Opinion
C/A 4:23-cv-1833-DCC-TER
07-08-2024
MALCOLM ANTWON WILLIAMS, Petitioner, v. WILFREDO MARTELL, WARDEN, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III, United States Magistrate Judge
Petitioner, Malcolm Antwon Williams (Petitioner), appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 2, 2023. (ECF No. 1). On October 5, 2023, Respondent filed a motion for summary judgment along with a return and memorandum. (ECF Nos. 31 and 32). The undersigned issued an order filed October 10, 2023, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (ECF No. 33). Petitioner filed a response to the motion for summary judgment on October 20, 2023, and Respondent filed a reply on October 25, 2023. Petitioner filed a sur-reply on November 21, 2023.
This habeas corpus case was automatically referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02, DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the district judge.
Neither the Federal Rules of Civil Procedure nor the Local Rules provide for the ability to file a sur-reply as a matter of right. Therefore, the sur-reply will not be addressed.
PROCEDURAL HISTORY
The undisputed procedural history will be set out below, in part, as set forth by the Respondent.
Petitioner is presently confined in the MacDougall Correctional Center of the South Carolina Department of Corrections pursuant to Orders of Commitment of the Clerk of Court for Marion County. Petitioner was indicted by the Marion County Grand Jury in a multicount indictment for kidnapping, possession of a weapon during the Commission of a Violent Crime, first-degree Criminal Sexual Conduct, Burglary in the First Degree, and Resisting Arrest. He was represented by Chief Public Defender Scott Floyd. Petitioner proceeded to trial before the Honorable Michael G. Nettles and a jury on May 8, 11-12, 2017. The jury found Petitioner not guilty as to kidnapping and Criminal Sexual Conduct but guilty as to Burglary 1st, the Weapons charge, and Resisting Arrest. Judge Nettles sentenced Petitioner to concurrent terms of imprisonment of 17 years for Burglary 1st Degree, and time served on the weapons and Resisting Arrest charges.
Direct Appeal
Petitioner filed a timely notice of appeal and a direct appeal was perfected by Appellate Defender Susan B. Hackett raising the following ground in an Anders brief:
The trial judge erred when he permitted the state to introduce evidence of an alleged threat made by Appellant to a witness almost two weeks prior to the charged offenses where the danger of unfair prejudice substantially outweighed its probative value where the state's case depended entirely upon the jury believing the witness and the threat injected emotion into the jury's calculus.(ECF No. 31-2 at 131). Petitioner's appeal was dismissed after review pursuant to Anders v. California, 386 U.S. 738 (1967) and Counsel's motion to be relieved of counsel was granted. (ECF No. 31-3 at 286-287).
PCR Action
Petitioner filed an application for post-conviction relief (PCR) on February 27, 2019. (ECF No. 31-3 at 4). Petitioner was represented by Jonathan D. Waller, Esquire. As the court discussed in the order of dismissal, Petitioner raised the following grounds:
Ineffective Assistance of Trial Counsel:
1. Failure to contact, investigate, and interview victims and witnesses;
2. Failure to argue lack of a nexus to sustain an first-degree burglary conviction;
3. Failure to present mitigating social history evidence, good character evidence, and good character witnesses;
4. Failure to object to the States unconstitutional burden shifting closing argument and move for a mistrial;
5. Failure to request tailored jury instructions to support defenses;
6. Failure to impeach witnesses and victims;
7. Failure to interview victims and witnesses that testified (same as allegation 1);
8. Failure to investigate backgrounds of witnesses and victims (same as allegation 1);
9. Failure to call witnesses that were subpoenaed to testify;
10. Failure to object to the trial court's erroneous, prejudicial, and burden shifting jury instructions;
11. Failure to submit favorable evidence into evidence;
12. Opening the door to prejudicial evidence;
13. Failure to sequester witnesses at trial;
14. Failure to object to prejudicial evidence; and
15. Failure to object to witnesses comment on another witness's mental state.
Ineffective Assistance of Appellate Counsel:
1. Failure to file a merits brief on the issue of insufficient evidence to sustain a burglary first conviction;
2. Failure to brief the lack of a nexus for burglary first; and,
3. Failure to raise the issue of charge of law for burglary first.(ECF No. 31-3 at 369).
The State filed a return and requested an evidentiary hearing. An evidentiary hearing was convened on December 19, 2019, before the Honorable D. Craig Brown. Petitioner, trial counsel, and appellate counsel testified. The PCR court issued its 4 Order of Dismissal on October 14, 2020. (ECF No. 31-3 at 80-108). A Rule 59 motion was not filed.
Petitioner filed his Johnson Petition for Writ of Certiorari on April 30, 2021, raising the following issue on appeal:
In this trial for burglary first degree based on the State's assertion that Petitioner was armed when he entered the house where he used to stay with his former girlfriend, did the PCR judge err in refusing to find trial counsel ineffective for advising Petitioner not to testify when Petitioner told the police he did not take a gun inside?(ECF No. 31-5 at 3).
On November 29, 2022, the South Carolina Court of Appeals denied certiorari. (ECF No. 31-6). The Remittitur was issued on December 16, 2022, and filed January 5, 2023. (ECF No. 31-7).
Petitioner filed this petition for writ of habeas corpus on May 2, 2023.
HABEAS ALLEGATIONS
Petitioner raised the following allegations in his petition, quoted verbatim, in part:
Ground one A-1: Ineffective Assistance of Appellate Counsel
Supporting Facts: (See Attachment) Ineffective Assistance of Appellate Counsel for Failure to file a merits brief on the issue of insufficient evidence to
sustain a Burglary first conviction. On Appendix........
Ground one A-2: Appellate counsel was ineffective for failing to brief it was a violation of the Applicant's constitutional rights for Marion County Sheriff's not doing an investigation.
Supporting Facts: (During the testimony of officer Robert Page II, (page 141, L. 5-12) he admits he never gone to the residence to check on what the victim “Aisha Graves” said. He...............
Ground one A-3: Appellate counsel ineffective for failing to brief the lack of a nexus for the Burglary First.
Supporting Facts: The elements of Burglary first as charged by Judge Nettles Appendix (page 235, l. 23-25 and page 236, l. 16-18). “The State must first prove beyond a reasonable doubt that the defendant entered a dwelling without consent.” He later says (page 236, l. 18-19). The mere entry into a dwelling without consent is not Burglary First.” I was acquitted of the alleged intended crime, kidnapping. (page 248, l. 88-9). I also lived at the residence......
Ground one A-4: Ineffective assistance of appellate counsel for failing to raise the issue of the charge of law for Burglary First.
Supporting Facts: The trial court, “Judge Nettles,” said (see page 236, l. 16-18) “Next, the state must prove beyond a reasonable doubt that the defendant intended to commit a crime, either a felony or misdemeanor, at the time of the entry.” No where in his charge of law for Burglary First
did Judge Nettles inform the jury that if the State failed to prove any part of any element of Burglary First then they cannot find me guilty. He never told the jury...........
Ground one A-5: Ineffective Assistance of Appellate Counsel for failing to argue lack of subject matter jurisdiction.
Supporting facts: Appellate counsel had knowledge and the record shows that no investigation was done. How can a judge properly reside or a case that hasn't been investigated. The trial judge never had subject matter jurisdiction. My entire
Ground two A-1: Ineffective assistance of trial counsel for failing to specify issues for why directed verdict motion should've been granted.
Supporting facts: (See attachment) (Ground 2 A-1). During my PCR I've raised this issue.
Ground two A-2: Trial counsel was ineffective for failing to present witnesses at trial.
Supporting facts: During trial there were witnesses subpoenaed, “my mother Cynthia Israel,” who could've spoke in my favor and told the jury
Ground two A-3: Trial counsel was ineffective for failing to argue a lack of nexus to sustain a conviction for Burglary First
Supporting facts: During the course of my trial, trial counsel strategy was to get the State's witness, “Aisha
Graves” to admit that I had been staying with her at the residence since I came home from the Army,....................................
Ground two A-4: Trial counsel ineffective for failing to impeach witnesses.
Supporting facts: During my trial, the State's witness, “Aisha Graves,” testified in an in-camera direct examination she wasn't dating anyone in January of 2016)....................
Ground two A-5: Ineffective assistance of trial counsel for failing to request the jury be charged with the lesser included offense of Burglary 2nd degree.
Supporting facts: During my PCR hearing, trial counsel
Ground two A-6: Ineffective assistance of trial counsel for failing to submit favorable evidence into evidence.
Supporting facts: My trial counsel “Scott Floyd” didn't submit any evidence favorable to me to help me. He had knowledge of a video statement I made to police saying I never took a gun into the Home.He..........................................
Ground two A-7: Ineffective assistance of trial counsel for failing to interview the victim and witnesses.
Supporting facts: Trial counsel had knowledge of the witnesses for my trial in advance of trial, yet, he never interviewed any of them. He knew my mother
Ground two A-8: Ineffective assistance of trial counsel for failing to present mitigating good character evidence.
Supporting facts: Trial counsel failed to present evidence of my character. The victim “Aisha Graves,” admitted on direct examination from Mr. Holt
Ground two A-9: Ineffective assistance of trial counsel for failing to object to the State's unconstitutional burden shifting closing argument and move for a mistrial.
Supporting facts: During the closing arguments, Mr. Holt tells the jury what he wants them to think about one thing................................
Ground two A-10: Ineffective assistance of trial counsel for failing to argue lack of subject matter jurisdiction.
Supporting facts: Trial counsel was ineffective for failing to argue that General Sessions Court had no jurisdiction to hear my case. Especially, after the police and both detectives admit on the stand that they didn't do an investigation and just..............................
Ground three (A-1): Ineffective assistance of PCR counsel for failing to file a Rule 59(e) [motion].
Supporting facts: (See Attachment) PCR counsel, “Jonathan Waller,” was ineffective for failing to submit a 59(e) on my behalf. The PCR Judge, “Judge Brown,” made his rulings saying I did not
present evidence of my claims. My Writ of Cert. Attorneys,..............(ECF No. 1)(errors in original).
STANDARD FOR SUMMARY JUDGMENT
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c).
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
STANDARD OF REVIEW
In addition to the standard that the court must employ in considering motions for summary judgment, the court must also consider the petition under the requirements set forth in 28 U.S.C. § 2254. Under § 2254(d),
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim-
(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 State court proceeding.
Thus, a writ may be granted if a state court “identifies the correct principle from [the Supreme] Court's decisions but unreasonably applies that principle of law” to the facts of the case. Humphries v. Ozmint, 397 F.3d 206, 216 (4th Cir. 2005) (citing Williams v. Taylor, 529 U.S. 362, 413 (2000)). However, “an ‘unreasonable application of federal law is different from an incorrect application of federal law,' because an incorrect application of federal law is not, in all instances, objectively unreasonable.” Id. “Thus, to grant [a] habeas petition, [the court] must conclude that the state court's adjudication of his claims was not only incorrect, but that it was objectively unreasonable.” McHone v. Polk, 392 F.3d 691, 719 (4th Cir. 2004). Further, factual findings “made by a State court shall be presumed to be correct,” and a Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
PROCEDURAL BAR
The United States Supreme Court has clearly stated that the procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts, Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings, if a state has procedural rules which bar its courts from considering claims not raised in a timely fashion. The two routes of appeal in South Carolina are described above, (i.e., direct appeal, appeal from PCR denial) and the South Carolina Supreme Court will refuse to consider claims raised in a second appeal which could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court.
If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. State procedural rules promote
. . . not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984).
Although the federal courts have the power to consider claims despite a state procedural bar,
. . . the exercise of that power ordinarily is inappropriate unless the defendant succeeds in showing both “cause” for noncompliance with the state rule and “actual prejudice” resulting from the alleged constitutional violation.io9Smith v. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. at 84 (1977)). See also Engle v. Isaac, 456 U.S. 107, 135 (1982).
Stated simply, if a federal habeas Petitioner can show (1) cause for his failure to raise the claim in the state courts, and (2) actual prejudice resulting from the failure, a procedural bar can be ignored and the federal court may consider the claim. Where a Petitioner has failed to comply with state procedural requirements and cannot make the required showing(s) of cause and prejudice, the federal courts generally decline to hear the claim. See Murray v. Carrier, 477 U.S. 478, 496 (1986).
Even if a Petitioner cannot demonstrate cause and prejudice for failure to raise a claim, he can still overcome procedural default by showing a miscarriage of justice. In order to demonstrate a miscarriage of justice, a petitioner must show he is actually innocent. See Carrier. 477 U.S. at 496 (holding a fundamental miscarriage of justice occurs only in extraordinary cases, “where a constitutional violation has probably resulted in the conviction of someone who is actually innocent”). Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 623 (1998). To meet this actual innocence standard, the petitioner's case must be truly extraordinary. Carrier, 477 U.S. at 496.
Respondent submits that Petitioner is not in violation of the AEDPA one-year of statute of limitations.
Respondent asserts that Petitioner's habeas grounds are either procedurally barred, not cognizable, or without merit. All of the grounds for ineffective assistance of trial counsel that were raised and ruled upon at PCR are addressed first.
Ineffective Assistance of Trial Counsel
Ground Two A-1 and Ground Two A-3
In Ground Two A-1, Petitioner argues ineffective assistance of trial counsel for failing to specify issues why a directed verdict motion should have been granted. In Ground Two A-3, Petitioner argues trial counsel was ineffective for failing to argue a lack of nexus to sustain a conviction for Burglary First. These issues were addressed at the PCR hearing, and the PCR court found as follows:
“A defendant is entitled to a directed verdict when the State fails to produce evidence of the offense charged.” State v. McHoney, 344 S.C. 85, 97, 544 S.E.2d 30, 36 (Ct App. 2001). In reviewing a motion for a directed verdict, the trial court is concerned with the existence of evidence, not its weight. Id. If there is any direct evidence or substantial circumstantial evidence reasonably tending to prove guilt, the case should be submitted to the jury. Id.
After the State rested its case, trial counsel moved for a directed verdict on all counts arguing “there's been insufficient evidence to support [the] charges.” Tr. 197. The State responded that Grave's testimony, “the DNA evidence, the evidence that backs up [Grave's] story that was collected in the vacant lot, [and] the other witnesses that were to a party - - or a part of [Grave's] version of events” taken in the light most favorable to the State supports the charges going to the jury. Tr. 197. Trial counsel renewed the motion for a directed verdict after the defense rested. Tr. 204-05.
Here, Applicant argues trial counsel was ineffective for failing to argue there was a lack of nexus for him to be convicted of first-degree burglary. However, there was no evidence at trial that Applicant was invited over to the home, or that Applicant lived at the home. Further, the only evidence at trial showed that Applicant was not allowed at the home as Applicant was previously put on trespass notice and told not to visit
the home. There was no suggestion during the State's case, either on direct or cross-examination, Applicant lived in the home or was allowed to enter the home. Finally, as explained above in subsection section 1, Applicant never told trial counsel he lived in the home, rather, Applicant told trial counsel he was living with family members at the time of the incident. Finally, even though Applicant testified at the PCR hearing, he lived at the home and was allowed over there, he still asserted he did not even enter the home the day of the incident. Therefore, the Court finds trial counsel reasonably did not argue a lack of nexus to support a burglary conviction because he was never advised by Applicant he lived at the home. Accordingly, trial counsel was not deficient for failing to make this argument
The Court finds Applicant cannot show prejudice because the direct and circumstantial evidence at trial, viewed in the light most favorable to the State, showed that Applicant entered the home with a gun after he had been put on trespass notice and told not to come back to the home. The case came down to Applicant's intent, which is a jury question. There was ample evidence presented by the State at trial to overcome a directed verdict motion . Therefore, even if trial counsel had made the lack of nexus argument asserted by Applicant, the trial court will still have been compelled, as a matter of law, to deny the directed verdict motion and submit the case to the jury. Accordingly, Applicant has failed to show he was prejudiced by trial counsel's alleged deficiency.
Based on the foregoing, the Court concludes trial counsel was not deficient for failing to make the argument asserted by Applicant. Further, the Court concludes that even if trial counsel had made the lack of nexus argument, it would not have made a difference at trial. Therefore, the Court denies this allegation and dismisses it with prejudice.(ECF No. 31-3 at 92-93).
The PCR court found trial counsel was not ineffective for failing to argue in the directed verdict motion a lack of nexus for him to be convicted of first-degree burglary because there was no evidence at trial that Petitioner was invited to the home or lived at the home. The PCR court found trial counsel's testimony that Petitioner never told him he lived in the victim's home credible. The PCR court's factual determinations regarding credibility are entitled to deference in this action. A presumption of correctness attaches to state court factual findings. 28 U.S.C. § 2244(e)(1). Evans v. Smith, 220 F.3d 306 (4th Cir. 2000). The state PCR court's findings of fact are not only entitled to the presumption of correctness, 28 U.S.C. § 2254(e)(1), but also are supported by the record. Thus, the PCR court's rejection of the ineffective assistance of counsel ground for relief did not result in an unreasonable application of Strickland and was not based upon an unreasonable determination of facts in light of the state court record. Moreover, Petitioner produced no witnesses or evidence in his PCR proceedings to support his assertions that he lived in the home that he was charged with first-degree burglary. See Bassette v. Thompson, 915 F.2d 932, 939, 941 (4th Cir.1990), cert. denied, 499 U.S. 982, 111 S.Ct. 1639, 113 L.Ed.2d 734 (1991); cf Bannister v. State, 333 S.C. 298, 509 S.E.2d 807, 809 (S.C.1998) (“This Court has repeatedly held a PCR applicant must produce the testimony of a favorable witness or otherwise offer the testimony in accordance with the rules of evidence at the PCR hearing in order to establish prejudice from the witness' failure to testify at trial.”); Clark v. State, 315 S.C. 385, 434 S.E.2d 266, 267-268 (S.C.1993) (pure conjecture as to what a witness' testimony would have been is not sufficient to show a reasonable probability the result at trial would have been different); Underwood v. State, 309 S.C. 560, 425 S.E.2d 20, 22 (S.C.1992) (prejudice from trial counsel's failure to interview or call witnesses could not be shown where witnesses did not testify at PCR hearing). Furthermore, there was evidence that Petitioner was on notice not to enter the home and that he did so while possessing a gun. Therefore, the PCR court's rejection of Petitioner's claim of ineffective assistance of counsel for failing to raise the nexus issue in the directed verdict motion fails and the PCR court's decision did not result “in a decision that was contrary to ... clearly established Federal law, ... or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §§ 2254(d)(1)-(2); Williams v. Taylor, 529 U.S. at 404-05.3 For the foregoing reasons, it is recommended that the Respondent's motion for summary judgment be granted as to Grounds Two A-1 and Two A-3.
The court will not grant relief based on the state's own standards for sufficiency of the evidence. See Wilson v. Greene, 155 F.3d 396, 407 (4th Cir. 1998).
Ground Two A-2
In Ground Two A-2, Petitioner argues that trial counsel was ineffective for failing to present witnesses at trial. Petitioner asserts that there were witnesses subpoenaed at trial that could have testified on his behalf. This issue was raised at the PCR hearing and was ruled upon by the PCR court as follows:
Here, Applicant failed to present anything concerning witnesses to be subpoenaed and there were no witnesses presented at the PCR hearing to support this allegation. See Glover, 318 S.C. at 498-99, 458 S.E.2d at 540 (stating to support a claim that trial counsel was ineffective for failing to interview or call potential witnesses, a PCR applicant must produce the witnesses at the PCR hearing or otherwise introduce the witnesses' testimony in a manner consistent with the rules of evidence). Further, trial counsel testified Applicant did not give him any witnesses to subpoena to testify at trial. This Court finds credible trial counsel's testimony that Applicant did not name any witnesses to subpoena to testify at trial. Therefore, this allegation is denied and dismissed with prejudice because Applicant has failed to meet his burden of proof as to prejudice, and trial counsel was not deficient in failing to subpoena the witnesses because Applicant did not inform him of any witnesses to subpoena to testify at trial.(ECF No. 31-3 at 98-99).
Petitioner produced no witnesses or evidence in his PCR proceedings to support his assertions that there were witnesses that were or should have been subpoenaed that would have benefited him. See Bassette v. Thompson, 915 F.2d at 939, 941; cf. Bannister v. State, 509 S.E.2d at 809; and, Clark v. State, 434 S.E.2d at 267-268 (supra). Prejudice from trial counsel's failure to interview or call witnesses cannot be shown where the witnesses do not testify at the PCR hearing. See Glover v. State, 458 S.E.2d 538, 540 (S.C. 1995) (applicant's allegations, alone, will not support a finding of prejudice when applicant claims counsel was ineffective for failing to investigate witnesses; instead, applicant must show the results of an investigation would have resulted in a different outcome at trial). Therefore, the PCR court's rejection of Petitioner's claim of ineffective assistance of counsel for failing to call subpoenaed witnesses and the PCR court's decision did not result “in a decision that was contrary to ... clearly established Federal law, ... or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §§ 2254(d)(1)-(2); Williams v. Taylor, 529 U.S. at 404-05.3. Also, the PCR court found trial counsel's testimony credible regarding this issue and such factual finding is entitled to deference. For the foregoing reasons, Respondent's motion for summary judgment be granted as to Ground Two A-2.
Ground Two A-4
In Ground Two A-4, Petitioner argues that trial counsel was ineffective for failing to impeach witnesses. This issue was raised an ruled upon by the PCR court. The PCR court found that this issue was “substantially the same as Applicant's allegations (a)(1), (6), (7), and (8) against trial counsel.” Additionally, the PCR court found that Petitioner failed to present any evidence, or particular issues, on which victims or witnesses should have been impeached and on what issues they should have been so impeached. The issue was denied and dismissed with prejudice. (ECF No. 313 at 98).
As set forth in the PCR order, grounds a(1) Failure to contact, investigate, and interview victims and witnesses; a(6) Failure to impeach witnesses and victims; a(7) Failure to interview victims and witnesses that testified; and a(8) Failure to investigate backgrounds of witnesses and victims.
Petitioner has failed to offer sufficient argument to satisfy the Strickland test. Petitioner has not shown the PCR court's analysis of this Ground Two A-4 misapplied clearly established federal law or, even if there was an error, that it was unreasonable. See Williams, 529 U.S. at 410. In a post-conviction relief action, an applicant bears the burden of proving the allegations in his or her application. Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). Where the application alleges ineffective assistance of counsel as a ground for relief, the applicant must prove that “counsel's conduct so undermined the proper functioning of the adversarial process that [it] cannot be relied upon as having produced a just result.” Strickland, 466 U.S. 668; Butler, 286 S.C. at 442, 334 S.E.2d at 814. Petitioner produced no witnesses or evidence in his PCR proceedings to support his assertion as to which victim or witnesses should have been impeached and reasons. Accordingly, Petitioner has also not shown by clear and convincing evidence the PCR court reached an unreasonable factual determination of this issue given the evidence and record before the court.
Therefore, the PCR court's rejection of Petitioner's claim of ineffective assistance of counsel for failing to impeach witnesses fails and the PCR court's decision did not result “in a decision that was contrary to ... clearly established Federal law, ... or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §§ 2254(d)(1)-(2); Williams v. Taylor, 529 U.S. at 404-05.3 For the foregoing reasons, Respondent's motion for summary judgment should be granted as to Ground Two A-4.
Ground Two A-5
In Ground Two A-5, Plaintiff argues ineffective assistance of counsel for failing to request the jury be charged with the lesser included offense of Burglary 2nd degree.This issue was raised at the PCR hearing, and the PCR court found as follows:
When a petitioner's claim rests solely upon an interpretation of state case law and statutes, it is not cognizable on federal habeas review. Weeks v. Angelone, 176 F.3d 249, 262 (4th Cir. 1999) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”)).
. . . Specifically, Applicant clarified at the PCR hearing that trial counsel should have requested a jury instruction for a lesser-included offense for first-degree burglary. The Court disagrees.
...
Here the only evidence at trial was that Applicant unlawfully entered the house armed with a shotgun, and there was no evidence presented at trial to support a lesser included offense. Therefore, trial counsel reasonably did not request a lesser included offense be charged to the jury because there was no evidence to support the lesser included charge.
Further, Applicant has failed to show prejudice resulted in trial counsel's alleged deficiency of failing to request a lesser included offense. Because there was no evidence to support a lesser included offense to the first-degree burglary charge, it would have been error for the trial court to give such a requested charge because it was not supported by the record.
Accordingly, the Court denies relief on this allegation and dismisses it with prejudice.(ECF No. 31-3 at 97-98).
Petitioner has failed to offer sufficient argument to satisfy the Strickland test. Petitioner has not shown the PCR court's analysis of this Ground Two A-5 misapplied clearly established federal law or, even if there was an error, that it was unreasonable. See Williams, 529 U.S. at 410. In a post-conviction relief action, an applicant bears the burden of proving the allegations in his or her application. Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). Where the application alleges ineffective assistance of counsel as a ground for relief, the applicant must prove that “counsel's conduct so undermined the proper functioning of the adversarial process that [it] cannot be relied upon as having produced a just result.” Strickland, 466 U.S. 668; Butler, 286 S.C. at 442, 334 S.E.2d at 814. The PCR court found the only evidence submitted at trial was that Petitioner unlawfully entered the house armed with a shotgun and no evidence was presented at trial to support a lesser included offense. Petitioner did not present any evidence at PCR to support his assertion. Petitioner cannot show prejudice since there was no evidence produced at trial to support a lesser included offense to the first- degree burglary. The state PCR court's findings of fact are not only entitled to the presumption of correctness, 28 U.S.C. § 2254(e)(1), but also are supported by the record. Thus, the PCR court's rejection of the ineffective assistance of counsel ground for relief did not result in an unreasonable application of Strickland and was not based upon an unreasonable determination of facts in light of the state court record. Therefore, the PCR court's rejection of Petitioner's claim of ineffective assistance of counsel for failing to raise the nexus issue on directed verdict fails and the PCR court's decision did not result “in a decision that was contrary to ... clearly established Federal law, ... or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §§ 2254(d)(1)-(2); Williams v. Taylor, 529 U.S. at 404-05.3 For the foregoing reasons, Respondent's motion for summary judgment should be granted as to Ground Two A-5.
South Carolina law provides that “[a] person is guilty of burglary in the first degree if the person enters a dwelling without consent and with intend to commit a crime in the dwelling, and ... when in effecting entry or while in the dwelling or in immediate flight, he or another participant in the crime is armed with a deadly weapon or explosive.” S.C. Code Ann. § 16-11-311(A)(1)(a). It also provides that “[a] person is guilty of burglary in the second degree if the person enters a dwelling without consent and with intent to commit a crime therein.” S.C. Code Ann. § 16-11-312(A). See Mahaffey v. Warden Perry Corr. Inst., 2020 WL 8771345, at *8 (D.S.C. Dec. 29, 2020), report and recommendation adopted, No. 8:20-CV-01880-JD, 2021.
Ground Two A-6
In Ground Two A-6, Plaintiff argues ineffective assistance of trial counsel for failing to submit favorable evidence. Specifically, Petitioner asserts that trial counsel did not submit any favorable evidence such as a video statement made to the police in which Petitioner stated he never took a gun into the home. Petitioner asserts trial counsel was aware of the video. This issue was raised at the PCR hearing and ruled upon. The PCR court found as follows:
Applicant asserts trial counsel was deficient for failing to submit favorable evidence at trial. However, Applicant failed to testify or specify what evidence trial counsel should have introduced at trial to aid the defense. Therefore, Applicant has failed to prove trial counsel was deficient.
Further, Applicant cannot show prejudice resulted from trial counsel's alleged deficiency because the alleged “favorable evidence” was not introduced at the PCR hearing. This Court does not know what the alleged evidence is or how it would have changed the trial. Therefore, Applicant has failed to meet his burden of proof on this allegation. . .(ECF No. 31-3 at 99-100).
Petitioner produced no “favorable” evidence in his PCR proceedings to support his assertion that trial counsel should have introduced favorable evidence and, therefore, the PCR court found that it did not know what the alleged evidence was or how it would have changed the trial. (ECF No. 31-3 at 100). Petitioner has not shown the PCR court's analysis of this Ground Two A-6 misapplied clearly established federal law or, even if there was an error, that it was unreasonable. See Williams, 529 U.S. at 410. In a post-conviction relief action, an applicant bears the burden of proving the allegations in his or her application. Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). Where the application alleges ineffective assistance of counsel as a ground for relief, the applicant must prove that “counsel's conduct so undermined the proper functioning of the adversarial process that [it] cannot be relied upon as having produced a just result.” Strickland, 466 U.S. 668; Butler, 286 S.C. at 442, 334 S.E.2d at 814. Petitioner has failed to offer sufficient argument to satisfy the Strickland test. Accordingly, Petitioner has also not shown by clear and convincing evidence that the PCR court reached an unreasonable factual determination of this issue given the evidence and record before it, and this ground should be dismissed.
In his response, Petitioner argues that trial counsel should have introduced the video of his interview with the police. Respondent argues that trial counsel attempted to have the video admitted at trial but it was excluded by the trial court finding it was not admissible because it was self-serving hearsay of the Defendant, not an admission of guilt or a confession which are exceptions. (ECF No. 31 at 66).
Ground Two A-7
In this ground, Petitioner argues ineffective assistance of trial counsel for failing to interview the victim and witnesses. This issue was addressed during the PCR hearing. The PCR court found that several of Petitioner's arguments were substantially the same and combined the analysis of them in the order. The PCR Court found as follows:
Failure to contact, investigate, and interview victims and witnesses
Applicant alleges trial counsel was ineffective for failing to contact, investigate, and interview victims and witnesses before trial. The Court disagrees, and, for the reasons discussed below, denies relief on this allegation and dismisses it with prejudice.
. . . to support a claim that trial counsel was ineffective for failing to interview or call potential witnesses, a PCR applicant must produce the witnesses at the PCR hearing or otherwise introduce the witnesses' testimony in a manner consistent with the rules of evidence. Glover v. State. . . The applicant's mere speculation about what the witnesses' testimony would have been cannot, by itself, satisfy the applicant's burden of showing prejudice.
Applicant alleges trial counsel was ineffective for failing to contact, investigate, and interview the victims and witnesses before trial. Applicant testified at the PCR hearing he informed trial counsel that he was listed as the head-of-household, had clothes and property still at the residence, and he had witnesses who knew he was living there. Applicant testified he wanted trial counsel to look into that information because it was not possible for him to commit burglary on his own residence. Specifically, applicant testified he asked trial counsel to speak to his aunt, Felicia Williams, his mother, his grandfather, his step-father, and his sister because they all knew he lived at the residence. Applicant also testified that he did not go into the house that day. Applicant testified he drove past the house, and Graves called him asking why he passed by. Applicant stated he turned around, parked on the side of the house, and went up to the steps of ths house. However, Graves came outside to the steps, and he did not enter the home.
Trial counsel testified Applicant never told him he lived at the residence with Graves. Trial counsel stated Applicant informed him that he was living with his family members-either his uncle or his mother. . . Trial counsel explained to Applicant the State alleged that Applicant entered Grave's dwelling without permission on January 8 armed with a weapon, and committed first-degree burglary and kidnapping. Then, Applicant took Graves away from the home and committed first-degree CSC, and that Applicant was in possession of the weapon during those crimes. Finally, Applicant resisted arrest when stopped by law enforcement.
. . . Trial counsel stated that at certain times during their discussions, Applicant told trial counsel he did not have a gun. However, Graves testified Applicant had a gun when he entered the home. Additionally,
trial counsel testified he was provided a video recording of Applicant's post-Miranda statement to law enforcement where Applicant acknowledged having a gun. However, the State did not seek to introduce this evidence at trial.
Trial counsel recalled discussing potential witnesses with Applicant, but did not specifically recall the names of the witnesses; however, trial counsel did remember that Applicant had family members present for trial, and recalled speaking to some of them. Further, trial counsel testified he decided not to call any other witnesses at trial believing it was the right thing to do at the time. Trial counsel stated that in hindsight, he probably would make the same decision.
Applicant has alleged trial counsel failed to investigate whether Applicant lived with Graves, because Applicant could not have burglarized his own home. This Court finds not credible Applicant's testimony he told trial counsel he was living at the residence at the time of the incident. Specifically discrediting is Applicant's own testimony that he never entered the home that day, and trial counsel's credible testimony that Applicant told him he did not live at the residence but lived with family members. Therefore, trial counsel reasonably did not investigate whether Applicant lived with Graves at the home because Applicant told trial counsel he did not live there but lived with family members.
...
Further, Applicant presented no evidence or testimony other than his non-credible self-serving testimony supporting his assertion he lived with Graves at the time of the incident, therefore Applicant has failed to show prejudice resulted from trial counsel's alleged failure to investigate and interview witnesses.
Finally, Applicant testified he told trial counsel his Aunt in North Carolina got pictures off of Facebook of the women (presumably Graves and Dean) with guns. Applicant failed to specify how these Facebook pictures could have supported his defense theory; therefore, Applicant has failed to meet his burden of proof as to deficiency. Further,
Applicant has failed to provide these pictures or testimony from his Aunt in North Carolina regarding the pictures. . .
Based on the forgoing, the Court finds trial counsel reasonably investigated the case, and Applicant has failed to show prejudice resulted from trial counsel's alleged deficiency of failing to investigate and interview potential witnesses. Therefore, this allegation is denied and dismissed with prejudice.(ECF No. 31-1 at 88-92).
The PCR court found trial counsel was not ineffective for failing to interview the victim and witnesses. The PCR court found trial counsel credible that Petitioner never told him that he lived at the residence with the victim. Further, the victim testified at trial that Petitioner had a gun when he entered the residence, and counsel was provided a video where Petitioner acknowledged having a gun. Trial counsel stated that after speaking to some of the family members, he decided not to call any other witnesses at trial believing it to be the right decision as his counsel. Petitioner did not present any evidence at trial or at PCR hearing that he lived at the residence with the victim other than his own testimony.
Petitioner produced no witnesses or evidence in his PCR proceedings to support his assertion that counsel was ineffective for failing to investigate and interview witnesses. Petitioner produced no witnesses or evidence to support his assertions that he lived in the residence with the victim. See Bassette v. Thompson, 915 F.2d at 939, 941; cf. Bannister v. State, 509 S.E.2d at 809; Clark v. State, 434 S.E.2d at 267-268. 30 Petitioner has failed to offer sufficient argument to satisfy the Strickland test. Petitioner has not shown the PCR court's analysis of this Ground two A-7 misapplied clearly established federal law or, even if there was an error, that it was unreasonable. See Williams, 529 U.S. at 410. In a post-conviction relief action, an applicant bears the burden of proving the allegations in his or her application. Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). Where the application alleges ineffective assistance of counsel as a ground for relief, the applicant must prove that “counsel's conduct so undermined the proper functioning of the adversarial process that [it] cannot be relied upon as having produced a just result.” Strickland, 466 U.S. 668; Butler, 286 S.C. at 442, 334 S.E.2d at 814. The PCR court's factual determinations regarding credibility are entitled to deference in this action. A presumption of correctness attaches to state court factual findings. 28 U.S.C. § 2244(e)(1). Evans v. Smith, 220 F.3d 306 (4th Cir. 2000). The state PCR court's findings of fact are not only entitled to the presumption of correctness, 28 U.S.C. § 2254(e)(1), but also are supported by the record. The PCR court's rejection of Petitioner's claim of ineffective assistance of counsel for failing to investigate and interview witnesses prior to trial did not result “in a decision that was contrary to ... clearly established Federal law, ... or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §§ 2254(d)(1)-(2); Williams v. Taylor, 529 U.S. at 404-05.3 For the foregoing reasons, Respondent's motion for summary judgment should be granted as to Ground two A-7.
Ground Two A-8
In Ground Two A-8, Plaintiff argues ineffective assistance of trial counsel for failing to present mitigating good character evidence. The PCR court denied and dismissed this ground finding:
. . . Applicant has failed to show how trial counsel was deficient for failing to introduce good character evidence or good character witnesses at trial. Applicant merely asserts trial counsel was deficient for failing to do so. However, Applicant failed to testify or specify what witnesses or good character evidence trial counsel should have introduced at trial. The Court finds Applicant has wholly failed to meet his burden as to this allegation.
...
Further, Applicant cannot succeed on this allegation as he cannot show prejudice because Applicant did not produce the mitigating good character evidence, witnesses, or the pictures at the PCR hearing.... This Court finds Applicant has failed to show trial counsel was deficient in failing to present mitigating good character evidence, witnesses, and for not contacting Applicant's Aunt regrading the pictures and Applicant has failed to show how trial counsel's alleged deficiency prejudiced Applicant.(ECF No. 31-3 at 93-96).
Petitioner has failed to offer sufficient argument to satisfy the Strickland test. Petitioner has not shown the PCR court's analysis of this Ground Two A-8 misapplied clearly established federal law or, even if there was an error, that it was unreasonable. See Williams, 529 U.S. at 410. In a post-conviction relief action, an applicant bears the burden of proving the allegations in his or her application. Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). Where the application alleges ineffective assistance of counsel as a ground for relief, the applicant must prove that “counsel's conduct so undermined the proper functioning of the adversarial process that [it] cannot be relied upon as having produced a just result.” Strickland, 466 U.S. 668; Butler, 286 S.C. at 442, 334 S.E.2d at 814. Petitioner produced no evidence in his PCR proceedings to support his assertion as to counsel failing to present mitigating good character evidence. Here, Petitioner has failed to demonstrate his counsel's performance was deficient, and Respondent should be granted summary judgment on Petitioner's Ground Two A-8. See Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (holding that federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it resulted in a decision that was an unreasonable determination of the facts based on the evidence presented in the state court proceeding).
Ground Two A-9
Plaintiff argues ineffective assistance of trial counsel for failing to object to the State's unconstitutional burden shifting closing argument and move for a mistrial. This issue was addressed at PCR and ruled upon as follows:
Applicant failed to produce any evidence regarding the State's closing argument or why trial counsel should have moved for a new trial. However, the Court has fully reviewed the State's closing argument and finds it was not burden shifting and that Applicant was prejudiced in any way.
...
The State's closing argument is found on pages 206-219 of the transcript. This Court has reviewed the State's closing argument and finds nothing in the closing argument unconstitutionally shifted the burden of proof. Indeed, every time it brought up the burden of proof, the State indicated it had the burden of proving the charges against Applicant beyond a reasonable doubt. Tr. 208-09;218. The Court concludes the State's closing argument was contained to the records and its reasonable inferences. Because the State's closing argument was not unconstitutionally burden shifting, trial counsel was not deficient for failing to object.(ECF No. 31-3 at 97). The Court further found that the State's closing argument did not result in Petitioner receiving an unfair trial. The PCR court found that the jury clearly understood the State had the burden of proving all charges beyond a reasonable doubt as evidenced by the jury acquitting Petitioner of the kidnapping and First-degree CSC charges. Thus, Petitioner could not show prejudice. Id.
After a review of the trial transcript and PCR transcript, the court finds that the Petitioner has failed to show that the state court's rejection of these claims were contrary to, or involved an unreasonable application of, clearly established federal law. The undersigned also finds Petitioner failed to establish that the state courts' rulings resulted in a decision that was based on an unreasonable determination of the facts. Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (holding that federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it resulted in a decision that was an unreasonable determination of the facts based on the evidence presented in the state court proceeding); Williams v. Taylor, 529 U.S. 420 (2000); Bell v. Jarvis, 236 F.3d 149, 157-58 (4th Cir. 2000); 28 U.S.C. § 2254(e)(1) (finding the determination of a factual issue by the state court shall be presumed correct unless rebutted by clear and convincing evidence). Accordingly, the undersigned recommends Respondent's motion for summary judgment be granted as to the above grounds of ineffective assistance of trial counsel.
Ground Two A-10
In Ground Two A-10, Petitioner argues ineffective assistance of trial counsel for failing to argue lack of subject matter jurisdiction. Specifically, Petitioner argues that counsel failed to argue that “General Sessions Court had no jurisdiction to hear my case.” Respondent argues that this issue is procedurally barred in that it was not raised and ruled upon by the state court.
The court agrees and finds this issue procedurally barred as it was not ruled on by the PCR court and a Rule 59e motion was not filed. Petitioner has failed to show cause and actual prejudice, or actual innocense to overcome the default. Wainwright v. Sykes, 433 U.S. 72, 87, 90-91 (1977). Petitioner cannot show ineffective assistance of PCR counsel to overcome the procedural default. Petitioner did develop a Martinez argument. However, even if he attempted, the Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012)(establishing narrow exception to procedural default where initial-review collateral counsel is ineffective for failing to raise meritorious claim of ineffective assistance of trial counsel) exception does not extend to PCR appellate counsel. Martinez applies to ineffective assistance of PCR counsel in not raising an ineffective assistance of counsel claim at PCR-not ineffective assistance of direct appeal counsel or PCR appellate counsel. See Davila v. Davis, 582 U.S. 521, 529 (2017) (declining to “extend Martinez to allow a federal court to hear a substantial, but procedurally defaulted, claim of ineffective assistance of appellate counsel”); Brown v. Warden Lee Corr. Inst., C/A No. 2:18-01276-DCC, 2019 WL 4509190, at *5 (D.S.C. Sept. 19, 2019) (“With respect to the grounds found to be procedurally barred for failure to raise them to the Supreme Court of South Carolina in Petitioner's petition for writ of certiorari or on direct appeal, Petitioner has failed to establish cause. The Martinez exception does not extend to direct appeal claims or claims that PCR appellate counsel was ineffective.”) (collecting cases). Accordingly, it is recommended that Respondent's motion for summary judgement be granted and this issue denied.
Ground Three A-1- Ineffective Assistance of PCR Counsel
In Ground Three A-1, Petitioner argues ineffective assistance of PCR counsel for failing to file a Rule 59(e) motion. Ineffective assistance of PCR counsel is not cognizable in habeas review. This issue should be dismissed as “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.” 28 U.S.C.A. § 2254(i) (West Supp.2001). It is well-established that the petitioner possesses no constitutional right to appointed counsel in post-conviction proceedings. See Wise v. Williams, 982 F.2d 142, 144 (4th Cir. 1992) (“There is no constitutional right to an attorney in state post-conviction proceedings.”) (citing Coleman v. Thompson, 501 U.S. 772, 752 (1991)). Moreover, deficiencies in a post-conviction proceeding are not cognizable under 28 U.S.C. § 2254. Heyward v. Burtt, 2007 WL 2021888 (D.S.C. July 6, 2007) citing Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990 (1987); and Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir.1988). Further, a habeas court cannot grant relief based on errors occurring during state collateral review proceedings. See Wright v. Angelone, 151 F.3d 151, 159 (4th Cir.1998).
Petitioner appears to argue in response that he is not attempting to argue counsel was ineffective but argue ineffective assistance of PCR counsel to overcome the default. However, error by appellate counsel does not overcome procedural default. Ineffective assistance of PCR counsel can only be raised to overcome a procedure bar on a substantial claim of ineffective assistance of trial counsel that PCR counsel failed to raise. Again, Petitioner has not developed an argument pursuant to Martinez v. Ryan, supra. Any attempt by Petitioner to overcome procedural bar pursuant to Martinez, is without merit. In Martinez, the Supreme Court established a “limited qualification” to the rule in Coleman v. Thompson, 501 U.S. 722, that any errors of PCR counsel cannot serve as a basis for cause to excuse a petitioner's procedural default of a claim of ineffectiveness of trial counsel. Martinez, 132 S.Ct. at 1319.To establish cause under Martinez, Petitioner must demonstrate (1) that his PCR counsel was ineffective under Strickland and (2) that “the underlying ineffective-assistance-of-counsel claim is a substantial one.” Martinez, 132 S.Ct. at 1318. Petitioner has not shown that his PCR counsel was ineffective under Strickland or that the underlying ineffective assistance of trial counsel claim is substantial to overcome the default. Therefore, Petitioner has failed to show cause and prejudice or actual innocense to overcome the procedural bar. Accordingly, Respondent's motion for summary judgment should be granted with respect to this issue.
Claims of Ineffective Assistance of Appellate Counsel
In his habeas petition, Petitioner raises five claims of ineffective assistance of appellate counsel on direct appeal. However, at the PCR hearing, it was noted that Petitioner only raised three grounds of ineffective assistance of appellate (direct appeal) counsel for failing to: (1) file a merits brief arguing there was insufficient evidence to sustain a first-degree burglary conviction; (2) raise the issue of lack of nexus for first-degree burglary; and (3) failing to raise the issue that the trial court erred in charging first-degree burglary. The PCR court found that these three issues all dealt with appellate counsel failing to raise an issue with regard to a directed verdict.
Thus, Grounds One A-1, One A-3, and One A-4 were raised and ruled upon at the PCR hearing. The PCR court found that Petitioner testified he spoke to appellate counsel several times telling her what issues he wanted her to raise in the direct appeal, sending her a copy of a dismissal of the trespassing ticket, and telling her that he was living at the home so that he wanted her to raise a directed verdict issue as to the Burglary-First. However, counsel did not raise the issues Petitioner requested. Appellate counsel testified that after reviewing the entire transcript, exhibits and documents, she found, in her professional opinion, that there were no preserved issues with merit. Appellate counsel testified that she had notes from telephone calls with the Petitioner in which he asked her to brief the issue that the trial judge failed to direct a verdict but that she did not brief the issue because she did not think it was properly preserved as it was a general motion without any specifics. She testified that case law requires the motion needs to be specific and based upon Grave's testimony, she believed there was direct and substantial circumstantial evidence of the burglary.
The PCR court found that all of Petitioner's allegations against his appellate counsel dealt with her failure to brief the directed verdict issue and, since the issues were without merit, appellate counsel was not deficient in failing to raise them. Petitioner failed to show he was prejudiced by any deficiencies. The PCR court found that Grave's testimony alone was enough to survive a directed verdict as there was evidence presented that Petitioner entered the home armed with a gun. The PCR court held that “. . . even if appellate counsel had briefed the directed verdict issue, Applicant's conviction would have been affirmed because the evidence at trial showed the question was properly submitted to the jury.” (ECF No. 31-3 at 104). Further, Petitioner did not submit any evidence at trial that he lived with Graves in the home to support such a motion. Thus, appellate counsel cannot be deficient for failing to present an issue that was not raised at trial, and that was not supported by any evidence in the record. The PCR court found that the charge of First-Degree Burglary was supported by the record while a lesser-included offense was not supported by the record and that the trial court properly charged first-degree Burglary.
When a petitioner's claim rests solely upon an interpretation of state case law and statutes, it is not cognizable on federal habeas review. Weeks v. Angelone, 176 F.3d 249, 262 (4th Cir. 1999) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”)).
The Petitioner has failed to show that the state court's rejection of this claim was contrary to, or involved an unreasonable application of, clearly established federal law. Petitioner failed to establish that the state courts' rulings resulted in a decision that was based on an unreasonable determination of the facts. See Evans v. Smith, supra.; 28 U.S.C. § 2254(e)(1) (finding the determination of a factual issue by the state court shall be presumed correct unless rebutted by clear and convincing evidence). Accordingly, the undersigned recommends Respondent's motion for summary judgment be granted as to Grounds One A-1, One A-3, and One A-4.
Grounds One A-2 and One A-5
Respondent asserts that the issues raised in Grounds One A-2 and One A-5 are procedurally barred. In Ground One A-2, Petitioner argues ineffective assistance of appellate counsel for failing to brief that it was a violation of the Applicant's constitutional rights for the Marion County Sheriff not to conduct an investigation.
Respondent argues that this claim is procedurally barred as this issue was not preserved for appeal with an objection below. Petitioner argues in response that he testified to this ground at his PCR hearing, and PCR counsel was ineffective for not filing a Rule 59e motion on this issue. Petitioner attempts to use ineffective assistance of PCR counsel to overcome the procedural default.
As set forth previously, ineffective assistance of PCR counsel is not cognizable for habeas relief. Additionally, Martinez does not overcome the procedural bar with regard to this issue. See Brown v. Warden Lee Corr. Inst., C/A No. 2:18-01276-DCC, 2019 WL 4509190, at *5 (D.S.C. Sept. 19, 2019) (“With respect to the grounds found to be procedurally barred for failure to raise them to the Supreme Court of South Carolina in Petitioner's petition for writ of certiorari or on direct appeal, Petitioner has failed to establish cause. The Martinez exception does not extend to direct appeal claims or claims that PCR appellate counsel was ineffective.”) (collecting cases).
In Ground One A-5, Petitioner argues ineffective assistance of appellate counsel for failing to argue lack of subject matter jurisdiction. He argues that since the case had not been investigated by the Sheriff's office, the trial judge did not have jurisdiction to properly reside over the case. Respondent argues that this issue is procedurally barred. In response, Petitioner argues that lack of subject matter jurisdiction can be raised at any time so that procedural bar does not apply to this ground. In reply, Respondent contends that Petitioner is confusing subject matter jurisdiction in a federal civil case with a federal habeas corpus action.
In addition to the issues being procedurally barred, Respondent argues that Petitioner cannot show prejudice or actual innocense to overcome the procedural bar. Petitioner was arrested while he was with the victim, and his claim of actual innocense based on scrivener's errors in the warrant, booking report, and use of force report fails. (ECF No. 37 at 7). Petitioner was not tried based on theses documents but on the indictment of the grand jury charging him with committing Burglary 1st, Possession of a Weapon, and Resisting Arrest, as well as, the evidence presented at trial. (ECF No. 37 at 8). Further, Respondent asserts that Petitioner cannot show a due process violation because the Sheriff's Office conducted an investigation of his crimes and, that while the investigation may not have suited him, an investigation was conducted.
Based on the record, these issues are procedurally defaulted and cause and prejudice or actual innocense have not been shown to overcome the default. Thus, Respondent's motion for summary judgment as to Ground One A-2 and Ground One A-5 should be granted.
The Petitioner's argument that he can challenge at any time the state's lack of subject matter jurisdiction also fails because such claim is not cognizable in this federal habeas proceeding. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)(holding that federal habeas review is not available to review errors of state law); Wright v. Angelone, 151 F.3d 151, 158 (4th Cir. 1998)(holding that the issue of whether or not a state court has subject matter jurisdiction is an issue of state law).
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's motion for summary judgment (ECF No. 32) be GRANTED in its ENTIRETY, and the petition be dismissed without an evidentiary hearing.
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court Post Office Box 2317 Florence, South Carolina 29503
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).