” (2) Petitioner has not moved to amend pursuant to Fed.R.Civ.P. 15(c), (3) Petitioner failed to exhaust his administrative remedies, and (4) the statute of limitations bars the claims. [See ECF No. 27].
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned denies Petitioner's motion to enlarge the record [ECF No. 22] and recommends the district judge grant Respondent's motion for summary judgment [ECF No. 14] and deny Petitioner's motion to amend his petition [ECF No. 24], dismissing the petition with prejudice.
IT IS SO ORDERED AND 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:
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).