Opinion
2:22-cv-01863-JDA-MGB
10-01-2024
Edward W. Stackhouse, Jr., Petitioner, v. Warden Kenneth Nelson, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE
Edward W. Stackhouse, Jr. (“Stackhouse”), a state prisoner proceeding pro se, seeks habeas corpus under 28 U.S.C. § 2254. (Dkt. No. 1.) This matter is before the Court on the Warden's Motion for Summary Judgment. (Dkt. No. 49.) Under 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to rule on any pretrial motions and to make recommendations to the District Judge on the Motion for Summary Judgment.
Stackhouse initiated this action on June 13, 2022 by filing his petition and memorandum in support of the petition. (Dkt. Nos. 1, 1-1.) The petition presented four grounds for relief and the memorandum advanced an additional ten claims, some of which appeared to be related to the grounds in the petition. (See Dkt. Nos. 1 at 5, 7, 8, 10; 1-1 at 1.) The Warden filed responsive briefing and moved for summary judgment. (Dkt. Nos. 16, 17.) However, the Warden's return only addressed the allegations in Stackhouse's memorandum, not his petition. (See generally Dkt. No. 16.) Stackhouse filed a response opposing the Warden's motion. (Dkt. No. 30.) In his Response, Stackhouse noted the Warden “failed to include and respond to [his] Martinez claim for ineffective assistance of PCR counsel,” but did not otherwise indicate the Warden had misconstrued his claims. (See id. at 1-9.)
On May 30, 2023, the undersigned issued a Report and Recommendation. (Dkt. No. 31.) Based on the undersigned's reading of the filings, the Report and Recommendation addressed the claims raised in Stackhouse's memorandum and recommended granting the Warden's Motion for Summary Judgment as to those claims. (See id. at 6-7.) In his objections to the Report and Recommendation, Stackhouse asserted the Report failed to address all of his allegations of ineffective assistance of PCR counsel brought under Martinez v. Ryan, 566 U.S. 1 (2012). (Dkt. No. 39 at 2.) After reviewing both parties' objections, the Honorable Sherri A. Lydon vacated the Report and Recommendation, directed Stackhouse to clarify which claims raised in his petition were not addressed in the Report, and dismissed the Warden's Motion for Summary Judgment with leave to refile after Stackhouse submitted his clarification. (Dkt. No. 40.)
Stackhouse subsequently filed a document listing eight claims of ineffective assistance of PCR counsel. (Dkt. No. 42.) On November 21, 2023, the Warden refiled his Motion for Summary Judgment, along with an amended Return and Memorandum. (Dkt. Nos. 48, 49.) Stackhouse responded on January 8, 2024. (Dkt. No. 54.) The Warden did not file a reply and the time to do so has now expired. Accordingly, this matter is ripe for disposition.
For the reasons set forth below, the undersigned recommends granting the Warden's motion and dismissing this case with prejudice.
BACKGROUND
On September 17, 2010, Stackhouse and his wife, Sharon Stackhouse, got into an argument. The argument woke up Sharon's two teenage sons, Daquan and William, who ran to Sharon's room to see what was happening. Daquan confronted Stackhouse and William ran for help. Stackhouse had a knife and Daquan and Sharon suffered stab wounds. Sharon died from her injuries and Daquan was airlifted to a hospital but survived.
In February 2011, a Marion County Grand Jury indicted Stackhouse for murder, attempted murder, and possession of a weapon during the commission of a violent crime. (Dkt. No. 16-3 at 96-97.) Stackhouse was represented by Scott P. Floyd and tried before the Honorable William H. Seals, Jr., and a jury on May 15, 2012. (Dkt. No. 16-1 at 3.) The jury found Stackhouse guilty of murder and the associated weapon charge and not guilty of attempted murder, finding instead that he committed the lesser included offense of assault and battery of a high and aggravated nature (“ABHAN”). (Dkt. No. 16-2 at 180.) Judge Seals sentenced Stackhouse to life imprisonment for murder, twenty years for ABHAN, and five years for the weapon charge. (Id. at 185.)
Through counsel, Stackhouse filed a timely appeal presenting one issue:
Whether the court erred by admitting testimony from Officer Alford that the decedent's child told him “Edward Stackhouse killed my momma” since his testimony was highly prejudicial hearsay since it implied appellant's acts were deliberate and not self-defense?(Dkt. No. 16-2 at 190.) Appellate counsel also filed an Anders brief, petitioning to be relieved as counsel. (Id. at 198.) Stackhouse filed a pro se brief in support of his appeal arguing the trial court erred in denying his motion for directed verdict and not allowing Stackhouse to submit written witness statements to the jury. (Dkt. No. 16-5 at 2.) The South Carolina Court of Appeals dismissed the appeal and granted counsel's motion to be relieved on February 5, 2014. State v. Stackhouse, No. 2014-UP-051 (S.C. Ct. App. Feb. 5, 2014); (Dkt. No. 16-2 at 201-02.). The matter was remitted to the lower court on February 24, 2014. (Dkt. No. 16-6.)
Stackhouse filed a pro se application for post-conviction relief (“PCR”) on March 11, 2014, presenting various claims of ineffective assistance of counsel. (Dkt. No. 16-2 at 203-11.) Stackhouse was subsequently appointed counsel, Jonathan D. Waller, who filed an amended application alleging Stackhouse's trial counsel was ineffective for the following reasons:
a. Counsel was ineffective for failing to properly cross examine DNA expert to the presence of touch DNA.
b. Counsel was ineffective for failure to impeach victim with inconsistent statement.
c. Counsel was ineffective for failure to impeach William Brock with inconsistent statement.
d. Counsel was ineffective for failure to object to, and move to suppress, new testimony of witnesses not disclosed in discovery, as the failure to disclose the substance of the testimony constitutes a discovery violation.
e. Counsel was ineffective for failure to object to impermissible vouching for witness by solicitor.
f. Counsel was ineffective for failure to object to testimony of Adam Rogers as outside the scope of layman testimony.
g. Counsel was ineffective for failure to object to, and move to suppress, testimony of Kenny Davis. The complete contents of statements made by Applicant to Officer Davis were not disclosed in discovery nor were they testified to during the Jackson v. Denno hearing.
h. Counsel was ineffective for failing to object, and move for a mistrial, to the improper comments made by the State at the conclusion of the direct examination of Daquan B.
i. Counsel was ineffective for failure to object to impermissible comments made during State's closing arguments.
j. Counsel was ineffective for failing to conduct a complete investigation into the facts and circumstances surrounding Applicant's arrest, including his possession of a knife at the time of his arrest.
k. Counsel was ineffective for failure to allow Applicant to view surveillance video prior to its introduction at trial.
l. Counsel was ineffective for failing to provide Applicant with a copy of discovery in a medium that Applicant was able to view while detained.
m. Counsel was ineffective for failure to ensure Applicant had a complete understanding of the constitutional rights that Applicant was waiving by pleading guilty.
n. Counsel was ineffective for failure to investigate the facts and circumstances surrounding Applicant's statements to law enforcement for potential defense as a result of coercion by law enforcement.(Dkt. No. 16-2 at 219-20.) On January 30, 2018, the Honorable Michael G. Nettles conducted an evidentiary hearing. (Id. at 221.) At the hearing, Stackhouse added an allegation that his trial counsel was ineffective for failing to investigate and present a claim of self-defense. (Dkt. No. 16-3 at 34.) Judge Nettles denied relief and dismissed Stackhouse's application on November 6, 2018. (Id. at 73-95.)
At the evidentiary hearing, counsel clarified this allegation was a scrivener's error and withdrew it. (Dkt. No. 16-2 at 227-28.)
Stackhouse appealed and appellate defender Wanda H. Carter filed a Johnson petition for writ of certiorari on his behalf, arguing that trial counsel “erred in failing to object to the solicitor's improper vouching at closing argument when referencing the credibility of the state's two eyewitnesses in the case.” (Dkt. No. 16-7 at 3.) Stackhouse filed a pro se brief in support of the petition and argued his trial counsel was ineffective for failing to: (1) raise self-defense, (2) object to and move to suppress new witness testimony that was not disclosed in discovery, (3) move to suppress Stackhouse's statement to Chief Davis, (4) impeach Daquan and William with their prior statements, (5) contest that the knife introduced at trial was the one used in the murder, and (6) object to the solicitor's improper vouching in closing argument. (Dkt. No. 16-9 at 2-8.)
Pursuant to South Carolina Appellate Rule 243(1), the Supreme Court of South Carolina transferred the matter to the Court of Appeals, which denied counsel's petition to be relieved and ordered briefing on the issue of whether the PCR court erred in finding Stackhouse's trial counsel was “not ineffective for failing to object to the solicitor's closing argument as improper vouching when the State referenced the credibility of two eyewitnesses” and “any other questions of arguable merit.” (Dkt. No. 16-11.) The parties briefed the vouching issue, as well as whether trial counsel erred in failing to develop and present a claim of self-defense. (Dkt. Nos. 16-12, 16-13.) The Court of Appeals denied the petition on March 10, 2022 and remitted the case to the lower court on March 31, 2022. (Dkt. Nos. 16-14, 16-15.)
PROCEDURAL HISTORY
Stackhouse filed his pro se habeas petition in June 2022, raising the following grounds for relief in his form petition, quoted verbatim:
Ground One: Ineffective assistance of counsel
Supporting Facts: The PCR court correctly found trial counsel was ineffective for failing to object to the solicitor's closing argument on the basis of improper bolstering because state should have to prove the guilt beyond a doubt.
Ground Two: Prosecutorial misconduct violation
Supporting Facts: State failure to object to vouching and impermissible comments on state's closing argument and failure to object to state's improper comments upon conclusion of Daquan's direct examination
Ground Three: Due Process violation
Supporting Facts: The United States constitution guarantees a criminal defendant the right to present a complete defense
Ground Four: Vouching violation
Supporting Facts: Failure to object to vouching and impermissible comments in state's closing argument and failure to state's improper comments upon conclusion Daquan's direct examination(Dkt. No. 1 at 5, 7, 8, 10.) In addition to the form petition, Stackhouse filed a memorandum raising the following grounds of ineffective assistance of trial counsel:
(A) Petitioner was denied the effective assistance of counsel when counsel failed to adequately impeach and fully cross examine state witnesses, and suppress new testimony.
(B) Petitioner was denied the effective assistance when counsel failed to introduce impeaching evidence.
(C) Petitioner was denied the effective assistance of counsel when counsel failed to object to the states improper vouching of its own witnesses.
(D) Petitioner was denied the effective assistance of counsel when counsel failed to object to the states introduction of the murder weapon.
(E) Petitioner was denied the effective assistance of counsel when counsel failed to obtain independent expert witnesses.
(F) Petitioner was denied the effective assistance of counsel when counsel made damaging statements during closing argument.
(G) Petitioner was denied the effective assistance of counsel when counsel fail to object to statements concerning Jackson v. Denno hearing and impeach.
(H) Petitioner was denied effective assistance of counsel when counsel fail to prepare and argue self-defense.
(I) Petitioner was denied effective assistance of counsel when counsel fail to investigate facts behind possession of weapon and prepare a defense for coercion.
(J) Any procedural default by PCR counsel for failing to sufficiently raise any of the above issues is excused by Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309 (2012).(Dkt. No. 1-1 at 1.)
And, in response to the Court's order to clarify any claims that had not yet been addressed, Stackhouse identified the following allegations of ineffective assistance of PCR counsel:
(K) “[F]ailing to sufficiently raise the knife issue,” including a failure to introduce surveillance video showing Stackhouse leaving the apartment with his knife and failing to question Trial Counsel “concerning [Stackhouse] leaving the apartment with his knife.”
(L) “[F]ailing to raise damaging argument by trial counsel in closing arguments” admitting that Stackhouse was in the room where Sharon died and was holding the knife introduced at trial.
(M) “[F]ailing to sufficiently raise the new testimony issue by Daquan,” including a failure to introduce a photo of Daquan's bedroom to show Daquan could not have seen the hallway from his bed and a failure to argue the State was obligated to correct its witness's false testimony at trial.
(N) “[F]ailing to raise DNA on knife testimony by Ms. Boehm, [the] State's expert” in the following ways:
(i) PCR Counsel was “ineffective for failing to properly present or argue trial counsel failed to challenge the procedure used by [the State's] expert to test the DNA samples from the knife to the known standards.”
(ii) PCR Counsel “failed to argue several courts have held that DNA match evidence is inadmissible without reliable accompanying evidence as to the likelihood that the test could or could not exclude other individuals in a given population.”
(iii) PCR Counsel “fail[ed] to argue trial counsel failed to object to the admissibility of the entire testimony by the state's expert.”
(O) “[F]ailing to sufficiently raise the impeachment issue, introduce written statement to law enforcement, and argue [the] State had a duty to correct false or perjured testimony.”
(P) “[F]ailing to raise intoxication of the victim.”
(Q) “[F]ailing to raise the known standard from Daquan used to test DNA issue.”
(R) “[F]ailing to sufficiently raise the surveillance video issue.”(Dkt. No. 42.)
LEGAL STANDARD
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)).
For instance, state prisoners who challenge matters “adjudicated on the merits in State court” cannot get relief in federal court unless they show that the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law” announced by the Supreme Court or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” § 2254(d). That means a state court's ruling must be “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. 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).
The ultimate issue in this case is, of course, whether Stackhouse should receive habeas relief under these standards. However, the Warden's summary judgment motion and briefing presents narrower questions. Summary judgment is appropriate only if the moving party shows that “there is no genuine dispute as to any material fact” and that he 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). 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). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Viewing the habeas rules through the lens of Rule 56, the Court has three questions to answer at this juncture:
(1) Are there genuine issues of fact as to whether Petitioner's claims are properly before the Court?
(2) Are there genuine issues of fact as to the merits of Petitioner's claims?
(3) If the answer to either (or both) of the first two questions is “no,” is the Warden entitled to judgment as a matter of law?
In answering those questions, the undersigned has carefully considered the record before the Court.
DISCUSSION
Stackhouse alleges his trial and PCR counsel provided constitutionally ineffective assistance in a variety of ways. The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). A petitioner proves ineffective assistance by showing his attorney's performance was deficient and prejudicial to his defense. 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 requires showing 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 [Stackhouse'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 most of Stackhouse's claims. As such, the undersigned considers the PCR court's reasoning in analyzing Stackhouse. grounds for relief.
I. Ineffective Assistance of PCR Counsel
Stackhouse raises eight claims of ineffective assistance of PCR counsel. (Dkt. No. 42 at 1-9.) Stackhouse titled these allegations “Martinez Claim,” and, as such, the undersigned assumes Stackhouse relies on these assertions to overcome any procedurally defaulted claims of ineffective assistance by his trial counsel. (See id.); Martinez v. Ryan, 566 U.S. 1, 14-16 (2012) (holding ineffective assistance of PCR counsel may qualify as cause to excuse procedural default of a claim of ineffective assistance of trial counsel under certain circumstances). In that regard, the undersigned has considered Stackhouse's ineffective assistance of PCR counsel claims in the procedural default analysis below.
To the extent Stackhouse is asserting independent claims of ineffective assistance of PCR counsel, such claims are not cognizable on federal habeas review. See 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.”); Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008) (“[E]ven where there is some error in state post-conviction proceedings, a petitioner is not entitled to federal habeas relief because the assignment of error relating to those post-conviction proceedings represents an attack on a proceeding collateral to detention and not to the detention itself.”).
II. Procedural Default Analysis
The Warden contends the only issues properly raised to the state's highest court and preserved for review are the two issues presented in the merits brief filed by PCR appellate counsel after the denial of her Johnson petition-that Stackhouse's trial counsel was ineffective for (1) failing to object to the solicitor's improper vouching during closing argument and (2) failing to investigate and raise a claim of self-defense. (Dkt. No. 16 at 16, 23.) Stackhouse does not dispute the Warden's assertion of default but argues cause and prejudice to excuse the default under Martinez v. Ryan, 566 U.S. 1 (2012), asserting his PCR counsel was ineffective for failing to raise and preserve the defaulted claims. (Dkt. No. 30 at 1-8.)
Normally, filing a Johnson petition for a writ of certiorari in the state appellate court preserves for review any issue raised to and ruled on by the PCR court. See Johnson, 364 S.E.2d at 201 (counsel may withdraw from representation in a meritless PCR appeal if the procedures in Anders are followed); Jamison v. State, 765 S.E.2d 123, 128 (S.C. 2014) (“This Court recently held that, ‘[u]nder the Anders procedure, an appellate court is required to review the entire record, including the complete trial transcript, for any preserved issues with potential merit.'”) (quoting McHam v. State, 746 S.E.2d 41, 46 (S.C. 2013)). Further, this Court regularly finds preserved for federal habeas review any issue presented in a pro se brief accompanying a Johnson petition. See, e.g., McCoy v. Cartledge, C. A. No. 0:08-3747, HMH-PJG, 2010 WL 680258, at *13 (D.S.C. Feb. 24, 2010) (finding “denial by an appellate court of discretionary review of a PCR action does not itself result in a ‘procedural default' within the meaning of Coleman”); Kennerly v. South Carolina, C/A No. 3:08-736-CMC-JRM, 2009 WL 259635, at *2 (D.S.C. Feb. 3, 2009) (finding ground presented in PCR action, ruled upon by PCR court, and included in Stackhouse's pro se brief accompanying his attorney's Johnson petition satisfied the exhaustion requirements). The undersigned is unaware of any South Carolina case addressing whether claims raised at PCR and in the pro se brief accompanying a Johnson petition, but not in the merits brief following denial of PCR appellate counsel's request to withdraw, were properly raised to the state's highest court. However, this court has previously reasoned that, “because the appellate court already conducted an Anders review pursuant to Johnson, the court reviewed all issues raised to and ruled on by the PCR court.” Tucker v. Warden, C/A No. 0:15-4218-JMC-PJG, 2016 WL 11397830, at *8 (D.S.C. July 25, 2016), report and recommendation adopted by 2016 WL 4771285 (D.S.C. Sept. 14, 2016). Thus, any issue presented to the PCR court and in the pro se brief would be preserved for federal habeas review.
Because “such a determination of a state rule of appellate procedure is better left to the discretion of state appellate courts,” id., and “federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits,” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)), the undersigned considers the merits of any claim considered by the PCR court and presented in either the pro se brief or counseled merits brief to the South Carolina Court of Appeals. This includes Stackhouse's claims that trial counsel is ineffective for failing to: (A) “impeach and fully cross-examine state witnesses and suppress new testimony,” (B) “introduce impeaching evidence,” (C) object to the state's improper vouching in closing argument; and (H) prepare and present a claim of self-defense. (See Dkt. No. 1-1 at 1.)
A. Procedurally Defaulted Claims - Cause and Prejudice
Stackhouse's remaining claims-that trial counsel was ineffective for (D) failing to object to the state's introduction of the murder weapon, (E) failing to obtain independent expert witnesses, (F) making “damaging statements during closing argument,” (G) failing to object to “statements concerning Jackson v. Denno hearing and impeach,” (I) failing to “investigate facts behind possession of weapon and prepare a defense for coercion”-were either not presented to the state courtsor were presented to the PCR court but not on PCR appeal. Stackhouse claims “[a]ny procedural default by PCR counsel for failing to sufficiently raise” these claims “is excused by Martinez v. Ryan.” (Dkt. Nos. 1-1 at 1, 30 at 7-8; 42 at 1-9.)
Claims (E) and (F).
Claims (D), (I) and (G). Stackhouse arguably presented Claim (D) in his pro se brief in support of the Petition for Writ of Certiorari. There, Stackhouse asserted his trial counsel was ineffective for failing to contest that the knife introduced at trial was the one used in the murder. See ECF No. 16-9 at 8. If that claim and Claim (D) are the same, neither was presented to the PCR court. Rather, in his PCR application, Stackhouse alleged his trial counsel was ineffective for “failing to conduct a complete investigation into the facts and circumstances surrounding Applicant's arrest, including his possession of a knife at the time of his arrest.” (Dkt. No. 16-2 at 220.) Because the PCR court did not consider the allegation presented on PCR appeal, that claim would not have been included in the Court of Appeals' merits review under Johnson. However, Petitioner has raised the “knife issue” throughout his proceedings and it deserves some attention. Stackhouse has consistently flagged the inconsistency between a surveillance video showing him leaving the apartment after the stabbing with a knife in his hand and Daquan's testimony that Stackhouse probably left the knife in the front room of the apartment. He claims he had never seen the knife introduced at trial before it was put into evidence and that his trial counsel should have done more to figure out where that knife came from and show it was not the same as the knife Stackhouse carried out of the apartment that night. However, as explained in the undersigned's discussion of Claim (F) below, rather than attempt to poke holes in the State's story, trial counsel reasonably stuck to one defense strategy-claiming the whole thing was an accident. Consistent with that strategy, counsel did not dispute that Stackhouse stabbed the victims and thus any challenge to the knife would have been distracting and irrelevant.
Typically, “[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings” is not a ground for relief under § 2254. 28 U.S.C. § 2254(i); see also Martinez v. Ryan, 566 U.S. 1, 9 (2012) (“[A]n attorney's ignorance or inadvertence in a [PCR] proceeding does not qualify as cause to excuse a procedural default.”). However, Martinez created a narrow exception permitting inadequate assistance of counsel at initial-review collateral proceedings to establish cause for a procedurally defaulted claim of ineffective assistance of trial counsel where:
the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective-assistance-of-counsel [claim] . . . be raised in an initial-review collateral proceeding.”Trevino v. Thaler, 569 U.S. 413, 423 (2013) (alteration in original) (quoting Martinez, 566 U.S. at 14-16). An underlying ineffective-assistance-of-counsel claim is “substantial if it has ‘some merit.'” Richey v. Cartledge, 653 Fed.Appx. 178, 184 (4th Cir. 2016) (quoting Martinez, 566 U.S. at 14). “Relatedly, to show ineffective assistance, the petitioner must make a ‘substantial' showing with respect to both counsel's competency . . . and prejudice.” Teleguz v. Zook, 806 F.3d 803, 815 (4th Cir. 2015). To make a substantial showing of incompetency, the petitioner must demonstrate “‘that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the Sixth Amendment.'” Id. (quoting DeCastro v. Branker, 642 F.3d 442, 450 (4th Cir. 2011)). To make a substantial showing of prejudice, the petitioner must demonstrate “that ‘counsel's errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable,' i.e., that there was ‘a substantial, not just conceivable, likelihood of a different result.'” Id. (quoting DeCastro, 642 F.3d at 450).
However, by its own terms, Martinez only applies to errors by PCR counsel, not PCR appellate counsel. See Martinez, 566 U.S. at 16 (“The holding in this case does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings.”); see also Davila v. Davis, 137 S.Ct. 2058, 2062-63 (2017) (declining to extend Martinez exception to claims of ineffective assistance of appellate counsel). Thus, PCR appellate counsel's failure to raise claims (D), (I), and (G) cannot constitute cause for their default and those claims are subject to summary dismissal.
Stackhouse argues his PCR counsel provided ineffective assistance when addressing these claims in the PCR proceedings. (See Dkt. No. 42 at 1 (alleging PCR counsel failed to “sufficiently raise the knife issue”), 2 (alleging PCR counsel was ineffective in addressing trial counsel's damaging statements about the murder weapon in closing argument)). However, PCR counsel did raise these issues and the default occurred not at the PCR level, but in the PCR appeal. So, the default is not attributable to PCR counsel and his performance is not relevant to the analysis.
Regarding the two claims not presented to the state courts at all-that trial counsel was ineffective for (E) failing to obtain independent expert witnesses and (F) making damaging statements during closing argument-Stackhouse has not shown these claims have “some merit” and thus fails to demonstrate cause under Martinez.
1. Claim (E) - failure to obtain an independent expert witness
First, Stackhouse asserts trial counsel should have called an independent forensic pathologist and obtained a human anatomy chart to support the defense and impeach the state's expert witness. (Dkt. No. 1-1 at 19.) In support, Stackhouse states,
Chart contradicts the state[']s expert testimony concerning the victim's wound[] path and final diagnoses. This was reason enough for counsel to call on a[n] independent expert in the field of pathology for the defense. The solicitor use[d] the state[] pathologist's testimony to argue scientific evidence he knew or should have known to be false. Because counsel was not properly prepared with good research in this matter the petitioner was denied the effective assistance of counsel.(Id.)
At trial, the pathologist who performed the autopsy, Dr. Ellen Riemer, testified the victim died from a single stab wound to the chest. (Dkt. No. 16-2 at 4.) She further described the wound as eight inches deep, slightly angled, and consistent with a single edge blade like a knife. (Id. at 1.) Dr. Riemer explained that nobody could have survived the injury because “there were too many essential vital structures that were severely damaged including the heart and both lungs and the aortic pump.” (Id. at 4.)
Although Stackhouse did not assert this exact claim in his PCR proceedings, he did testify about the autopsy report and potential challenges to Dr. Riemer's credibility. Stackhouse stated,
at the time, I believed - - I thought maybe Sharon could have gotten hit while I was swinging [the knife].
So I tried to explain to [trial counsel] maybe that Sharon could have sustained her injury from me swinging the knife, according to the way the autopsy report was, but after examining the autopsy report, I saw that that was scientifically impossible because the parts that she named, none of those parts are lined straight up in a row. So she couldn't have gotten hit the way the . . . pathologist said she did when I checked the charts.
I also wondered why they didn't have a chart presented in court to show, you know, the organs or the parts that was hit by the knife.(Dkt. No. 16-2 at 245.) Stackhouse testified that trial counsel could have discredited Dr. Riemer “with the wound path” if he had further investigated. (Id.) Trial counsel testified he received the autopsy and pathology reports and reviewed them with Stackhouse. (Dkt. No. 16-3 at 15, 30-31.) He further testified he saw no reason or way to have challenged Dr. Riemer's credibility or the autopsy. (Id. at 31.)
Stackhouse fails to present any evidence supporting his allegation of error in Dr. Riemer's report or testimony.Nor does he explain how an independent pathologist would have testified differently and how that would have impacted his defense and likely changed the outcome of his trial. Stackhouse's speculative conclusion based on his own review of the evidence is not enough to show this claim has “some merit.” See Bassette v. Thompson, 915 F.2d 932, 940-41 (4th Cir. 1990) (finding unsupported general claim that counsel should have called additional witnesses cannot establish ineffective assistance of counsel); Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992) (explaining that the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment). Thus, to the extent Stackhouse argues the default is excusable due to PCR counsel's ineffective assistance, PCR counsel cannot be deficient for failing to pursue a meritless claim. See, e.g., Juniper v. Zook, 117 F.Supp.3d 780, 791 (E.D. Va. 2015) (“If an underlying trialineffectiveness claim has no merit, then it fails not only under Martinez's first element, but also the second element, because [PCR] counsel could not have been ineffective for failing to raise a meritless claim.”). Accordingly, Stackhouse fails to show cause to excuse the procedural default of this allegation under Martinez and the claim is subject to summary dismissal.
Stackhouse includes photocopied pages from an unidentified book showing diagrams of the heart. (Dkt. No. 3 at 21-25.) The undersigned assumes these pages are offered in support of this claim. However, “under § 2254(e)(2), a federal habeas court may not . . . consider evidence beyond the state-court record based on ineffective assistance of state postconviction counsel.” Shinn v. Ramirez, 142 S.Ct. 1718, 1734 (2022). Thus, this Court may not consider any evidence not presented to the state courts.
Claim (Q) appears to address PCR counsel's failure to argue portions of this issue. (Dkt. No. 42 at 8.)
2. Claim (F) - counsel's damaging statements in closing argument
Second, Stackhouse asserts PCR counsel should have argued ineffective assistance of trial counsel based on improper statements counsel made in closing argument. (Dkt. No. 1-1 at 1, 27.) At the beginning of his closing argument, trial counsel told the jury he and the solicitor agreed on certain facts, including that Stackhouse “was in that room [and] that he was holding that knife.” (Dkt. No. 16-2 at 138-39.) Stackhouse argues this statement was damaging because Stackhouse never admitted to stabbing his wife and maintains he was not holding the knife introduced at trial as the murder weapon. (Dkt. No. 1-1 at 18.) Stackhouse fails to show any prejudice resulting from counsel's statement.
Stackhouse had maintained to trial counsel and law enforcement prior to the trial that he and his wife got into an argument, Stackhouse grabbed a knife and swung it around to ward off his wife and her son, and his wife and her son got stabbed. (See Dkt. Nos. 16-2 at 235-36, 16-3 at 13.) The jury was played a recorded statement of Stackhouse recounting that version of events to the police. (See Dkt. No. 16-2 at 65.) Based on Stackhouse's statement and the physical evidence, the state argued Stackhouse intentionally stabbed his wife. (See Dkt. No. 16-2 at 11720.) Based on the same statement and evidence, the defense asserted the stabbing was accidental and not done with malice aforethought. (Id. at 139-40.) The defense strategy was to admit some fault and try for a lesser-included offense. (See Dkt. No. 16-3 at 13 (trial counsel testifying at PCR evidentiary hearing that potential defenses included accident and showing Stackhouse did not intentionally stab anyone).) Counsel's challenged remark, and entire closing argument, was consistent with this overall trial strategy and Stackhouse has not shown how omitting this comment could have changed the result of his trial. See Strickland, 466 U.S. at 694 (prejudice requires a showing of “a reasonable probability that, but for counsel's” challenged conduct, “the result of the proceeding would have been different”); (See also Dkt. No. 16-2 at 139-40 (“Mr. Stackhouse admitted, you know, his part, responsibility for this thing and the reason we know that is because he gave a statement.... Now I do disagree with the Solicitor as to what conclusions you can draw from that statement and the evidence that was presented . . .”).)
Accordingly, Stackhouse fails to show the underlying ineffective assistance of trial counsel claim has “some merit” and, thus fails to show his PCR counsel was ineffective for not pursuing this claim.Accordingly, Stackhouse fails to show cause to excuse the procedural default under Martinez, leaving this claim subject to summary dismissal.
Claim (L)'s allegation of ineffective assistance by PCR counsel corresponds to Claim (F)'s allegation of ineffective assistance of trial counsel. (See Dkt. No. 42 at 2.)
II. Merits Analysis
A. Failure to impeach state witnesses and suppress new testimony
Stackhouse alleges his trial counsel was ineffective for failing to impeach Sharon's sons, Daquan and William, with their prior statements to police or to move to suppress their testimony at trial because it was not the same as their original statements.
Sharon's sons were 16 and 15 years old at the time of Stackhouse's trial. (See Dkt. No. 16-2 at 68, 80.) William, the younger of the two, testified that the night his mother was killed, he and his brother were asleep when they heard noises from their mother's room and heard her call out for Daquan. (Id. at 70.) They both ran to her room. (Id.) Daquan entered and began fighting with Stackhouse but William stayed in the hallway and, when he saw what was happening, ran out of the apartment to get help. (Id.) William stated he saw something in Stackhouse's hand but could not say what it was. (Id. at 70-71.) He testified that Daquan and Stackhouse were fighting face-to-face standing up and he never saw Stackhouse on the ground. (Id. at 71.) William indicated he gave the police a written statement the same day. (Id. at 75.) On cross-examination, William confirmed his previous testimony and agreed that the written statement trial counsel showed him was the statement he gave police. (Id. at 76-80.)
Daquan testified he heard bumping noises against the wall coming from his mother's room, then saw Stackhouse coming from the kitchen with a knife. (Id. at 84.) He heard his mother call for him and ran to her room, where he saw Stackhouse stabbing his mother in the abdomen. (Id.) Daquan grabbed Stackhouse's hands, Stackhouse turned to face him, and they struggled. (Id. at 84, 86.) Stackhouse managed to cut Daquan once and tried to cut him again. (Id. at 86-87.) Daquan jumped back and Stackhouse left the apartment. (Id. at 87-89.) Daquan was transported to the hospital by helicopter. (Id. at 91.) He was able to speak with police three days later and provided a written statement. (Id. at 91-92.) On cross-examination, trial counsel asked Daquan about multiple inconsistencies between his written statement and his testimony, including his testimony that he saw Stackhouse walking from the kitchen to his mother's room with a knife. (Id. at 96-97, 103.) Trial counsel also elicited testimony showing Daquan's wounds were not as severe as suggested. (See id. at 100-01.) Neither trial counsel nor the solicitor introduced the boys' written statements into evidence. (See Dkt. No. 16-1 at 6.)
At the PCR hearing, Stackhouse testified the boys' written statements did not mention seeing Stackhouse walking from the kitchen to Sharon's room with a knife. (Dkt. No. 16-3 at 4.) However, the solicitor mentioned this fact in his opening argument. (Id.) So, Stackhouse alleged the solicitor must have known that was going to be part of the boys' testimony and failed to disclose that to the defense. (Id.) In addition, Stackhouse alleged trial counsel should have objected to that information coming in or, at least, done a “more adequate” cross-examination. (Id. at 4-5.) Trial counsel testified the boys were young and their testimony came across as very traumatic. (Id. at 19.) Trial counsel could see the jury reacting and did not want to “beat [the boys] up and be overly aggressive with them.” (Id.)
The PCR court found trial counsel's decision not to cross-examine Daquan and William more vigorously was a reasonable trial strategy and Stackhouse failed to show a more intense cross-examination would have changed the outcome of his trial. (Dkt. No. 16-3 at 88-89.) The court reasoned,
The purpose of cross-examination at trial is “to show a prototypical form of bias on the part of the witness, and thereby to expose to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness.” Applicant testified the pictures of the scene showed Daquan could not have seen what he claimed, but Applicant did not introduce those pictures into evidence at the hearing. In this case, Applicant has offered only speculation that further or more rigorous cross-examination of Daquan and William would have changed the outcome of his case.
Additionally, the record reflects Counsel cross-examined both Daquan and William in detail about their statements and pointed out numerous inconsistencies, particularly between Daquan's statement and his trial testimony. Counsel also explained he felt his cross-examination of the boys needed to be handled in a particular way due to their age and because they had been traumatized and were eliciting emotional reactions from the jury. Further, because the discrepancies identified by Applicant relate only to impeachment, and Counsel did in fact impeach the witnesses with their prior statements, this Court finds no discovery violation. This Court finds Counsel articulated a reasonable strategy to explain the decisions he made at trial, and therefore, this Court finds no deficiency in his handling of the cross-examination and impeachment of Daquan and William.(Id. (citations omitted).)
Stackhouse does not allege specific error by the PCR court but re-states his position that trial counsel should have introduced the boys' written statements into evidence and used those statements to impeach their testimony. (See Dkt. No. 1-1 at 15, 25.) The undersigned has independently reviewed the state record and relevant law and finds the PCR court's decision reasonably applies clearly established Supreme Court precedent and is based on a reasonable interpretation of the facts.
Under Strickland, a reviewing court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” 466 U.S. at 689. “Decisions about what types of evidence to introduce are ones of trial strategy, and attorneys have great latitude on where they can focus the jury's attention.” Wilson v. Greene, 155 F.3d 396, 404 (4th Cir. 1998). These decisions include whether and how to cross-examine witnesses. See Fugate v. Head, 261 F.3d 1206, 1219 (11th Cir. 2001) (“The decision as to whether to cross-examine a witness is a tactical one well within the discretion of the defense attorney.”); Blair v. United States, No. PJM 14-766, 2016 WL 6569064, at *5 (D. Md. 2016) (noting choosing how to cross-examine a witness is a tactical matter and “[s]imply because counsel's questions did not lead the jury to discount witness testimony does not render counsel's performance unreasonable”); Delaware v. Fensterer, 474 U.S. 15. 20 (1985) (per curiam) (“the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish”) (emphasis in original).
This case illustrates the reason reviewing courts must afford such great latitude to trial attorneys' decisions. Here, counsel was in the courtroom, observing the jury's reaction to the boys' testimony. Nothing in the cold trial transcript can recreate what counsel was able to discern in the juror's faces. The PCR court granted proper deference to counsel's decision, based on his observations in the moment and professional experience, not to push the boys too hard in crossexamination. Stackhouse fails to show the PCR court misapplied Strickland or based its decision on an unreasonable factual determination and the undersigned recommends granting summary judgment as to this ground.
B. Failure to introduce impeaching evidence
Although Stackhouse raises an additional ground asserting trial counsel was ineffective for failing to “introduce impeaching evidence,” it is not clear from his memorandum the exact basis for this claim. (See Dkt. No. 1-1 at 1.) Further, the only claim concerning trial counsel's failure to impeach witnesses that Stackhouse presented to the state courts was the claim addressed above concerning William and Daquan. (See Dkt. No. 16-3 at 80-91 (PCR court's summary of allegations).) Thus, the undersigned finds this ground duplicative and recommends dismissal for the same reasons stated above.
C. Failure to object to improper vouching
Next, Stackhouse argues his trial counsel was ineffective for failing to object when the solicitor improperly vouched for state witnesses during closing argument. Pursuant to South Carolina law,
Improper vouching occurs when the prosecution places the government's prestige behind a witness by making explicit personal assurances of a witness' veracity, or where a prosecutor implicitly vouches for a witness' veracity by indicating information not presented to the jury supports the testimony.State v. Shuler, 545 S.E.2d 805, 818 (S.C. 2001).
At the end of his closing argument, the solicitor turned to the issue of credibility, stating:
Ladies and gentlemen, [Stackhouse] can't get on that bicycle and ride away from y'all today. If you believe what he says you got to find him guilty of voluntary manslaughter. If you don't believe the things I pointed out that I believe absolutely are not true you got to find him guilty of murder. You got to bring back a verdict that speaks the truth. The burden of proof is on me. He doesn't have to prove anything, and that is the way it should be. It's hard to prove your innocence. The State should have to prove you're guilty beyond a reasonable doubt. I believe we've done that....Y'all didn't fall off the turnip truck last night. Y'all heard the story and y'all listened to the evidence, and I believe y'all are going to bring back
a verdict that finds the truth It's a horrible, horrible thing. That's kind of like a curse across our nation on domestic abuse resulted in a murder of two young boys' momma in front of them; and now here they come and tell what they endured and what they saw, what they heard, to y'all under oath four days after the mother died. They don't have anything that shows they're lying ‘cause they're not lying. They told you the truth. Now y'all bring back a verdict that speaks the truth. Edward Stackhouse is guilty of murder; he's guilty of attempted murder. And he is guilty of possessing this during the commission of a violent crime. Take this back and look at it. Thank you.(Dkt. No. 16-2 at 137-38 (emphasis added).) Stackhouse argues the italicized portion above constituted improper vouching for Daquan and William and counsel's failure to object was both deficient and prejudicial.
At the PCR hearing, trial counsel stated he did not recall any portion of the solicitor's closing argument that would have warranted an objection. (Dkt. No. 16-3 at 25.) Relying on Strickland and state and federal law concerning impermissible vouching, the PCR court found “any deficiency by Counsel was harmless,” reasoning,
While the comment regarding the boys' testimony was potentially objectionable as burden-shifting, in the context of the entire closing argument, it appears to this Court the Solicitor was making a legitimate factual argument as to who was telling the truth. As to the Solicitor's comment regarding voluntary manslaughter versus murder, the judge charged the jury on various lesser-included offenses, and the State was entitled to make an argument applying the facts of the case to the law, which the Solicitor did here....Accordingly, the Court finds Applicant has failed to prove any prejudice from Counsel's failure to object, and these allegations are denied and dismissed.(Dkt. No. 16-3 at 92.)
Stackhouse asserts the PCR court improperly found the solicitor was “making a legitimate factual argument as to who was telling the truth” because, during the argument portion of the PCR hearing, trial counsel's attorney said,
I think the solicitor is entitled to comment. You know, the issue of the boys' credibility was an issue at trial. The State - - they did have something to show that they were lying because they had the - - or saying something different because they had the different statements.(Dkt. No. 1-1 at 17 (quoting Dkt. No. 16-3 at 52).) However, counsel went on to explain that trial counsel cross-examined the boys on their inconsistent statements and mentioned the issue in his closing argument, so the solicitor was entitled to offer his view as to who was telling the truth. (Dkt. No. 16-3 at 52.) Contrary to Stackhouse's assertion, this statement and the underlying portions of the trial transcript support the PCR court's finding that any error by trial counsel in not objecting to the solicitor's comments did not result in prejudice.
For comments made in closing argument to be constitutionally prejudicial, “it is not enough that the prosecutors' remarks were undesirable or even universally condemned. The relevant question is whether the prosecutors' comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). Here, trial counsel's cross-examination of Daquan and William highlighted inconsistencies between their testimony and the written statements they provided to police shortly after the murder, thus putting the boys' credibility into question. (See Dkt. No. 16-2 at 94-101.) Accordingly, the solicitor addressed the issue in his closing argument and so did Stackhouse's counsel. Then the question of witness credibility was left to the jury.
Stackhouse also contends he “was prejudiced because the two instances of improper bolstering by the solicitor at closing invaded the province of the jury and precluded the jury from performing its duty to assess the evidence presented at trial and entertain the defense and lesser offense.” (Dkt. No. 1-1 at 11.) During closing arguments and the jury charge, both attorneys and the judge informed the jurors it was their job to determine witness credibility based on their personal observations and the evidence presented, and that arguments from the attorneys were not to be considered evidence. (See, e.g., Dkt. No. 16-2 at 116, 117-18, 127-28, 137-38, 14647, 149, 150-51, 154.) This Court's “analysis is governed, first and foremost, by the ‘almost invariable assumption of the law that jurors follow their instructions.'” United States v. Runyon, 707 F.3d 475, 497 (4th Cir. 2013) (quoting Richardson v. Marsh, 481 U.S. 200, 206 (1987)). Thus, the court presumes the jurors understood their role and acted accordingly and Stackhouse has not offered a persuasive rebuttal to this presumption. Thus, Stackhouse fails to show the PCR court misapplied Strickland or any other clearly established Supreme Court precedent or based its decision on an unreasonable interpretation of the facts and the undersigned recommends granting summary judgment as to this ground.
D. Failure to prepare and present a claim of self-defense
Stackhouse asserts trial counsel was ineffective for failing to research and present evidence in support of a claim of self-defense. (Dkt. No. 1-1 at 20.) The Warden maintains the PCR court's determination of this claim was reasonable in both law and fact. (Dkt. No. 16 at 2122.)
Although trial counsel did not pursue self-defense, the judge decided on his own to include a self-defense charge based on Stackhouse's recorded statement, which was played for the jury, telling police Sharon had previously hit Stackhouse with a hammer and stabbed him and Stackhouse grabbed the knife because he was afraid of being attacked. (Dkt. No. 16-2 at 112-13, 163-68.)
At the PCR hearing, counsel explained he did not consider self-defense based on Stackhouse's version of what happened. (Dkt. No. 16-3 at 35.) Stackhouse told trial counsel he picked up a knife, was flailing his arms, and unintentionally stabbed two people. (Id.). Counsel testified, “He never related to me that he was attacked, that either of the victims were armed, that they - - that he felt threatened or in fear for his own safety or health, or that he was unable to, you know, exit the room.” (Id.) Based on that version of events, trial counsel thought accident was a more appropriate defense. (See id. at 13.) However, counsel did recall Stackhouse telling him Daquan ran in and jumped on Stackhouse's back, causing him to fall to the floor. (Id. at 13, 37.)
The PCR court found:
In this case, it is undisputed that Applicant's version of events is that he picked up the knife from the floor of the bedroom, began swinging and flailing around, and stabbed or cut the victims in the process. Counsel testified this is the story Applicant told him when they met to discuss the case, and it was the same version he gave the Mullins police officers in his statement. Applicant's own testimony at the evidentiary hearing recited these same facts. Counsel also explained he argued the defense of accident, rather than self-defense because in his opinion, these facts do not support a self-defense case. Counsel further testified Applicant never told him he was in fear of his life. In any event, the trial judge chose to give the selfdefense charge to the jury, so Applicant still received the benefit of the charge. This Court finds Counsel's strategy was reasonable, and accordingly, Applicant's allegation is denied and dismissed.(Dkt. No. 16-3 at 94.)
Stackhouse does not allege specific error by the PCR court, instead reasserting that trial counsel was ineffective for failing to prepare and argue self-defense. (Dkt. No. 1-1 at 20.) Again, in accordance with the AEDPA, the Court must focus on whether the PCR court's rejection of this claim was unreasonable. After a thorough review of the state record and relevant law, the undersigned finds that it was not.
Counsel can only base tactical decisions on the information he has before him at the time. See Strickland, 466 U.S. at 691 (“The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.”). Stackhouse does not contend he told trial counsel a different set of facts than those presented in the PCR hearing. In fact, Stackhouse's own description of what happened to the PCR court mirrored counsel's account of what Stackhouse had told him. (See Dkt. No. 16-2 at 243.)
Moreover, Stackhouse does not allege any fact not presented at trial that would have further supported a self-defense theory. The jury heard Stackhouse's statement to police, indicating Daquan jumped on his back and that he and Sharon had previous physical altercations in which she was the aggressor. And the jury received a charge on self-defense. Thus, the jury had before it everything it needed to find Stackhouse acted in self-defense and declined to do so. Stackhouse fails to explain exactly what trial counsel should have done differently or how a different approach would have changed the outcome of his trial. Accordingly, Stackhouse fails to show the PCR court's decision was an unreasonable application of Strickland or was based on an unreasonable interpretation of the facts, and the undersigned recommends granting summary judgment as to this ground.
Certificate of Appealability
If the Warden'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
For the above reasons, the undersigned recommends the Court grant the Warden's motion, 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).