Opinion
2:23-cv-00818-TMC-MGB
04-09-2024
Andre Richardson, Petitioner, v. Levern Cohen, Warden of Ridgeland Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Andre Richardson, a state prisoner, seeks habeas corpus under 28 U.S.C. § 2254. (Dkt. Nos. 1, 3-1.) This matter is before the Court on the Respondent's Motion for Summary Judgment. (Dkt. No. 13.) Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge is authorized to review the Petition and submit findings and recommendations to the United States District Judge. For the reasons set forth below, the undersigned RECOMMENDS that Respondent's Motion for Summary Judgment (Dkt. No. 13) be GRANTED.
BACKGROUND
Petitioner is currently housed in the Ridgeland Correctional Institution of the South Carolina Department of Corrections. In June of 2009, Petitioner was indicted for murder and financial identity fraud. (Dkt. No. 12-4 at 158, 160.)Petitioner's charges arose from the October 27, 2008 murder of his grandfather, Fredrick Steward. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Steward was shot ten (10) times with a semi-automatic pistol and left on the side of a rural road in Colleton County. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Petitioner repeatedly told police he had nothing to do with Steward's murder but changed his story after police discovered that Petitioner had used his dead grandfather's bank account to pay his car note and insurance. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) After Petitioner was arrested for this financial crime, he told police that he and his grandfather had been kidnapped, and that the kidnappers killed Steward. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Petitioner was then charged with murder. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.)
This Report and Recommendation reflects the pagination assigned by the Court's automated docketing system.
On September 1, 2009, Petitioner's case proceeded to a jury trial before Circuit Court Judge Perry M. Buckner. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Petitioner was represented by public defender Harris S. Beach. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1186.) At trial, the State presented evidence refuting Petitioner's kidnapping story and showing that Petitioner had the means and opportunity to obtain the murder weapon (as discussed in greater detail below). (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) The jury ultimately found Petitioner guilty on both counts. (Dkt. No. 12-1 at 174.) He was sentenced to thirty-five (35) years in prison for murder, and five (5) years in prison for financial identity fraud (to run concurrently with his murder sentence). (Id. at 184-85.)
Petitioner raises no claims related to the financial identity fraud charge. (See generally Dkt. No. 1.)
Petitioner directly appealed his convictions and sentences. (Dkt. No. 1 at 2.) Petitioner's appellate counsel, Robert M. Dudek, filed an Anders brief and a petition to be relieved as counsel on January 6, 2011. (Id. at 157-201.) On February 1, 2012, the South Carolina Court of Appeals denied the petition to be relieved as counsel, and directed the parties to fully brief the issue of whether the circuit court erred in denying Petitioner's motion for a directed verdict on his murder charge in light of State v. Bostick, 392 S.C. 134 (2011) and State v. Odems, 295 S.C. 582 (2011). (Id. at 202-03.) After considering the parties' briefings, the Court of Appeals affirmed Petitioner's convictions and sentences in an unpublished opinion dated May 22, 2013. (Dkt. No. 12-4 at 37-38.) The remittitur was issued on June 14, 2013. (Id. at 39.) Petitioner did not file a further appeal. (Dkt. No. 1 at 2.)
Petitioner did, however, file an application for post-conviction relief (“PCR”) on June 6, 2013. (Dkt. No. 12-4 at 40-66.) In his PCR application, Petitioner alleged, inter alia, ineffective assistance of counsel. (Id.) At Petitioner's PCR hearing, Petitioner's trial counsel clarified that Petitioner was seeking PCR relief solely on the ground that his trial counsel was ineffective for failing to move to suppress or object to testimony and argument presented at trial pertaining to Petitioner's refusal to consent to a warrantless search of his car and a gunshot residue (“GSR”) test of his hands, in violation of his constitutional rights. (Id. at 75.) Circuit Court Judge Michael G. Nettles presided over the hearing, which was held on October 18, 2016. (Id. at 72-114.) Petitioner was present at the hearing and was represented by Tristan M. Shaffer as PCR counsel. (Id.) Petitioner's trial counsel was deceased at the time of the hearing, so counsel relied strictly on the record in making arguments at the hearing. (Id.) After considering the parties' arguments, the PCR court issued an Order of Dismissal denying and dismissing Petitioner's application with prejudice on December 30, 2016. (Dkt. No. 12-4 at 115-26.) Petitioner did not appeal the PCR court's decision. (Dkt. No. 1 at 3; Dkt. No. 12 at 3.)
On May 17, 2017, Petitioner filed a second PCR application, alleging that he was entitled to an appeal pursuant to Austin v. State, 305 S.C. 453 (1991), because his PCR counsel failed to appeal the PCR court's December 30, 2016 Order. (Dkt. No. 12-4 at 127-35.) The State conceded that Petitioner was entitled to this appeal, and the PCR court filed an Order finding the same on February 8, 2019. (Id. at 136-55.) Petitioner then filed his Austin appeal, raising the same issue as in his first PCR application. (Dkt. No. 12-5.) The appeal was transferred from the South Carolina Supreme Court to the South Carolina Court of Appeals. (Dkt. No. 12-8.) On September 22, 2022, the Court of Appeals issued an Order denying certiorari. (Dkt. No. 12-9.)
Petitioner filed the instant habeas petition on March 2, 2023. (Dkt. No. 1.) In his Petition, he raises the following grounds for relief:
Ground One : The South Carolina courts' failure to grant relief on Petitioner's motion for directed verdict on his murder charge despite the insufficiency of the evidence violated his right to due process under the Fourteenth Amendment of the United States Constitution, and was therefore contrary to, or an unreasonable application of, clearly established federal law.
Ground Two : The PCR court erred in finding that trial counsel was not ineffective for failing to move to suppress or object to the testimony and argument that Petitioner refused to consent to both a warrantless search of his car and a GSR test of his hands in violation of Petitioner's rights under the Fourth, Sixth, and Fourteenth Amendments.(Dkt. No. 1 at 11, 15.)
After requesting and receiving extensions of time, Respondent filed a Return and Motion for Summary Judgment on June 21, 2023. (Dkt. Nos. 12, 13.) Petitioner filed a Response to the Motion for Summary Judgment on July 5, 2023. (Dkt. No. 16.) Respondent replied on July 27, 2023. (Dkt. No. 19.) Accordingly, the motion before the Court has been fully briefed and is ripe for habeas review.
LEGAL STANDARD
I. Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Rule 12, Rules Governing § 2254 Cases (stating courts may apply in habeas cases any of the Federal Rules of Civil Procedure to the extent they are not inconsistent with statutes or the § 2254 rules). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). In ruling on a motion for summary judgment, “the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.” The News & Observer Publ'g Co., 597 F.3d at 576 (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
II. Habeas Standard of Review
Habeas corpus in federal court exists to “guard against extreme malfunctions in the state criminal justice systems.” Harrington v. Richter, 562 U.S. 86, 102 (2011) (citation and internal quotation marks omitted). Federal habeas is neither an alternative to state-court relief nor an additional chance to appeal erroneous state-court rulings. See id. That preference for, and deference to, state courts is borne out in the various constraints placed on federal courts. See Shoop v. Hill, 139 S.Ct. 504, 506 (2019) (per curiam) (stating § 2254 “imposes important limitations on the power of federal courts to overturn the judgments of state courts in criminal cases”); see also Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (stating § 2254 “reflect[s] a presumption that state courts know and follow the law” (citation and internal quotation marks omitted)).
Since the 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, 322-23 (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); 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.” Williams, 529 U.S. at 410. “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington, 562 U.S. at 86 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Federal courts must also defer to state courts' factual determinations, which are presumed correct until the prisoner rebuts that presumption with clear and convincing evidence. § 2254(e)(1).
In addition, before state prisoners may try to clear those high hurdles, two rules steer them to first pursue all relief available in the state courts. See § 2254(b)(1). The first, known as exhaustion of remedies, requires a prisoner to present his claims to the highest state court with jurisdiction to decide them. Stewart v. Warden of Lieber Corr. Inst., 701 F.Supp.2d 785, 790 (D.S.C. 2010). A federal court cannot grant a prisoner's habeas corpus petition until he exhausts his state-court remedies. § 2254(b)(1), (c). The second rule, called procedural default, comes into play when a prisoner failed to present a claim to the state courts at the appropriate time and has no means of doing so now. Stewart, 701 F.Supp.2d at 790. Federal courts may not consider a procedurally defaulted claim unless the prisoner shows either that he has cause for defaulting and that the alleged violation of federal law prejudiced him or that not addressing the claim would be a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). In considering whether Petitioner should receive habeas relief under these standards, the undersigned has carefully considered the record before the Court.
DISCUSSION
It is undisputed that Petitioner has exhausted his administrative remedies and that his grounds for relief are not procedurally barred. (Dkt. Nos. 12, 16, 19.) Rather, Respondent argues that summary judgment is appropriate because each of Petitioner's grounds for relief fails on the merits. (Dkt. No. 12.) The undersigned considers Respondent's arguments, below.
I. Ground One
In his first ground for relief, Petitioner argues that the trial court should have granted his motion for directed verdict on his murder charge because the State failed to present sufficient evidence such that a rational factfinder could find him guilty of murder.(Dkt. No. 1 at 11.) Petitioner claims that the trial court's failure to grant his motion for directed verdict “violated his right to due process under the Fourteenth Amendment of the United States Constitution, and was therefore contrary to, or an unreasonable application of, clearly established federal law.” (Id.) Respondent argues that this ground for relief lacks merit because “[t]he Court of Appeals' determination of this issue is entitled to deference by this Court; and, that determination . . . is fully supported by the record.” (Dkt. No. 12 at 18.) For the reasons set forth in greater detail below, the undersigned agrees with Respondent.
In South Carolina, “murder” is defined as “the killing of any person with malice aforethought, either express or implied.” S.C. Code Ann. § 16-3-10.
A. Evidence Against Petitioner
Because Petitioner's first ground for relief relates to the sufficiency of the evidence against him, the undersigned finds a review of this evidence instructive. As background, Steward, Petitioner's grandfather, was murdered on October 27, 2008. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) He was shot ten times with a semi-automatic pistol. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) He was found sometime around 12:30 p.m. lying on the ground next to his car, which was parked on the right side of a rural road in Colleton County with the emergency flashers on and the trunk open. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) On Steward's body, police found one-hundred and thirty-nine (139) dollars and a wristwatch. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) His wallet was found in the console of the car, as well. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.)
1. Petitioner's Statements
Petitioner provided various statements to police in the wake of Steward's murder. First, he claimed that he woke up at 10 a.m. on the day of the murder and that Steward (with whom Petitioner lived) was not home. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Petitioner stated that Steward returned to the house around 11:30 a.m. carrying plastic bags. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Petitioner stated that he left the house at 11:45 a.m. to meet up with his cousin, but his cousin called and changed their plans. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Petitioner went to the barber shop to get a haircut instead. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) He stayed there for thirty (30) to forty (40) minutes. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) While at the barber shop, Petitioner's other cousin called to tell him that Steward was murdered. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.)
Soon after his first statement, Petitioner gave a second statement to law enforcement. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Petitioner's second statement was essentially the same as his first, though he clarified that he stopped for gas and went to an unemployment office before heading to the barber shop. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.)
After giving this second statement, law enforcement asked Petitioner to consent to a GSR test of his hands, and to a search of his car. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Petitioner did not consent. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Law enforcement eventually searched Petitioner's car, but the search does not appear to have resulted in any evidence. (Dkt. No. 12-1 at 112-13.)
Several months later, Petitioner gave two more statements to law enforcement which were essentially the same as his October 2008 statements. (Dkt. No. 12-1 at 3-270; Dkt. No. 122 at 1-186.) On February 24, 2009, police informed Petitioner that his story did not make sense. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Specifically, Petitioner made a cell phone call to his house on the morning Steward was killed, even though he claimed to be home at the time of the call. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Petitioner said that he sometimes did that and did not change his story. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.)
Days later, Petitioner was arrested for financial identity fraud based on a car payment he made using his grandfather's bank account information. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) After he was arrested, Petitioner requested to speak with law enforcement. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) He was brought to the Sheriff's Department for an interview on February 27, 2009. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) During the interview (which was recorded on videotape), Petitioner provided an entirely new story. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) He claimed that he woke to a man dressed in all black on the morning of his grandfather's murder. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1186.) Petitioner claimed that this man held a gun to his head and directed him to get out of bed and go into the living room where his grandfather and two other men wearing all black were standing. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Petitioner could not identify the race of the men because of how they were dressed. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Petitioner claimed that the men asked his grandfather for money, but he refused to give them anything. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) One of the men then demanded Petitioner's car keys and drove off in Petitioner's Mustang, which was white with black rims, black racing stripes, loud pipes, and a spoiler. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) The man returned approximately twenty minutes later. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) When he returned, the men told Petitioner and Steward they were all going to take a ride to BB&T Bank in Walterboro. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.)
The men then escorted Petitioner and Steward out of the house and into Steward's silver Ford Focus. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Steward was in the driver's seat, one of the men dressed in black was in the passenger's seat, Petitioner and another man dressed in black were in the backseat, and one man dressed in black stayed at the house. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Petitioner claimed that, while Steward was driving to the bank, the men continually asked him for money, but he refused to comply. (Dkt. No. 12-1 at 3270; Dkt. No. 12-2 at 1-186.) Petitioner claimed that Steward then pulled over on the side of Bethel Road. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) The men and Steward exited the car, while Petitioner remained in the backseat. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Petitioner overhead an altercation between Steward and the men, then heard several gunshots. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.)
After hearing gunshots, Petitioner saw his Mustang pull up, driven by the third man who had stayed behind at the house. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Another “dark vehicle” pulled up, driven by a fourth man. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) All of the men got into the dark vehicle. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Before they left, one of the men told Petitioner “this is what happens when you don't cooperate and if you tell anyone what happened, then I'll harm you, your sister, and your mom.” (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) The men left, leaving Petitioner in the backseat and the keys in his Mustang. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Petitioner got into his Mustang and drove to the barber shop to get a haircut, calling the barber on the way. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) When asked why he had not mentioned this story earlier, Petitioner said he was scared and worried about the safety of his mother. (Dkt. No. 12-1 at 3270; Dkt. No. 12-2 at 1-186.)
2. Witness Testimony
The State presented several witnesses at trial. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Kevin Nettles, a local resident living at the corner of Bethel Road and Red Root Road, testified that on October 27, 2008, the day of the murder, he had been waiting for a ride to the logger woods, but the logging truck did not come because it was hazy and rainy. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) He therefore went to cut grass with his son around 10:30 or 11:00 a.m. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) While getting ready to cut the grass and helping his son, he repeatedly heard a loud car racing up and down the road. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Nettles stated that the car was a white or cream-colored Mustang. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Nettles stated that he saw the car four or five times, and that the car had loud pipes and dark windows. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) He stated that the car went up and down Red Root Road, and a short distance on Bethel Road. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.)
Police also spoke to Ricky Breland, a local resident living on Bethel Road. (Dkt. No. 121 at 3-270; Dkt. No. 12-2 at 1-186.) Breland testified that, on the day of the murder, he saw a Mustang on the road five or six times that morning. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1186.) Breland stated that the car drove very slowly and that “where it went it wasn't gone very long, it was right back.” (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) He recalled that the car was a white Ford Mustang with stripes and blacked-out rims. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Breland stated he was outside getting ready to cut the grass around 9:00 a.m. and he noticed the car because it was driving very slowly, as if looking for something, and came back several times. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) He stated that he thought the car might be driving slowly because the driver wanted to stop and talk to him. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Breland stated that the car was driving back and forth on the street throughout the entire hour and a half it took to cut his grass, at intervals about twenty to thirty minutes apart. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.)
Tyrone Kinard, a truck driver and logger, also testified. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) He stated that he was driving a truck and logging on Red Root Road, less than half of a mile from Bethel Road, on the morning of Steward's murder. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) At around 11:30 a.m., he was standing by the road when a white Mustang with black stripes drove down the road and came back. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) He stated the Mustang did this several times, in fifteen-to-twenty-minute intervals. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) He stated that shortly after what he thought was the Mustang's last trip down, he saw Steward drive by (around 11:45 a.m.) in a silver Ford. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Kinard stated that he could see inside the car and saw that it was Steward, whom he knew. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Kinard stated that Steward was alone in the car. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Kinard said that he had a clear view because he was standing close to the white line of the roadway, waiting while his truck was being loaded. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Kinard stated that he waved to Steward, but Steward did not see him. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Kinard stated that Steward drove by only the one time, and that he was not sure whether the white Mustang drove back, but he left the area shortly after he saw Steward's car. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.)
Petitioner's cousin, Roger Akeem Shider, testified at Petitioner's trial, as well. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Shider testified that he woke up at 7:00 a.m. on the morning of Steward's murder to crank up his grandmother's car, and then went back to sleep until about 12:00 or 1:00 p.m. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) He then went to an auto-parts store to get a part for his car and went to his previous place of employment, New York Wire, to see if he could get his job back. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Shider testified that he later received a phone call from Petitioner, who told him that his grandfather was killed. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Shider testified that he had not called Petitioner earlier that day, nor had Petitioner called him. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Indeed, Shider denied speaking with Petitioner on the morning of October 27, 2008. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Shider confirmed that he was supposed to go to Beaufort with Petitioner on the 27th, and that they had been talking about the trip for several days but stated that he had not talked to Petitioner on the day of Steward's murder. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.)
Petitioner's barber, John Yates, testified that he received a call from Petitioner around 12:40 p.m. on the day of the murder to tell him that Petitioner was coming to get a haircut. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) He said that everything sounded normal during this call. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Yates stated that Petitioner arrived at the barber shop around 1:00 p.m. and left around 1:40 p.m., after receiving a phone call informing him that his grandfather was killed. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Yates stated that Petitioner went back to the barber shop later that day to tell him what happened, and that Petitioner was very upset. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.)
3. Murder Weapon
The police did not uncover the murder weapon; they did, however, find several fired shell casings on the ground near Steward's body. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) The fired shell casings were submitted to South Carolina Law Enforcement Division (“SLED”) for testing, and matched a gun belonging to Petitioner's cousin, Bobby Varn. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.)
At trial, Varn testified that he owned a nine-millimeter pistol that was reported stolen in December of 2007. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) He stated that the gun was stolen from his vehicle while he was working at New York Wire, where Petitioner also worked. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Varn stated that he worked first shift and Petitioner worked third shift, and that he checked that the gun was in his glove box before he started work on the day it was stolen. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) When he got off work and noticed that the gun was gone, he called the police and made a report. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Varn noted that a window was broken in his vehicle, making it easier to get into his car. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) At the time the gun was stolen, the defective window was down a “little crack.” (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Varn testified that the security cameras in the parking lot did not cover the area where he was parked. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) He further testified that he was working from 8:00 a.m. to 4:00 p.m. on the day of Steward's murder, and that he had turned over a test fired shell casing (which had come from the manufacturer with his gun to show that it worked properly) to a detective investigating Steward's murder. (Dkt. No. 121 at 3-270; Dkt. No. 12-2 at 1-186.) The casing was logged into evidence and submitted to SLED for examination and comparison to the fired casings at the crime scene. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) The casings were found to be from the same weapon. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.)
4. Other Evidence
As noted, Steward's body was discovered in the early afternoon on October 27, 2008, lying on the ground next to his car, which was parked on the right side of a rural road in Colleton County (headed away from the most direct route to Walterboro). (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Steward was shot ten times with a semi-automatic pistol. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) The autopsy report noted that two of Steward's gunshot wounds were on his left arm and left hand, both superficial. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1186.) Eight of the gunshot wounds were to Steward's torso: one above his collar bone; one in the middle of the chest, on the right; and six across his back. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Steward's wounds were consistent with him putting his left arm up in defense, being shot in the chest and torso, then turning and being shot in the back. (Dkt. No. 12 at 44.) Upon processing Steward's car, police also found a bullet that had entered the car from the rear passenger seat from the direction of the open trunk. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1186.)
B. State Court Decision
In ruling on Petitioner's motion for directed verdict on his murder charge, the trial court heard arguments from both sides before concluding:
Mr. Beach, at this stage on the murder indictment, your motion for directed verdict is respectfully denied. I believe I have to take the evidence in the light most favorable at this stage, as you know, to the non-moving party And I'm looking not to the weight of the evidence, but the existence or non-existence of the evidence. I mean, you certainly have the right to argue to the jury about a lack of motive, which I'm certain, knowing you, Mr. Beach, we've been together a long time as lawyers, long before I was on the bench, that you will take advantage of every opportunity to protect the interest of your client.
On the other side of that fence, Mr. Beach, your motion is more addressed to the weight of the evidence, rather than the existence. And the standard that I must use at this point is the existence of evidence or non-existence, as you well know, so that motion is denied.(Dkt. No. 12-2 at 103-04.)
On appeal, the South Carolina Court of Appeals affirmed the trial court's decision to deny Petitioner's motion for directed verdict in a per curium, unpublished decision. (Dkt. No. 12 4 at 38.) In doing so, the Court of Appeals stated:
This appeal arises from Appellant Andre Richardson's conviction for murder and financial identity fraud. On appeal, Richardson argues the trial court erred by denying his motion for a directed verdict on the murder charge because the State failed to present sufficient circumstantial evidence Richardson murdered his grandfather. We affirm pursuant to Rule 220(b), SCACR, and the following authorities: State v. McHoney, 344 S.C. 85, 97, 544 S.E.2d 30, 36 (2001) (“On appeal from the denial of a directed verdict, an appellate court must view the evidence in the light most favorable to the State.”); State v. Garvin, 341 S.C. 122, 125, 533 S.E.2d 591, 592 (Ct. App. 2000) (providing that although the trial court should grant a motion for a directed verdict when the evidence merely raises a suspicion of the accused's guilt, the trial court must submit the case to the jury if any direct or substantial circumstantial evidence exists that reasonably tends to
prove the accused's guilt); State v. Lollis, 343 S.C. 580, 584, 541 S.E.2d 254, 256 (2001) (noting when the State relies exclusively on circumstantial evidence, the trial court “is required to submit the case to the jury if there is any substantial evidence which reasonably tends to prove the guilt of the accused, or from which his guilt may be fairly and logically deduced”); State v. Pace, 337 S.C. 407, 415, 523 S.E.2d 466, 470 (Ct. App. 1999) (“As a general rule, any act or conduct on the part of the accused is admissible as some evidence of consciousness of guilt.”); United States v. Burgos, 94 F.3d 849, 867 (4th Cir. 1996) (“Relating implausible, conflicting tales to the jury can be rationally viewed as further circumstantial evidence indicating guilt.”); State v. Trull, 571 S.E.2d 592, 599 (N.C. Ct. App. 2002) (noting “evidence of a defendant's refusal to submit to a lawful testing or identification procedure has been held admissible when offered as circumstantial evidence of guilt”); id. (holding the trial court did not err in admitting evidence that the defendant refused to submit to a gunshot residue test).(Dkt. No. 12-4 at 38.)
C. Analysis
Claims that a directed verdict should have been granted based on insufficiency of evidence are cognizable in habeas actions as claims of a denial of due process. See Gorman v. Yedell, No. 4:22-cv-01036-HMH-TER, 2022 WL 18215812, at *6 (D.S.C. Dec. 13, 2022), adopted, 2023 WL 144913 (D.S.C. Jan. 10, 2023). However, review of such claims is “‘sharply limited.'” Wilson v. Greene, 155 F.3d 396, 405 (4th Cir. 1998) (quoting Wright v. West, 505 U.S. 277, 296 (1992)). Whether evidence is sufficient for a directed verdict is a matter for the state court to decide, and the court will not grant relief based on the state's own standards for sufficiency of the evidence. See Gorman, 2022 WL 18215812 at *6, n.5 (citing Wilson, 155 F.3d at 407). When reviewing a state court's ruling on a direct verdict motion or similar challenge to sufficiency of evidence to convict, district courts must give significant deference to the state court's determinations because “[f]ederal review of the sufficiency of evidence to support a state conviction is not meant to consider anew the jury's guilt determination or to replace the state's system of direct appellate review.” Wilson, 155 F.3d at 405-06. Accordingly, “a defendant is entitled to relief only if ‘no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 324 (1979)). Where there are conflicting inferences, the reviewing court must presume “‘that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'” McDaniel v. Brown, 558 U.S. 120, 133 (2010) (per curiam) (“Jackson requires a reviewing court to review the evidence ‘in the light most favorable to the prosecution.'” (quoting Jackson, 443 U.S. at 319)).
Here, the undersigned finds that the state court did not err in its consideration of Petitioner's directed verdict motion. At trial, the State presented evidence undermining Petitioner's statements to law enforcement. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) The State presented various witnesses who undercut Petitioner's stories, including witnesses who saw Petitioner's car driving in the area of the murder, at the time of the murder. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) The State also presented evidence showing that Petitioner had the means and opportunity to obtain the murder weapon, and that Petitioner used his grandfather's bank account to make a car payment after he had died. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.)
It is the jury's role-not this Court's-to weigh the evidence and assess credibility. See Burgess v. Maston, No. 2:16-cv-10949, 2021 WL 2272930, at *14 (S.D. W.Va. Mar. 9, 2021) (finding that the Supreme Court of Appeals of West Virginia did not err in denying the petitioner's motion for directed verdict), adopted, 2021 WL 2269468 (S.D. W.Va. June 3, 2021); see also Williams, 494 F.3d at 490 (holding that state supreme court's affirmation of jury verdict based on circumstantial evidence was not objectively unreasonable under Jackson); Coleman, 566 U.S. at 650 (highlighting the deference given to jury conclusions under Jackson); Cavazos v. Smith, 565 U.S. 1 (2011) (applying the Jackson standard to reinstate a state jury verdict despite considerable discrepancy in the narratives presented by the defense and prosecution and a lack of conclusive evidence). Indeed, “[t]he Constitution does not require that all evidence presented to a jury be indicative of the defendant's guilt in order to sustain a conviction; the presentation of conflicting evidence and competing narratives is a hallmark of the adversarial system of law.” Burgess, 2021 WL 2272930, at *14.
Here, a reasonable factfinder could have found Petitioner's version of the facts incredible, especially when considering that he made five statements to police before changing his story. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) A reasonable factfinder could have also concluded that: (1) Petitioner took the murder weapon from his cousin's car; (2) Petitioner convinced his grandfather to pull over on the side of a rural road; (3) Petitioner shot and killed his grandfather; and (4) Petitioner used his dead grandfather's money to pay off his car. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) As such, Petitioner has failed to show that the evidence against him was so insufficient such that no rational trier of fact could have found him guilty of murder beyond a reasonable doubt. See Wilson, 155 F.3d at 405-06 (noting that this Court's “review of the sufficiency of evidence to support a state conviction is not meant to consider anew the jury's guilt determination or to replace the state's system of direct appellate review,” and that “a defendant is entitled to relief only if ‘no rational trier of fact could have found proof of guilt beyond a reasonable doubt'”). Further, the record before the Court does not support a finding that the state court's denial of Petitioner's directed verdict motion was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or 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). Petitioner's request for habeas relief must therefore be denied.
Petitioner argues that the South Carolina Court of Appeals improperly considered Petitioner's refusal to consent to the GSR test when finding that the trial court did not err in denying Petitioner's motion for directed verdict on the murder charge, based on the Court of Appeals' reference to State v. Trull, 571 S.E.2d 592, 599 (N.C. Ct. App. 2002). (Dkt. No. 1 at 13.) Even assuming the Court of Appeals erred in this manner, Ground One still lacks merit because a rational factfinder could have found Petitioner guilty of murder based on the other evidence presented at trial. (See Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186; see also supra at 25-26.)
Given the record and the highly deferential standard under which this Court must consider the state court's decision, the undersigned RECOMMENDS that Respondent's Motion for Summary Judgment (Dkt. No. 13) be GRANTED as to Ground One.
II. Ground Two
Petitioner's second ground for relief also lacks merit, as Petitioner has failed to demonstrate that the PCR court erred. As noted, Petitioner challenges the PCR court's determination that his trial counsel was not ineffective for failing to move to suppress or object to testimony and argument that Petitioner refused to consent to a warrantless search of his car and a GSR test of his hands in violation of his rights under the Fourth, Sixth, and Fourteenth Amendment. (See generally Dkt. Nos. 1, 16.)
Under the Sixth Amendment, Petitioner, as a criminal defendant, had a right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). Petitioner may prove ineffective assistance of counsel by showing that his attorney's performance was deficient, and that such deficiency prejudiced him. Id. at 687. An attorney's performance is deficient if it was unreasonable under the circumstances of the case and under then-prevailing professional norms. Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). Prejudice is a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable probability” means “a probability sufficient to undermine confidence in the outcome.” Kimmelman, 477 U.S. at 384.
Strickland is highly deferential to counsel, and § 2254(d) is highly deferential to state courts. Harrington, 562 U.S. at 105. That means when a state court has adjudicated an ineffective assistance claim on the merits, this Court's review is “doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). In other words, the question becomes “not whether counsel's actions were reasonable,” but “whether there is any reasonable argument that [Petitioner's] counsel satisfied Strickland's deferential standard.” Harrington, 562 U.S. at 105.
Subsection 2254(d)'s standards are to be applied to the decision from the highest state court to decide the claim at issue on the merits. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). When the highest state court rules summarily, the federal habeas court should “look through” that unexplained decision to the last state-court decision that provides a relevant rationale, and “should then presume that the unexplained decision adopted the same reasoning.” Id. In this case, the PCR court was the only state court to issue a reasoned decision on Petitioner's second ground for relief. As such, the undersigned considers the PCR court's reasoning in analyzing this claim.
Here, the PCR court considered Petitioner's ineffective assistance of counsel claim and determined that Petitioner could not meet either prong of the Strickland test. (Dkt. No. 12-4 at 118-24.)More specifically, the PCR court explained:
As Respondent correctly notes, the PCR court's Order misstated certain factual elements of Petitioner's case when conducting this analysis. (Dkt. No. 12-4 at 115-26.) For example, the PCR court stated that Petitioner and Steward were driven to a “remote location in the woods” instead of the side of a rural road, that Petitioner used Steward's credit card instead of his bank account information, and that Petitioner's car was searched “numerous times.” (Dkt. No. 12-4 at 115-26.) These misstated facts do not, however, bear on the sufficiency of the PCR court's overall analysis of Petitioner's ineffective assistance of counsel claim.
The grounds alleged by Applicant are ineffective assistance of trial counsel for failing to suppress testimony concerning Applicant's refusal to consent to a search of his vehicle and refusal to consent to a GSR kit examination. The Court finds these grounds are both related to trial counsel's failure to object to Gantt violations in direct testimony taken at trial and during the solicitor's closing argument. The alleged violations occur at the same time and involve the same subject matter. Therefore, the Court will handle both allegations as one issue.
At the evidentiary hearing, Respondent conceded there was a potential Gantt violation. Respondent argued trial counsel's lack of objection was a strategic decision not to object to the Gantt violation. Respondent argued this was a reasonable trial strategy and consistent with trial counsel's theme throughout the trial; law enforcement failed to obtain any forensic evidence. Respondent also argued if trial counsel was deficient there was no prejudice. Thus, trial counsel's failure to properly object and preserve the issue for appeal would be excused....
This Court finds trial counsel's lack of objection to the Gantt violation was a decision, not a mistake. Trial counsel is deceased and, therefore, unable to testify in his own defense. The Court strongly presumes trial counsel's decisions were reasonably made. When trial counsel cannot be present to defend their strategy, all articulable arguments, which can be inferred from the transcript as trial
strategy, can be argued in favor of competence. “A strategic or tactical decision does not have to be articulated by counsel on the record; counsel doesn't to have to personally identify his or her thinking. It is enough that the record show a basis for strategy, not that counsel announce that strategy on the record.” Wood v. Allen, 558 U.S. 290, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010). Strickland itself recites that there are countless ways to provide effective assistance and even the best lawyers would not defend a particular client in the same way. 466 U.S. at 689. When counsel focuses on some issues to the exclusion of others, there is a strong presumption of doing so for tactical reasons rather than sheer neglect, Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1,5, 157 L.Ed.2d 1 (2003).
In the transcript, trial counsel's cross-examination and closing argument show his strategy was to attack the State's lack of direct evidence. The State had no direct evidence to convict Applicant. On cross-examination, trial counsel pinned this lack of evidence on the failure of law enforcement to obtain it. “[A]ny attempt to attain any fingerprints or anything like that from the house? Any forensic evidence from the house that would bear on this statement?” App. p.340. In closing argument, trial counsel argued the lack of evidence failed to overcome the State's burden of guilt beyond a reasonable doubt. “[Y]ou have to have something to convict somebody of murder. You have to have real evidence, not that circumstantial evidence isn't real evidence, but you have to have evidence that adds up to he did it beyond a reasonable doubt. Most cases are a lot simpler. Most cases you've got somebody pointing at him saying he did it or you've got a big old pile of forensic evidence, fingerprints, DNA, and all this stuff that you see on CSI and programs like that that point to that person. You don't have that here.”
Trial counsel cross-examined Detective Allen Inabinett on Applicant's refusal to consent to a GSR kit. During cross-examination, trial counsel exposed the fact for the GSR kit to be accurate it must be completed within six hours of the gunshot. Law enforcement did not attempt to obtain the GSR kit from Applicant until more than eleven hours after the gunshot. Thus, the test would have been inconclusive and of no evidentiary value.
Q: I believe you said you had offered a gunshot residue test to the defendant and he had refused to take it?
A: I did. That was the night of 10-27-08.
Q: And about what time was that?
A: Between 11:45 and then midnight to the early morning hours of 10-28-08.
Q: And what time did the, to the best of your knowledge, did this shooting occur?
A: We had an approximate timeframe of 12:50 p.m. Well, let me back up, between 12:30 and 12:50 pm, approximately, on the afternoon of 10-27-08.
Q: Isn't it true that gunshot residue dissipates after about six hours?
A: That's approximately correct. Yes, about six hours.App. p.328-329.
The testimony elicited by trial counsel was not available without opening the door for the State to question the witness about Applicant's lack of consent. It can be reasonably inferred from the transcript, trial counsel made the strategic decision to use Applicant's refusal to consent to show law enforcement failed to obtain any forensic evidence. App. p.342. Applicant's refusal of the GSR kit was of no evidentiary value because of its inherent faultiness due to the timeframe. Applicant's refusal to consent to a vehicle search was cured by law enforcement processing his vehicle numerous times without any evidence being found. The Court finds Applicant's silence was used by trial counsel as a shield to defend his client. The Court finds Applicant has failed to prove the strategy was unreasonable.(Id.)
On this record, the state court's rejection of Petitioner's claim of ineffective assistance of counsel is not contrary to, or an unreasonable application of, clearly established federal law, nor was the state court's decision based on an unreasonable determination of the facts. See Harrington, 562 U.S. at 105 (noting that when § 2254(d) applies, “the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.”). Rather, the PCR court considered Petitioner's claim that his trial counsel was ineffective in failing to move to suppress or object to the testimony and argument that Petitioner refused to consent to a warrantless search of his car and GSR test of his hands, provided a rational interpretation of the record, and reasonably applied the law to the facts. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186; Dkt. No. 12-4 at 118-24.)
The PCR court first considered the entire record to better understand trial counsel's intentions, since trial counsel was unable to testify regarding those intentions. (Dkt. No. 12-4 at 118-24); see Wood v. Allen, 558 U.S. 290, 301-02 (2010) (holding that a strategic or tactical decision does not have to be articulated by counsel on the record; it is enough that the record shows a basis for strategy); see also Jackson v. Kendall, No. 5:22-cv-402-MGL-KDW, 2022 WL 19404454, at *12 (D.S.C. Dec. 28, 2022) (explaining that “trial counsel was not required to announce her strategy; it was enough that the record shows a basis for strategy”), adopted, 2023 WL 2325992 (D.S.C. Mar. 2, 2023), appeal dismissed, 2023 WL 8919671 (4th Cir. Dec. 27, 2023). The PCR court then reasonably determined-based on the record before it-that trial counsel's failure to move to suppress or object to the relevant testimony and argument was a strategy, not an error. (Dkt. No. 12-4 at 118-24.) In doing so, the PCR court explained that trial counsel's strategy was to show that law enforcement had failed to properly investigate Petitioner's case, creating an absence of forensic evidence linking Petitioner to the murder. (Dkt. No. 12-4 at 118-24.) The PCR court concluded that trial counsel's intention in not objecting to the testimony and argument at issue here was to highlight law enforcement's errors and the resulting lack of direct evidence. (Dkt. No. 12-4 at 118-24.) The PCR court supported this conclusion with trial counsel's cross-examination of Detective Inabinett and excerpts from his closing statement. (Dkt. No. 12-4 at 118-24.) The record before this Court-including the trial transcript and the transcript of the hearing conducted pursuant to Jackson v. Denno, 378 U.S. 368 (1964)-can be reasonably interpreted in support of the PCR court's conclusion. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) Thus, contrary to Petitioner's claims, the PCR court's interpretation of the record was not an unreasonable one. See Valentino v. Clarke, 972 F.3d 560, 580 (4th Cir. 2020) (noting that “[t]he question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable-a substantially higher threshold” (citation and internal quotation marks omitted)).
Prior to trial, the parties requested an in camera hearing pursuant to Jackson v. Denno, 378 U.S. 368 (1964), regarding the admissibility of certain statements made by Petitioner to law enforcement. (Dkt. No. 12-1 at 63.) During that hearing, Petitioner's trial counsel uncovered that Detective Inabinett would testify regarding Petitioner's refusal to consent to a GSR test and car search, and that he could elicit testimony from Detective Inabinett stating that the GSR test was not offered within the appropriate window and that the police uncovered nothing during their eventual search of Petitioner's car. (Dkt. No. 12-1 at 110.) As such, the hearing transcript supports the PCR court's determination that trial counsel's failure to object to Detective Inabinett's trial testimony regarding Petitioner's refusal to consent to the searches was a strategic decision, as opposed to an unintentional mistake.
Even assuming that Petitioner's trial counsel erred, Petitioner's second ground for relief still lacks merit because the PCR court reasonably concluded that Petitioner failed to show that he would have been prejudiced by the error. (Dkt. No. 12-4 at 121-24.) The PCR court found no reasonable probability that, but for counsel's failure to object to or move to suppress the relevant testimony and arguments, the result of Petitioner's trial would have been different. (Id.)
In so determining, the PCR court noted that commentary regarding Petitioner's refusal to consent to the GSR test and car search was limited in nature and duration. (Id.) The PCR court further noted that the State “mentioned the lack of consent in concert with other voluntary statements Applicant presented to law enforcement.” (Id.) The PCR court then explained that Petitioner's “exculpatory accounts were totally implausible” and that “the evidence of Applicant's guilt was overwhelming,” given that Petitioner “gave multiple statements to law enforcement, all of which were disproven by witnesses” and that Petitioner placed himself at the murder scene, used his grandfather's money after his death, and had access and opportunity to take the murder weapon from his cousin. (Id.) The PCR court highlighted that “[t]he only reasonable explanation is that Applicant committed the murder and told successive lies to cover it up.” (Id.) The PCR court also noted that the State's case centered on Petitioner's “voluminous implausible testimony,” not Petitioner's refusal to consent to the searches. (Id.) Accordingly, the PCR court concluded that Petitioner had failed to show it was “reasonably likely” that he would not have been found guilty if his trial counsel had objected to or moved to suppress the testimony and argument relating to such refusal. See Harrington, 562 U.S. at 111 (“Strickland asks whether it is ‘reasonably likely' the result would have been different.” (citing Strickland, 466 U.S. at 693)); Cagle v. Branker, 520 F.3d 320, 324-25 (4th Cir. 2008) (“[F]or a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear.”).
The PCR court's conclusion is again discernable from record. The trial transcript reflects that the State's case focused on undermining Petitioner's kidnapping story through witness testimony. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) The references to Petitioner's refusal to consent to a GSR test and car search were limited, and that refusal was not a significant aspect of the State's case. (Dkt. No. 12-1 at 3-270; Dkt. No. 12-2 at 1-186.) As such, the PCR court made a reasonable determination that Petitioner failed to establish prejudice. See Harrington, 562 U.S. at 111 (“In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently.”); Valentino, 972 F.3d at 580 (noting that “[t]he question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable-a substantially higher threshold” (citation and internal quotation marks omitted)); see also Alvarado v. Riley, No. 2:09-cv-1035-PMD, 2009 WL 3823041, at *8 (D.S.C. Nov. 13, 2009) (denying habeas relief where PCR court concluded petitioner's counsel was deficient for failing to object to testimony about petitioner's refusal to consent to a vehicle search, but petitioner could not establish prejudice in light of the other evidence presented).
Keeping in mind that this Court's review of a state court's adjudication of the merits of an ineffective assistance claim is “doubly deferential,” Knowles, 556 U.S. at 123, the undersigned finds that Petitioner has failed to show that the PCR court unreasonably applied federal law or unreasonably determined the facts based on the record before it. The undersigned therefore RECOMMENDS GRANTING Respondent's Motion for Summary Judgment (Dkt. No. 13) as to Ground Two, as well.
Certificate of Appealability
If the Respondent's summary judgment motion is granted, the District Judge will need to decide whether to issue a certificate of appealability. See Rule 11(a), Rules Governing § 2254 Cases. A certificate may be issued only upon a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a petitioner's constitutional claims have been denied on the merits, the petitioner must demonstrate that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citation and quotation marks omitted). The undersigned sees no reason to grant a certificate of appealability and would, therefore, recommend denying the certificate of appealability.
CONCLUSION
Based on the foregoing, the undersigned RECOMMENDS that the Court GRANT Respondent's Motion for Summary Judgment (Dkt. No. 13). The undersigned further RECOMMENDS that the Court DISMISS this case with prejudice and DECLINE to issue a certificate of appealability.
IT IS SO RECOMMENDED.
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 835
Charleston, South Carolina 29402
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).