Opinion
C. A. 1:23-371-JD-SVH
07-14-2023
Willie Thomas Starnes, Petitioner, v. Donnie Stonebreaker, Warden Evans Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Willie Thomas Starnes (“Petitioner”) is an inmate at Evans Correctional Institution in South Carolina who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's return and motion for summary judgment. [ECF Nos. 14, 15]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 16]. Petitioner filed a response to the motion on June 21, 2023. [ECF No. 18]. Also before the court are Petitioner's motions for a more definite statement, for hearing, and to appoint counsel. [ECF Nos. 19, 20].
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted, rendering Petitioner's pending motions moot.
I. Factual and Procedural Background
On August 20, 2014, Petitioner was indicted by the Kershaw County Grand Jury for murder (2013-GS-28-1041) and armed robbery (2013-GS-28-1040). [ECF No. 14-5 at 1009-12]. Due to a prior conviction for assault and battery with intent to kill, Petitioner was served notice of the Solicitor's intent to seek a life sentence without the possibility of parole. [See, e.g., ECF No. 14-2 at 757-58].
Under S.C. Code Ann. §17-25-45 a person convicted of assault and battery with intent to kill, categorized as a “most serious offense,” “must be sentenced to a term of imprisonment for life without the possibility of parole” or LWOP.
On August 25, 2014, the case was called for trial before the Honorable DeAndrea G. Benjamin, then-Circuit Court Judge. [ECF No. 14-1 at 1]. Assistant Public Defender Jason D. Kirincich (“Kirincich”) of the Fifth Circuit Public Defender's office, represented Petitioner. Deputy Solicitor Brett A. Perry (“Perry”) and Assistant Solicitors Curtis A. Pauling and Curtis R. Hutchinson of the Fifth Circuit Solicitors Office represented South Carolina. Id.
At trial, evidence was presented that on August 24, 2013, Alan Robinson (“Robinson”) was traveling by moped on Freeman Road, a dirt road in Bethune, South Carolina. Petitioner struck the victim with his SUV knocking him off the moped. While Robinson was struggling on the side of the road, Petitioner took his moped and placed it in the back of the SUV. Petitioner then made a U-turn, running over Robinson and leaving him on the side of the road. Robinson was discovered by family members William and Martha Pate (“the Pates”) and spoke with them. Robinson died the following day of his injuries.
On August 28, 2014, a jury found Petitioner guilty of both murder and armed robbery. [ECF No. 14-2 at 752]. Due to his prior conviction, Petitioner was sentenced to LWOP for both offenses. Id. at 766. The trial court ordered the sentences to be served concurrently. Id.
On September 9, 2014, Petitioner filed a motion for new trial. [ECF No. 14-3 at 825-26]. Petitioner argued he was never given notice prior to his previous most serious offense that another conviction would guarantee a LWOP. Id. at 825, 829. Petitioner further argued that the decision to allow Robinson's statements to his family into evidence as a dying declaration or excited utterance was error. Id. at 825.
Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), SCRE. Generally, hearsay is not admissible unless it falls within an exception. Rule 802, SCRE. Hearsay is admissible if it falls within the excited utterance exception, which allows statements “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Rule 803(2), SCRE. Hearsay is also admissible in a prosecution for homicide where “a statement [is] made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death,” commonly known as a dying declaration. Rule 804(b)(2), SCRE.
On December 4, 2014, the trial judge held a hearing regarding the motion. Id. at 827. Kirincich represented Petitioner, and Perry represented South Carolina. Id. At the conclusion of the hearing, the trial court decided that although there might not have been any notice at the prior conviction, because murder carries a life sentence even without any previous convictions, the sentence of the court was not erroneous. Id. at 835. The trial court also ruled that the victim's statements came into evidence through an excited utterance, and a proper foundation had been laid to establish the statements as a dying declaration such that the victim's statements were exceptions to the hearsay rule. Id. at 835-36.
On December 5, 2014, the trial court issued an order denying Petitioner's motion for a new trial and noting that his counsel conceded at the hearing that there was no favorable case law supporting his position regarding LWOP. Id. at 838, see also id. at 830.
Petitioner filed a notice of appeal challenging whether the trial court erred in admitting the alleged hearsay statements from Robinson pursuant to the excited utterance or dying declaration exception to the hearsay rule. [ECF No. 14-3 at 842]. The South Carolina Court of Appeals issued an opinion filed on December 21, 2016, unanimously affirming the decision of the trial court as follows:
Affirmed pursuant to Rule 220(b), SCACR, and the following authorities: State v. Black, 400 S.C. 10, 16, 732 S.E.2d 880, 884 (2012) (“In criminal cases, an appellate court sits to review only errors of law, and it is bound by the trial court's factual findings unless they are clearly erroneous.”); State v. Vang, 353 S.C. 78, 83-84, 577 S.E.2d 225, 227 (Ct. App. 2003) (“The admission or rejection of testimony is within the sound discretion of the trial [court] and will not be overturned absent a showing of abuse of discretion, legal error, and prejudice to the appellant.”); Rule 802, SCRE (“Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court of this State or by statute.”); Rule 803(2), SCRE (providing the rule against hearsay does not exclude “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition”); State v. Hendricks, 408 S.C. 525, 532, 759 S.E.2d 434, 437-38 (Ct. App. 2014) (“The supreme court has identified three elements a trial court must consider when determining whether a statement has the spontaneous quality necessary for admission as an excited utterance: ‘(1) the statement must relate to a startling event or condition; (2) the statement must have been made while the declarant was under the stress of excitement; and (3) the stress of excitement must be caused by the startling event or condition.'” (quoting State v. Washington, 379 S.C. 120, 124, 665 S.E.2d 602, 604 (2008))); State v. McHoney, 344 S.C. 85, 94, 544 S.E.2d 30, 34 (2001) (“In determining whether a statement falls within the excited utterance exception, a court must consider the totality of the circumstances.” (citing State v. Dennis, 337 S.C. 275, 284, 523 S.E.2d 173, 177 (1999))).[ECF No. 14-4 at 882-83]. The remittitur was sent to the Kershaw County Clerk of Court on January 10, 2017. [See ECF No. 14-6 at 6].
On January 24, 2017, Petitioner filed an application for post-conviction relief (“PCR”), arguing he was entitled to relief due to 1) ineffective assistance of counsel; 2) ineffective assistance of appellate counsel; and 3) the denial of the due process of law. [ECF No. 14-4 at 884-902]. Respondent filed a return on July 21, 2017. Id. at 903-909.
Petitioner amended his PCR application on May 29, 2019, raising the following claims:
a) Trial counsel failed to interview Patricia Starnes prior to trial and inform her of her right to assert spousal privilege.
b) Trial counsel should have objected when the Solicitor informed the jury that the empty chair at the prosecution's table was for the deceased victim.
c) Trial counsel failed to share and disclose to Applicant new witness statements from William Pate and Martha Pate received immediately prior to trial.
d) Trial counsel failed to object when the Court failed to advise Patricia Starnes of her right to choose not to testify.
e) Trial counsel failed to consult an expert medical professional and obtain a second opinion regarding the victim's injuries.
f) Trial counsel failed to request a mistrial or request to remove a sleeping juror with an alternate juror when a juror was caught sleeping during trial.
g) Trial counsel failed to properly communicate with the Applicant and prepare him for trial including preparing him to testify in trial.
h) Trial counsel failed to effectively assist the Applicant in plea negotiations.Id. at 990.
On June 18, 2019, the Honorable Diane Goodstein, Circuit Court Judge (“PCR judge”), held a hearing on Petitioner's application for PCR (“PCR hearing”). [ECF No. 14-4 at 910]. Assistant Attorney General Kristy Goldberg of the Office of the Attorney General appeared for the State of South Carolina and attorney Peggy McAllister appeared on behalf of Petitioner. Id. Petitioner, his wife Patricia Starnes, and his trial attorney Kirincich testified at the PCR hearing. Id. at 911.
At the beginning of the PCR hearing, Petitioner informed the court that he wished to proceed on his amended PCR application only and also withdrew allegation (e) of the amended PCR application. [See ECF No. 14-4 at 990].
On January 17, 2020, PCR judge issued an order of dismissal, in which she determined Petitioner had not establish any constitutional violations or deprivations that would require the court to grant relief. Id. at 983-1007. The PCR application was dismissed with prejudice. Id. at 1007.
On January 28, 2020, Petitioner's PCR counsel filed an initial notice of appeal before the South Carolina Supreme Court. [ECF No. 14-6 at 1]. On January 27, 2021, Petitioner's appellant counsel filed a Johnson petition for writ of certiorari.[ECF No. 14-8]. On March 11, 2021, Petitioner filed a response, presenting the following issues:
A Johnson petition is the state PCR appeal analogue to an Anders brief, a brief filed pursuant to Anders v. California, 386 U.S. 738 (1967), and effectively concedes the appeal lacks a meritorious claim. See Johnson v. State, 364 S.E.2d 201 (S.C. 1988).
1. Whether the lower court erred when it found no violation for Petitioner's Counsel to not inform Petitioner's wife of her right to assert spousal privilege?
2. Whether the lower court erred when it failed to find it reversible error for the Solicitor to inform the jury that the empty chair at the prosecution table was for the deceased?
3. Whether the lower court erred when it failed to rule it a violation of Petitioner's rights for trial counsel to fail to share and disclose to Petitioner new witness statements from William Pate and Marth Pate received immediately prior to trial?
4. Whether the lower court erred by not ruling it was not error for trial counsel to not request a mistrial or request to be removed a sleeping juror with an alternate juror when juror was caught [sleeping] during trial?
5. Whether the lower court erred by ruling trial counsel properly prepared Petitioner by effectively communicating and explaining the trial and testifying
6. Whether the lower court erred by ruling counsel effectively assisted Petitioner in plea negotiations?[ECF No. 14-9].
On March 16, 2021, the South Carolina Supreme Court issued an order transferring this case to the Court of Appeals. [ECF No. 14-10]. On October 5, 2022, the Court of Appeals denied certiorari and granted counsel's request to withdraw. [ECF No. 14-11]. On October 21, 2022, the Court of Appeals sent the remittitur to the Kershaw County Clerk Court's office. [ECF No. 14-12]. This remittitur was filed on October 25, 2022. Id.
II. Discussion
A. Federal Habeas Issues
Petitioner raises the following ground for relief:
Ground One: The Lower state Court(s) abused its discretion to allow the solicitor to subsequently have witnesses to modify [statements] .... During the Jackson v. Denno hearing, trial counsel object[ed] to the state['s] intent to introduce two statements [taken] from Mr. William Lloyd Pate and Mrs. Martha Pate on August 12, 2014, eleven days before trial. These statements were not the Pate's “own statements” but statements made by the victim after the incident that led to the charges against Petitioner ....
Ground Two: Did the PCR court err[] when Petitioner and his wife were not informed of a protected [marital] privilege as provided by S.C..... Petitioner testified at the [PCR] evidentiary hearing that trial counsel should have informed him and his wife of t[he spousal] privilege ....
Ground Three: Did the PCR Court err[ in] find[ing] trial counsel['s] failure to preserve for appellate review an objection to the issue concerning the sleeping juror, when trial by jury is a substantive constitutional right .... The PCR Court's findings of facts and conclusions of law is not correctly supported by the record. In fact, Petitioner's case is similar to State v. Hurd, 325 S.C. 384, 480 S.E.2d 94 (1966), where the judge erred in failing to replace a juror who slept during portion-if not the entire jury charge ....
Ground Four: Did the prosecutor's “foul blow” in its opening statements to the jury [have] a prejudicial impact on Petitioner's substantial right pursuant to Berger v. United States as to deprive him of a fair trial?[ECF No. at 1 at 9, 22-23, 43].
Petitioner is referencing a hearing pursuant to Jackson v. Denno, 378 U.S. 368 (1964) (setting forth pre-trial procedures by which to determine the voluntariness of a defendant's confession).
B. Standard for Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e).
C. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (2000). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 410. Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Respondents concede that Petitioner timely pursued and exhausted his claims in Grounds One through Four. [ECF No. 11 at 8-10].
2. Ineffective Assistance of Counsel Claims
To prevail on his ineffective assistance of counsel claims, Petitioner must show (1) that his trial counsel's performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that but for counsel's error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). The court must apply a “strong presumption” that trial counsel's representation fell within the “wide range of reasonable professional assistance,” and the errors must be “so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Harrington v. Richter, 562 U.S. 86, 104 (2011). This is a high standard that requires a habeas petitioner to show that counsel's errors deprived him “of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. That the outcome would “reasonably likely” have been different but for counsel's error is not dispositive of the prejudice inquiry. Rather, the court must determine whether the result of the proceeding was fundamentally unfair or unreliable. Harrington, 562 U.S. at 104; Strickland, 466 U.S. at 694.
The United States Supreme Court has cautioned that “‘[s]urmounting Stricklands high bar is never an easy task[,]' . . . [establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult.” Harrington, 562 U.S. at 88 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). When evaluating an ineffective assistance of counsel claim, the petitioner must satisfy the highly deferential standards of 28 U.S.C. § 2254(d) and Strickland “in tandem,” making the standard “doubly” more difficult. Harrington, 562 U.S. at 105. In such circumstances, the “question is not whether counsel's actions were reasonable,” but whether “there is any reasonable argument that counsel satisfied Stricklands deferential standards.” Id. The unreasonableness of the state court determination must be “beyond any possibility of fairminded disagreement.” Id at 103. “If this standard is difficult to meet, that is because it was meant to be.” Id at 102. Section 2254(d) codifies the view that habeas corpus is a “‘guard against extreme malfunctions in the state criminal justice system,' not a substitute for ordinary error correction through appeal.” Id. at 102-103 (citing Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).
D. Analysis
1. Ground One
As relevant to Petitioner's Ground One, the PCR judge determined as follows:
[Petitioner] alleges Counsel was ineffective for failing to inform him of new witness statements from the victim's family members, William and Martha Pate, received “immediately” prior to trial. [Petitioner] alleges this failure prejudiced him because the statements contained a new contention that [Petitioner] deliberately struck the victim with his vehicle a second time.
Counsel testified the statements were dated August 12, 2014, and the trial began on August 25, 2014. Counsel also testified he did not remember specifically reviewing the statements with [Petitioner], but he met with [Petitioner] a week before trial and went over all the discovery they had at that time. Counsel testified he received the statements before trial, but he could not recall exactly when. [Petitioner] testified Counsel never mentioned the new statements to him or shared them. [Petitioner] also testified he had “no idea” if his decision to plead guilty or go to trial would have been different had he known about these statements, although he felt he “should have received these statements before trial.''
The Court finds when Counsel received the statements and whether [Petitioner] knew of them is irrelevant because [Petitioner] himself admitted to striking the victim a second time. The State introduced the audio tape of [Petitioner]'s statement as an exhibit, on which [Petitioner] admits he turned the car around and struck the victim a second time before driving off. Thus, the information contained within the Pates' second statements was not new information, and the timing if its disclosure did not prejudice [Petitioner] in any way. Moreover, [Petitioner] candidly admitted he did not know if the statements would have changed his decision to proceed with a trial. Based on this testimony from [Petitioner], the Court finds [Petitioner] has failed to meet his burden regarding prejudice on this issue-whether he would have pleaded guilty rather than proceeding to trial. See, e.g., Davie v. State, 381 S.C. 601, 613, 675 S.E.2d 416, 422 (2009) (holding a PCR [Petitioner] must prove actual prejudice regarding allegation counsel's deficient performance caused him to reject a favorable plea bargain), abrogated on other grounds by Smalls v. State, 422 S.C. 174, 810 S.E.2d 836 (2018). Because [Petitioner] has failed to prove either deficiency or prejudice, the Court
declines to grant relief on this allegation, and it is denied and dismissed.[ECF Nos. 14-4 and 14-5 at 1000-02].
Petitioner argues the PCR court abused its discretion, but does not directly address the reasoning supporting the PCR judge's determination beyond arguing that Robinson's relevant statements included more than the contention that Petitioner struck him with his vehicle a second time. [See ECF No. 1 at 18-20 (“trial counsel was ineffective not to pointing out ‘all' the general descriptions alleged within the new statements damages Petitioner,” including that “Petitioner . . . [physically] struck [Robinson] or punched him”)]. However, and as noted by the PCR court, Petitioner testified at the PCR hearing regarding all statements made by Robinson, as found in the Pates' statements:
Q: If you had received the statements earlier in the process, would your decision to plead or go to trial have been different?
A: No, ma'am.
Q: If you had received these statements earlier, would the way you have proceed in court been different in any way?
A: I have no idea.[ECF No. 14-4 at 923].
Here, Petitioner has failed to overcome “doubly” more difficult standard of 28 U.S.C. § 2254(d) and Strickland to show that the PCR court's application of Strickland was unreasonable particularly where, here, Petitioner has failed to show any prejudice ensuing from counsel's allegedly-deficient performance.
Petitioner notes the “inordinate delay” between the Pates' original statements and the “revised” statements provided on the eve of trial, objecting to the revised statements and ensuing testimony. [See, e.g., ECF No. 1 at 16]. However, Petitioner has failed to articulate how, on this basis, the trial court should have ruled the Pates' testimony inadmissible and does not address Respondent's argument as follows:
As for the change of statements being made right before trial, witnesses can remember new things and relay them right before trial or even while testifying during the trial itself. There was no violation of the law of the trial court allowing these statements to be relayed to the jury. As long as counsel for the Petitioner is allowed to raise the differences in statements to the jury during cross-examination these statements were legal. The PCR court was correct in allowing this and finding that there exists no ineffective assistance of counsel.[ECF No. 14 at 22].
Petitioner additionally argues the trial court erred in allowing into evidence Robinson's statements to the Pates under the dying declaration and excited utterance exceptions to the hearsay rule. [See ECF No. 1 at 11, see also id. at 16-17 (“The state court ruling was contrary to the United States Supreme Court ruling on testimonial and nontestimonial testimony and hearsay exception. In the light of the numerated statements was impermissible evidence that was not cumulative to any other evidence gathered the day of the accident or from any follow-up investigation. Petitioner was denied []effective assistance of counsel”)].
This issue was presented to the Court of Appeals in Petitioner's direct appeal. The Court of Appeals issued an opinion filed on December 21, 2016, unanimously affirming the decision of the trial court. [ECF No. 14-4 at 88283].
Petitioner's trial counsel attempted to exclude Robinson's statements to the Pates. The trial court allowed the statement into evidence, in part, under the excited utterance exception to the hearsay rule, with the South Carolina Court of Appeals affirming this decision. [See ECF No. 14-1 at 146]. There are three elements for a statement to be considered an excited utterance: (1) the statement must relate to a startling event or condition; (2) the statement must have been made while the declarant was under the stress of excitement; and (3) the stress of excitement must be caused by the startling event or condition. State v. Sledge, 832 S.E.2d 633, 638 (S.C. 2019) (citation omitted)). There was testimony presented at trial that the victim was hit by a car and was in obvious pain. Being hit by a vehicle is certainly a startling event; the victim was in pain and stress when he made these statements; and the stress and pain was caused by having been struck by a vehicle.
Although Petitioner argues otherwise [see, e.g., ECF No. 1 at 13], he has failed to show the trial court made an incorrect decision in allowing these statements into evidence. See also State v. Dennis, 523 S.E.2d 173, 178 (S.C. 1999) (“An incriminating statement admissible under an exception to the hearsay rule also is admissible under the Confrontation Clause only if it bears adequate ‘indicia of reliability.' The indicia of reliability requirement is met when the hearsay statement falls within a firmly rooted hearsay exception. The Supreme Court has held that an excited utterance, or spontaneous declaration, is one such firmly rooted exception to the hearsay rule, and its admission does not violate the Confrontation Clause.”) (citations omitted)).
Accordingly, the undersigned recommends the district judge grant Respondent's motion for summary judgment as to Ground One.
2. Ground Two
In Ground Two, Petitioner argues he and his wife should have been informed that their communications were privileged. [See ECF No. 1 at 23]. The PCR judge determined as to Ground Two, in part, as follows:
“The spousal privilege provides that in criminal cases married persons cannot be compelled to testify against their spouses concerning any communication made between them during their marriage.” State v. Copeland, 321 S.C. 318, 323, 468 S.E.2d 620, 624 (1996); see also S.C. Code Ann. § 19-11-30 (“[N]o husband or wife may be required to disclose any confidential or, in a criminal proceeding, any communication made by one to the other during their marriage.”). The right to exercise the privilege against disclosing marital communications is solely that of the witness spouse from whom the privileged information is being sought. State v. Motes, 264 S.C. 317 (1975). Here, although Patricia testified she would have asserted her spousal privilege had she known of her right to do so, the record is clear she never
expressed her desire not to testify before or during trial. The statutory provisions and case law are clear the privilege must be affirmatively asserted by the witness-spouse, which Patricia did not do in this case. Because she did not assert it, she waived the privilege. In addition, Counsel testified law enforcement was alerted to speak to Patricia because her boss overheard her telling another coworker [Petitioner] had done “something stupid.” Thus, arguably, Patricia had already waived her privilege by discussing the conversation with someone other than her spouse. See, e.g., Marshall v. Marshall, 282 S.C. 534, 538, 320 S.E.2d 44, 46-47 (Ct. App. 1984) (holding in the context of attorney-client privilege “[a]ny voluntary disclosure by a client to a third party waives the attorney-client privilege not only as to the specific communication disclosed but also to all communications between the same attorney and the same client on the same subject”). Further, Counsel credibly testified, because it was not his client's privilege to assert, he did not feel it was not appropriate for him to discuss the issue with Patricia.
Accordingly, this Court finds Counsel was not deficient in choosing not to speak to Patricia about her spousal privilege before trial, nor in failing to object when the trial court did not raise the issue .... Additionally, the Court finds [Petitioner] failed to establish how he was prejudiced by Patricia's testimony. Although Counsel testified the testimony was “damaging,” Counsel also conceded Patricia's statement at trial that [Petitioner] confessed he had “done something stupid” and “hit someone with a moped” was consistent with the defense of accident. Moreover, [Petitioner] admitted to hitting the victim in his statement to law enforcement, so Patricia's statement was cumulative. See, e,g., State v. Schumpert, 312 S.C. 502, 435 S.E.2d 859 (1993) (holding any error in admission of evidence cumulative to other not-objected-to evidence is harmless), overruled on other grounds by State v. Stukes, 416 S.C. 493, 787 S.E.2d 480 (2016).[ECF No. 14-4 at 997-99].
Although Petitioner argues otherwise, under South Carolina law, pursuant to S.C. Code Ann. § 19-11-30, “[t]he right to exercise the spousal privilege is ‘solely that of the witness/spouse from whom the privileged information is being sought.'” Koon v. Cnty. of Newberry, S.C., C/A No. 3:09-1021-SB-JRM, 2010 WL 3781829, at *2 (D.S.C. Feb. 4, 2010) (citing Motes, 215 S.E.2d 190), report and recommendation adopted, C/A No. 3:09-1021-SB, 2010 WL 3781798 (D.S.C. Sept. 21, 2010). Additionally, Petitioner fails to address the additional reasoning provided by the PCR judge-that Petitioner's wife may have waived the privilege by talking to a coworker-or directly address how Petitioner was prejudiced by her testimony in a non-cumulative way. [See ECF No. 1 at 22-29, see also id. at 29 (Petitioner arguing “[s]uch exclusion of Petitioner's wife testimony would have mitigated prejudicial evidence against the Petitioner”)].
Petitioner's extensive citations to federal-not state-privilege law is inapplicable in the instant case. Additionally, state law grounds are not a basis for federal habeas corpus relief. Wright v. Angelone, 151 F.3d 151, 15758 (4th Cir. 1998) (“a federal court may grant habeas relief only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States”) (internal quotation marks omitted); see also Larry v. Branker, 552 F.3d 356, 368 (4th Cir. 2009) (argument resting solely upon an interpretation of state statutory law is not cognizable on federal habeas review).
In sum, Petitioner has failed to show the PCR court's application of Strickland was unreasonable. Therefore, the undersigned recommends the district judge grant Respondent's motion for summary judgment as to Ground Two.
3. Ground Three
In Ground Three, Petitioner argues the PCR court's findings of facts and conclusions of law are not correctly supported by the record as to the “sleeping juror.” [ECF No. 1 at 33]. The PCR judge concluded as follows:
. . . the Court finds [Petitioner] has failed to prove either deficiency or prejudice as to Counsel's handling of the “sleeping juror” situation. Counsel brought the matter to the trial Court's attention, the juror informed the court she was not feeling well but could continue to serve, and the trial court monitored the juror closely for the remainder of the trial and did not see her actually sleeping. Thus, Counsel did not have a basis to make either a motion for a mistrial or a motion to have the juror removed. Further, [Petitioner] did not present testimony from the juror in question or any other juror to show how the alleged sleeping had any effect on the outcome of his case. Therefore, this Court also finds [Petitioner] has failed to prove he was prejudiced by Counsel's handling of the situation. See State v. Smith, 338 S.C. 66 (Ct. App. 1999) (finding the trial judge did not abuse his discretion in refusing to dismiss a “sleeping'' juror where the judge observed the juror and did not believe him to be sleeping, but merely listening with his eyes closed).[ECF No. 14-5 at 6].
Petitioner argues the instant case is like the Court of Appeals' decision in State v. Hurd, 480 S.E.2d 94 (S.C. App. 1996). In Hurd, the following occurred at the defendant's trial:
THE COURT: Anything further from the defense?
DEFENSE COUNSEL: Your Honor, I don't have any objection to the charge, but I'm very concerned about the juror who was in the green multicolored shirt there on the front row. He appeared to be asleep during most of it.
THE COURT: I noticed that, but what can I do about that?
DEFENSE COUNSEL: Well, I would ask the court to remove him and replace him with the alternate. Or bring him in and question him as to whether he knows what you said because I think it's important that he-
THE COURT: I noticed him nodding off a couple of times, but he was alert during most of the charge. I'm not going to remove him.Id. at 97. The Court of Appeals determined “it is incumbent upon the trial court to conduct a probing and tactful inquiry to determine whether a sworn juror is unqualified.” Id.
Here, unlike in Hurd, the trial judge inquired if the juror was ok and could remain on the jury and monitored her to ensure she was not sleeping. [See ECF No. 14-2 at 586:24-589:2, 590:14-591:7, 638:18-644:5]. The trial court took steps to assure that the juror could continue and was competent to make an informed decision regarding Petitioner's guilt or innocence. As the PCR judge found, Petitioner has failed to show prejudice in allowing the juror to continue with the trial through deliberations. Additionally, Petitioner has not shown the PCR judge's decision was contrary to or involved an unreasonable application of federal law or resulted in a decision based on an unreasonable determination of the facts presented.
Accordingly, the undersigned recommends the district judge grant Respondent's motion for summary judgment as to Ground Three.
4. Ground Four
As to Ground Four, Petitioner argues trial counsel should have objected during the prosecutor's opening statement when he referenced a chair as being empty because the victim was deceased. The PCR judge determined as follows:
“The opening statement serves to inform the jury of the general nature of the action and the issues involved so they can better understand the evidence presented. The solicitor is permitted in opening statement to outline the facts the state intends to prove. As long as the State introduces evidence to reasonable support the stated facts, there is no error.” State v. Kornahrens, 290 S.C. 281 (1986) (internal citations omitted). Of course, the State in this case introduced copious evidence the victim died. Further, as Counsel noted in his testimony, the defense was not contesting the fact or even the fact [Petitioner] had caused the death.
This Court finds, even if the argument was objectionable, Counsel articulated a valid reason for declining to object. See Stone v. State, 419 S.C. 370, 383, 798 S.E.2d 561, 568 (2017) (“There are a variety of reasons counsel may soundly choose not to make such an objection, including the reality that not all evidence offered by the State is harmful to the defendant.”); Roseboro v. State, 317 S.C. 292, 454 S.E.2d 312 (1996) (holding where counsel articulates a valid strategic reason for his action or inaction, counsel's performance should not be found ineffective). Counsel stated at the time the statement was made, it may not have seemed like a big deal to him. Specifically, the jury already knew [Petitioner] was charged with murder, and the defense did not context the victim died and [Petitioner] hit the victim. The Court finds credible Counsel's testimony regarding this issue. Further, the Court finds reasonable Counsel's inclination the statement was not a big deal at the time because of the defense's
theory of accident. Therefore, because Counsel was not deficient, [Petitioner's] request for relief as to this allegation is denied.[ECF No. 14-4 at 999-1000].
Although Petitioner argues the prosecutor's action and statements during opening arguments “was so prejudicial[]” it “affected Petitioner's substantial rights” and “set an improper seed in the jury mind that seriously affect[ed] the fairness of the judicial proceedings,” he fails to support his assertions or to directly address the reasoning of the PCR judge in his determination. [See ECF No. 1 at 45-46]. As stated by the South Carolina Supreme Court, “[t]he proper inquiry is not whether the Solicitor's remark was undesirable or condemnable, but whether the comment ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” State v. Bennett, 632 S.E.2d 281, 288 (S.C. 2006) (citing Darden v. Wainwright, 477 U.S. 168, 181 (1986)). Petitioner has not shown that here.
Petitioner has failed show to the PCR court's application of Strickland was unreasonable. Therefore, the undersigned recommends the district judge grant Respondent's motion for summary judgment as to Ground Four.
III. Conclusion and Recommendation
For the foregoing reasons, the recommends the court grant Respondent's motion for summary judgment [ECF No. 15] and dismiss the petition with prejudice. If the court accepts this recommendation, Petitioner's motions for a more definite statement, for a hearing, and to appoint counsel [ECF Nos. 19, 20] will be rendered moot.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
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).