Opinion
CA 9:21-cv-01498-DCC-MHC
05-28-2024
Milciades Alcantara, Petitioner, v. Warden of McCormick Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry United States Magistrate Judge
Petitioner Milciades Alcantara (“Petitioner”), a state prisoner proceeding pro se, seeks habeas relief pursuant to 28 U.S.C. § 2254. Respondent Warden of McCormick Correctional Institution (“Respondent”) filed an Amended Motion for Summary Judgment, along with a Return and Memorandum (“Motion”). ECF Nos. 60, 61. Petitioner filed a Response in Opposition. ECF No. 69. Respondent filed a Reply. ECF No. 70. The matter is ripe for review.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the assigned district judge referred the Motion to the undersigned for a report and recommendation. For the reasons that follow, the Court recommends that Respondent's Motion be granted and the Petition be dismissed with prejudice.
I. BACKGROUND
In August 2009, the Spartanburg County Grand Jury indicted Petitioner for two counts of armed robbery and possession of a knife during the commission of a violent crime, two counts of kidnapping, and one count of criminal sexual conduct (“CSC”), first degree. ECF No. 20-2 at 6977. On February 8-10, 2010, Petitioner proceeded to trial before the Honorable J. Derham Cole (“Trial Judge”), represented by counsel, Richard H. Whelchel (“Trial Counsel”) and Tanya Jones. ECF No. 20-1 at 3-300. The jury found Petitioner guilty as charged, and the Trial Judge sentenced him to an aggregate sentence of 50 years-fifteen years for one armed robbery, five years for one possession of a weapon during commission of a violent crime, and ten years for one kidnapping charge to run concurrently; twenty-five years for the first-degree CSC charge to run consecutively; ten years for the second armed robbery charge, ten years for the second kidnapping charge, and five years for the second possession of a weapon during commission of a violent crime charge to run concurrently to each other, but consecutively to the previous sentences imposed. ECF No. 201 at 294-300.
Petitioner timely appealed by way of an Anders brief, but his appeal was dismissed by the South Carolina Court of Appeals. See State v. Alcantara, No. 2012-UP-108, 2012 WL 10830206, at *1 (S.C. Ct. App. Feb. 22, 2012). The remittitur was returned on March 12, 2012. See ECF No. 20 at 6-7; ECF No. 6-7.
Anders v. California, 386 U.S. 738 (1967) (providing a framework for counsel to withdraw if an appeal lacks merit).
Although Respondent cites to the Anders brief in reciting the procedural history, the direct appeal documents were not included in the PCR Appendix, nor were they filed by Respondent as part of the state court record.
On January 7, 2013, Petitioner filed a pro se application for post-conviction relief (“PCR”) alleging various claims of ineffective assistance of counsel. ECF No. 20-1 at 302; ECF No. 20-2 at 1-8. Specifically, Petitioner alleged:
1. Ineffective assistance of counsel, in that;
i. Counsel failed to diligently pursue any negotiated plea deal as requested by Applicant,
ii. Counsel failed to move for a change of venue for trial,
iii. Counsel did not come to see Applicant regarding the case until two weeks before trial and the visits were short,
iv. Counsel failed to effectively cross-examine witnesses at trial, v. Counsel advised Applicant not to testify,
vi. Counsel failed to prove defense of innocence by demonstrating a prior association with one of the alleged victims.ECF No. 20-2 at 60.
On September 16, 2014, after briefing by the State, the Honorable Roger L. Couch (“PCR Judge”), held an evidentiary hearing, at which Petitioner was represented by J. Brandt Rucker (“PCR Counsel”). ECF No. 20-2 at 14-57. The PCR Judge heard testimony from Petitioner and Trial Counsel. ECF No. 20-2 at 15. On May 8, 2015, the PCR Judge denied Petitioner's PCR application and dismissed it with prejudice. ECF No. 20-2 at 59-68.
Petitioner timely appealed. On December 21, 2015, Appellate Defender Tiffany L. Butler (“PCR Appellate Counsel”) filed a petition for writ of certiorari on Petitioner's behalf and presented the following issue:
Did the PCR judge err by finding trial counsel provided effective representation where counsel failed to move for a severance of the two separate alleged offenses, armed robbery and kidnapping, against Petitioner where the offenses were charged in separate indictments, did not arise out of a single chain of circumstances, and were not provable by the same evidence?ECF No. 20-3 at 3. On May 6, 2016, the State filed a return to the petition for writ of certiorari. ECF No. 20-4. On March 4, 2017, the Supreme Court of South Carolina denied certiorari. ECF No. 20-5. The remittitur issued on April 11, 2017. ECF No. 20-6.
While his first PCR appeal was pending, Petitioner filed a second PCR action on December 19, 2016, raising additional grounds of ineffective assistance of counsel on the basis of newly discovered evidence. ECF No. 20-7. The State filed a return and motion to dismiss. ECF No. 209. On November 3, 2017, a conditional order of dismissal was entered by the Honorable J. Mark Hayes, II, advising Petitioner that his application would be dismissed with prejudice if he did not respond with reasons the second PCR application should not be dismissed in its entirety. ECF No. 20-10. The conditional order of dismissal indicated that dismissal was appropriate in light of the statute of limitations, the disfavor of successive PCR applications, the lack of newly discovered evidence, and res judicata. ECF No. 20-10 at 3-7. Petitioner filed a response. ECF No. 20-11. Petitioner was then appointed counsel by the State court. ECF No. 20-13. Thereafter, on September 23, 2019, Susannah Ross (“Second PCR Counsel”), filed an amended PCR application on Petitioner's behalf, asserting claims of ineffective assistance of counsel and due process violations. ECF No. 20-8. Specifically, the claims were:
1. Ineffective assistance of trial counsel for failure to
a. Move to quash the indictment or investigate the grand jury proceedings; and
b. Properly communicate and advise applicant regarding the State's plea offer.
2. Due Process violations to irregularities in the grand jury proceedings and improper collection of DNA evidence by lead detective Lorin Williams because the plea was not knowingly and voluntarily made because the Applicant was not advised that the guilty plea amount of time he could receive.ECF No. 20-8 at 1.
On November 12, 2019, a PCR evidentiary hearing was held before the Honorable Eugene C. Griffith, (“Second PCR Judge”). ECF No. 20-14. Petitioner, Trial Counsel, and one of the attorneys who had prosecuted Petitioner's trial testified at the hearing. ECF No. 20-14 at 2.
The state court docket reflects that a final order of dismissal was entered in Petitioner's second PCR action. See Spartanburg County Seventh Judicial Circuit Public Index, https://publicindex.sccourts.org/Spartanburg/PublicIndex/PISearch.aspx (search case number 2016CP4204550) (last visited May 20, 2024). The order was filed on October 11, 2021, and it ruled on the merits of Petitioner's newly discovered evidence claims. Id. Specifically, in the order of dismissal, the Second PCR Judge noted that Petitioner went forward on the following allegations:
1. Newly discovered evidence:
a. Applicant alleged he learned of a 20 year plea offer within a year of filing his application, which was told to him by his mother, and he did not have knowledge of before it lapsed.
b. Fraud accusations against Investigator Lorin Williams
i. The collection of DNA evidence and the home search were rendered unconstitutional because Williams falsely claimed Applicant signed waiver forms permitting the searches when he did not.
c. Flaws in the indictment process.ECF No. 60 at 24-25; ECF No. 73-3 at 5-6.
Petitioner appealed the Second PCR Judge's order of dismissal via a Johnson Petition filed by Appellate Defender Taylor Gilliam (“Second PCR Appellate Counsel”). ECF No. 73-4. Petitioner raised a single issue:
Johnson v. State, 364 S.E.2d 201 (S.C. 1988). A Johnson petition is the state PCR appeal analogue to an Anders brief. See Anders v. California, 386 U.S. 738 (1967). As noted above, a brief filed pursuant to Anders effectively concedes that the appeal lacks a meritorious claim and provides a framework for counsel to withdraw. See id.; Johnson, 364 S.E.2d 201.
Whether the PCR court erred in denying relief, where Petitioner presented an affidavit from his mother regarding a twenty-year plea offer, where trial counsel never conveyed the offer to Petitioner, and where Petitioner received an aggregate sentence of fifty years?ECF No. 73-4 at 3.
On June 24, 2022, the Supreme Court of South Carolina transferred the appeal to the South Carolina Court of Appeals. ECF No. 73-5. On November 8, 2023, the Court of Appeals denied certiorari and granted Second PCR Appellate Counsel's request to withdraw. The Remittitur was issued on November 29, 2023, and filed December 4, 2023. See ECF No. 73-7 at 1.
While Petitioner's second PCR action was still pending, Petitioner filed a federal habeas action on May 7, 2021, in this Court. See ECF No. 1-1 at 1. Respondent filed a Return and Motion for Summary Judgment on September 9, 2021. ECF Nos. 20, 21. This matter was fully briefed as of October 7, 2021, when Respondent filed a Reply to the Motion for Summary Judgment. ECF No. 25. However, because there was some overlap between the substance of Petitioner's federal habeas corpus claims and the substance of the second PCR claims (which were still pending at the time), this Court found it appropriate to stay Petitioner's federal habeas corpus action until the conclusion of appellate review in Petitioner's second PCR action or until the time had expired for Petitioner to appeal the Second PCR Judge's order. ECF No. 26.
On February 29, 2024, after Respondent's counsel filed a Status Report notifying this Court the second PCR action had concluded in November of 2023, this Court issued a Text Order lifting the stay on this federal habeas action and directing Respondent to file an Amended Return by March 14, 2024. ECF No. 57. Respondent was to address any new issues arising out of the second PCR action and to file any additional documents supplementing the state court record as appropriate. ECF No. 57. On March 13, 2024, Respondent filed an Amended Return and Motion for Summary Judgment; however, Respondent failed to file additional documents supplementing the state court record. ECF Nos. 60, 61. This Court ordered Respondent to supplement the Amended Return on May 17, 2024. ECF No. 71. Respondent filed supplemental materials on May 22, 2024. ECF No. 73. The matter is now ready for review.
In his federal habeas petition, Petitioner raises the following grounds for relief:
Ground One: See attached Federal Habeas Grounds
Supporting facts: Brady violation. Applicant's 5th, 6th, and 14th amendment rights to the U.S. Constitution, Article I Section 3, 12, 13, 14 of the S.C. Constitution, SC Code of Law § 17-23-60 (right to counsel), § 16-9-10 (perjury) and corresponding laws were denied and violated by trial counsel failure to object to prosecution misconduct where the prosecution alleged to have rights waivered in order to collect buccal swab and evidence to prosecute and they did not.
Ground two: Trial court abuse of discretion
Supporting facts: Applicant's 5th, 6th, and 14th Amendment Rights to the U.S. Constitution, Article I., Section 3, 12, 14 of the S.C. Constitution, SC Code Ann.
§ 17-23-60 (right to counsel) and corresponding laws, were denied and/or violated by the trial court's abuse of discretion for ordering the state attorneys not to discuss or question a key witness about rights waivers which caused this issue to not be developed for the record and preserved for appellate review.
Ground three: Illegal search and seizure.
Supporting facts: Applicant's 4, 5, 6, and 14 Amendment rights to the U.S. Constitution, SC Code Ann. § 17-23-60 (right to counsel), Article I., Section 3, 10, 12, 13, 14 of the S.C. Constitution and corresponding law were denied or violated by the illegal search and seizures conducted by [Detective] Lovin Williams who has been fired for a history of the same misconduct without receiving any consent nor a valid search warrant.ECF No. 1 at 5-9 (errors in original).
It is not clear what attachment Petitioner is referring to. See ECF No.
II. STANDARDS OF REVIEW
A. Summary Judgment Standard
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Id. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only 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.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
B. Federal Habeas Review under 28 U.S.C. § 2254
Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Therefore, in considering Petitioner's claims, the Court's review is limited by the deferential standard of review set forth in 28 U.S.C. § 2254(d). See Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). 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.28 U.S.C. § 2254(d); see also Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (explaining 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 contrary to, or involved an unreasonable application of, 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”). A state court's decision is contrary to clearly established federal law if that court “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Evans, 220 F.3d at 312 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). A state court decision unreasonably applies clearly established federal law if the state court “identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. (quoting Williams, 529 U.S. at 413).
Because “review under § 2254(d)(1) focuses on what a state court knew and did,” this Court measures the reasonableness of the state court's decision based on the information in the record before the state court. Valentino v. Clarke, 972 F.3d 560, 575 (4th Cir. 2020) (quoting Cullen v. Pinholster, 563 U.S. 170, 182 (2011)). “Likewise, § 2254(d)(2) provides for a limited review of factual determinations in light of the evidence presented in the State court proceeding[;] [thus,] [t]his backward-looking language similarly requires an examination of the state-court decision at the time it was made.” Id. (citation and internal quotation marks omitted).
Accordingly, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 410. Further, factual findings “made by a State court shall be presumed to be correct,” and Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
III. DISCUSSION
Respondent argues the Petition should be dismissed for various procedural reasons. ECF No. 60 at 39-44. For the reasons that follow, the Court agrees with Respondent.
Respondent also generally argues that Petitioner failed to show any merit as to his claims at any level of the state court proceedings. See ECF No. 60 at 49-59.
A. Procedural Requirements for Habeas Petitions
A federal court considering a § 2254 petition “generally may consider a state prisoner's federal claim only if he has first presented that claim to the state court in accordance with state procedures.” Shinn v. Ramirez, 142 S.Ct. 1718, 1727 (2022) (emphasis added). That is, before seeking habeas relief in federal court, a petitioner must first exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). Thus, when presented with an application for habeas relief, the federal court's first inquiry is determining whether the claim raised in the petition was “adjudicated on the merits” by the state court. 28 U.S.C. § 2254(d). If a prisoner has properly raised his claims before the state court in accordance with state procedures, he has met the exhaustion requirement and a federal court may hear those claims.
In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). If the PCR court fails to address a claim as is required by S.C. Code Ann. § 17-2780, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will generally result in the application of a procedural bar by the South Carolina Supreme Court. See Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009) (discussing procedural bar and noting the “general rule” in South Carolina is that where a party fails to file a Rule 59(e) motion, the argument is forfeited). Furthermore, strict time deadlines govern direct appeal and the filing of a PCR application in the South Carolina courts. A PCR application must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45. In South Carolina, a claim is not procedurally barred from review in this Court for failure to pursue review in the South Carolina Supreme Court after an adverse decision in the Court of Appeals. See In re Exhaustion of State Remedies in Crim. & Post-Conviction Relief Cases, 321 S.C. 563, 564, 471 S.E.2d 454 (S.C. 1990) (“[W]hen the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies.”).
However, when a state prisoner has failed to properly raise his federal claims in accordance with state procedural rules, and the state court would dismiss the claim on that basis, the claim is “procedurally defaulted.” Shinn, 142 S.Ct. at 1727-28. Under the doctrine of procedural default-also known as procedural bar-federal courts generally decline to consider those claims not presented to the state court in accordance with the state's procedural rules. See id. at 1732; Mahdi v. Stirling, 20 F.4th 846, 892 (4th Cir. 2021). This is because allowing a state prisoner to simply bypass a state's procedural requirements on their way to federal court would render the exhaustion requirement meaningless. See Shinn, 142 S.Ct. at 1732. As the Supreme Court recently explained, exhaustion and procedural default promote our dual system of federal and state judicial comity: “Exhaustion affords States an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights, and procedural default protects against the significant harm to the States that results from the failure of federal courts to respect state procedural rules.” Id. (internal citations and quotation marks omitted). Thus, where the state court has not had the opportunity to apply its own procedural bar, the federal court will nevertheless bar the claim where application of the bar is clear. Teague v. Lane, 489 U.S. 288, 297-98 (1989).
In these instances where a state court would dismiss such claims for their procedural failures, those claims are “technically exhausted” in the habeas context, because state court remedies are “‘exhausted' when they are no longer available, regardless of the reason for their unavailability.” Woodford v. Ngo, 548 U.S. 81, 92-93 (2006); see also Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), overruled on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011); Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).
The South Carolina Supreme Court will refuse to consider claims raised in an appeal that could have been raised at an earlier time. See, e.g., Evans v. State, 611 S.E.2d 510, 515 (S.C. 2005) (noting an “issue or argument which is neither raised at PCR hearing nor ruled upon by the PCR court is procedurally barred from appellate review” (citation omitted)). Further, if a prisoner has failed to file a direct appeal or a PCR application 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.
Notwithstanding the foregoing, “a federal court is not required to automatically deny unexhausted or procedurally defaulted claims.” Shinn, 142 S.Ct. at 1732. Federal courts may consider procedurally defaulted claims in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or by “prov[ing] that failure to consider the claims will result in a fundamental miscarriage of justice.” Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008); see also Farabee v. Clarke, 967 F.3d 380, 395 (4th Cir. 2020).
“To establish cause, the petitioner must show that some objective factor external to the defense impeded counsel's efforts' to raise the claim in state court at the appropriate time, or that the factual or legal basis for the claim was not reasonably available [] at the time of the state proceeding.” Mahdi, 20 F.4th at 893 (internal citations and quotation marks omitted). To establish prejudice, the petitioner “must show not merely a substantial federal claim, such that the errors at [] trial created a possibility of prejudice, but rather that the constitutional violation worked to his actual and substantial disadvantage.” Shinn, 142 S.Ct. at 1733 (emphasis in original) (citation and internal quotation marks omitted).
With the above in mind, the undersigned turns to the Grounds presented in the Petition.
1. Ground One
Petitioner's Ground One alleges a Brady violation and appears to allege his trial counsel was ineffective by failing to object to this prosecutorial misconduct/'Brady violation. See ECF No. 1 at 5; ECF No. 69 at 8-9. Respondent argues that Ground One is procedurally barred, as Petitioner did not raise this claim during his PCR proceedings. The Court agrees.
Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding when the prosecution suppresses favorable evidence material to a defendant's guilt or punishment, it violates the constitutional guarantee of due process).
Petitioner's Response appears to add Brady claims to his Ground Two claim. See ECF No. 69 at 6-9. For purposes of clarity, all Brady claims are procedurally barred.
Upon review, Ground One was not adjudicated on the merits in state court. The Court observes that this ground was neither raised in Petitioner's first PCR application, see ECF No. 202 at 60, nor during the first PCR hearing, see ECF No. 20-2 at 14-57. Moreover, the issue was not ruled on by the first PCR Judge in the order of dismissal, see ECF No. 20-2 at 59-68, nor was it raised in the petition for a writ of certiorari, see ECF No. 20-3 at 3. Similarly, this ground was not raised in Petitioner's second PCR action by way of his amended PCR application, see ECF No. 20-8, or at the second PCR hearing, see ECF No. 60 at 24-25. The Second PCR Judge did not rule on this issue in the order of dismissal, and the issue was not raised in Petitioner's subsequent Johnson Petition. ECF Nos. 73-3, 73-4.
Consequently, this Ground is procedurally barred from federal habeas review. See Barton v. Lewis, No. 9:18-CV-748-RBH, 2019 WL 1416887, at *8 (D.S.C. Mar. 29, 2019) (holding that claims not raised in Petitioner's initial PCR proceedings were procedurally barred), appeal dismissed, 819 Fed.Appx. 183 (4th Cir. 2020); Plyler v. State, 424 S.E.2d 477, 478 (S.C. 1992) (holding that an issue that was neither raised at the PCR hearing nor ruled upon by the PCR court is procedurally barred), overruled on other grounds by State v. Burdette, 832 S.E.2d 575 (S.C. 2019); see also Evans v. State, 611 S.E.2d 510, 515 (S.C. 2005) (noting an “issue or argument which is neither raised at PCR hearing nor ruled upon by the PCR court is procedurally barred from appellate review” (citation omitted)).
Moreover, Petitioner has not shown, much less argued, sufficient cause and actual prejudice which would otherwise allow this Court to consider this issue. See Coleman, 501 U.S. 722, 750 (1991) (“[F]ederal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.”); see also Shinn, 142 S.Ct. at 1730 (“Respondents do not dispute, and therefore concede, that their habeas petitions fail on the state-court record alone.”). Therefore, the Court recommends that Respondent's Motion be granted as to Ground One in the Petition. See 28 U.S.C. § 2254(b); see also Cudd v. Ozmint, C. A. No. 0:08-2421-RBH, 2009 WL 3157305, at *3 (D.S.C. Sept. 25, 2009) (holding that an issue not considered by the PCR court was procedurally barred); see also White v. Burtt, C. A. No. 606-0906-TLW-WMC, 2007 WL 709001, at *8 (D.S.C. Mar. 5, 2007) (holding that an issue must be raised to and ruled on by the PCR court in order to be preserved for review (citing Pruitt v. State, 423 S.E.2d 127, 127-28 (S.C. 1992))).
2. Ground Two
Petitioner's Ground Two raises an alleged error by the Trial Judge. See ECF No. 1 at 7; ECF No. 69 at 6. Respondent argues that Ground Two is procedurally barred, as Petitioner did not raise this claim during his PCR proceedings. The Court agrees.
Upon review, Ground Two was not adjudicated on the merits in state court. The Court observes that this ground was neither raised in Petitioner's first PCR application, see ECF No. 202 at 60, nor during the first PCR hearing, see ECF No. 20-2 at 14-57. Moreover, the issue was not ruled on by the first PCR Judge in the order of dismissal, see ECF No. 20-2 at 59-68, nor was it raised in the petition for a writ of certiorari, see ECF No. 20-3 at 3. Similarly, this ground was not raised in Petitioner's second PCR action by way of his amended PCR application, see ECF No. 20-8, or at the second PCR hearing, see ECF No. 60 at 24-25. The Second PCR Judge did not rule on this issue in the order of dismissal, and the issue was not raised in Petitioner's subsequent Johnson Petition. ECF Nos. 73-3, 73-4.
Consequently, this Ground is procedurally barred from federal habeas review. See Barton, No. 9:18-CV-748-RBH, 2019 WL 1416887, at *8 (holding that claims not raised in Petitioner's initial PCR proceedings were procedurally barred), dismissed, 819 Fed.Appx. 183; Plyler, 424 S.E.2d at 478 (holding that an issue that was neither raised at the PCR hearing nor ruled upon by the PCR court is procedurally barred), overruled on other grounds by Burdette, 832 S.E.2d 575; see also Evans, 611 S.E.2d at 515 (noting an “issue or argument which is neither raised at PCR hearing nor ruled upon by the PCR court is procedurally barred from appellate review” (citation omitted)).
Moreover, Petitioner has not shown, much less argued, sufficient cause and actual prejudice which would otherwise allow this Court to consider this issue. See Coleman, 501 U.S. 722, 750 (1991) (“[F]ederal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.”); see also Shinn, 142 S.Ct. at 1730 (“Respondents do not dispute, and therefore concede, that their habeas petitions fail on the state-court record alone.”). Therefore, the Court recommends that Respondent's Motion be granted as to Ground Two in the Petition. See 28 U.S.C. § 2254(b); see also Cudd, C. A. No. 0:08-2421-RBH, 2009 WL 3157305, at *3 (holding that an issue not considered by the PCR court was procedurally barred); see also White, C. A. No. 606-0906-TLW-WMC, 2007 WL 709001, at *8 (holding that an issue must be raised to and ruled on by the PCR court in order to be preserved for review (citing Pruitt, 423 S.E.2d at 127-28)).
Even setting aside the procedural bar applicable to this issue, it appears that Petitioner is challenging rulings by the Trial Judge as to the admissibility of evidence at trial. Specifically, the challenged ruling centered around two documents: a Miranda waiver and a consent to search waiver concerning a buccal swab taken from Petitioner. ECF No. 60 at 4; ECF No. 20-1 at 14566, 209-10; ECF No. 20-15. Trial Counsel objected to the admissibility of these documents because he claimed he had not received copies during discovery. ECF No. 60 at 4 n.1; ECF No. 20-1 at 145-66. The State believed Trial Counsel had received them, as they were included in the prosecutor's file which had been shared with the defense. The Trial Judge directed the State not to mention the two documents before the jury because of the potential discovery violation until it could be determined whether Trial Counsel had indeed received the documents. As Respondent argues, this issue was apparently resolved off the record or in chambers, as it was not mentioned again in the trial transcript. See ECF No. 20-1 at 145-300. Consequently, the two documents were not introduced into evidence based on Trial Counsel's objection. It appears that Petitioner is arguing that the Trial Judge abused his discretion in ordering the State not to discuss the rights waivers. See ECF No. 1 at 7; ECF No. 69 at 6.
To the extent that Petitioner appears to be challenging the Trial Judge's ruling regarding the admissibility of evidence under South Carolina law, the undersigned finds no basis to grant habeas relief. See Spencer v. Murray, 5 F.3d 758, 763 (4th Cir. 1993) (“[A] claim about the admissibility of evidence under state law rarely is a claim upon which federal habeas corpus relief can be granted.”); Barbe v. McBride, 521 F.3d 443, 452 (4th Cir. 2008) (noting evidentiary rulings will not be considered in federal habeas “‘unless [the] erroneous evidentiary rulings were so extreme as to result in a denial of a constitutionally fair proceeding'” (quoting Burket v. Angelone, 208 F.3d 172, 186 (4th Cir. 2000))). Petitioner has failed to show, much less argue, that the alleged error was so extreme that his due process rights were implicated. See Johnson v. Warden, Broad River Corr. Inst., No. CV 0:22-3210-CMC-PJG, 2023 WL 4349151, at *4 (D.S.C. May 4, 2023) (recommending summary judgment where “Ground One raises an issue of state evidentiary law and Johnson does not argue that the error was so extreme that it implicates due process concerns”), report and recommendation adopted, No. CV 0:22-3210-CMC, 2023 WL 4196935 (D.S.C. June 27, 2023), appeal dismissed, No. 23-6753, 2024 WL 1405886 (4th Cir. Apr. 2, 2024).
3. Ground Three
Petitioner's Ground Three is based on allegations that Petitioner's Fourth Amendment rights were violated because of an alleged illegal search and seizure. See ECF No. 1 at 8-9. Specifically, Petitioner maintains that the collection of DNA evidence via a buccal swab and the search of his apartment was a violation of his Fourth Amendment rights and further appears to argue (in his Response) that his Trial Counsel was ineffective for failing to suppress this evidence. See ECF No. 1 at 8-9; ECF No. 69 at 3-5, 9-12.
Respondent argues this Ground is not cognizable pursuant to Stone v. Powell. Respondent further argues that Petitioner is now attempting to raise two ineffective assistance of counsel claims in his Response related to the alleged failure to object to the search obtaining the buccal swab and the search of his apartment. ECF No. 70 at 3. Respondent points out that Petitioner did not raise ineffective assistance of counsel claims related to this issue in his first PCR action, and further argues that, although Petitioner raised a Fourth Amendment violation claim in his second PCR, it was raised specifically on the basis of after-discovered evidence related to one of the detectives (Detective Lorin Williams) allegedly improperly searching him. ECF No. 70 at 3-4. Respondent argues the ineffective assistance of counsel claims Petitioner seeks to raise via his Response were never raised in state court or were abandoned. ECF No. 70 at 4. For the reasons that follow, the Court agrees with Respondent.
The United States Supreme Court has said that a meritorious ineffective assistance of counsel claim must show two things: first, that counsel's performance was deficient and, second, that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-96 (1984).
As to the first prong, a court's evaluation of counsel's performance under this standard must be “highly deferential,” to not “second-guess” the performance. Id. at 689. “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (internal quotation marks and citation omitted); see also Bowie v. Branker, 512 F.3d 112, 119 n.8 (4th Cir. 2008); Fields v. Att'y Gen. of Md., 956 F.2d 1290, 1297-99 (4th Cir. 1992).
To establish the second prong of Strickland, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable probability” has been defined as “a probability sufficient to undermine confidence in the outcome.” Id.
While Strickland itself is a deferential standard, when both § 2254(d) and Strickland apply, review is “doubly” deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011). “Thus, [t]he question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Valentino, 972 F.3d at 580 (citation and internal quotation marks omitted). Indeed, when § 2254(d) applies, the question becomes “whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id. (citation and internal quotation marks omitted).
As an initial matter, to the extent Petitioner's Ground Three may be construed as freestanding allegations of violations of the Fourth Amendment, such freestanding claims cannot constitute grounds for habeas relief. See Stone v. Powell, 428 U.S. 465, 482 (1976). Stone precludes a federal court from granting habeas relief on an alleged Fourth Amendment violation if “the State has provided an opportunity for full and fair litigation” of the claim. Id. Shortly after Stone was decided, the Fourth Circuit stated the appropriate framework for district courts to employ when considering a Fourth Amendment claim in a § 2254 petition:
“[A] district court, . . . should, under the rule in Stone v. Powell, supra, first inquire as to whether or not the petitioner was afforded an Opportunity to raise his Fourth Amendment claims under the then existing state practice. ...
Second, . . . when the district court has made the “opportunity” inquiry, it need not inquire further into the merits of petitioner's case, when applying Stone v. Powell, supra, unless the prisoner alleges something to indicate that his opportunity for a full and fair litigation of his Fourth Amendment claim or claims was in some way impaired.”Doleman v. Muncy, 579 F.2d 1258, 1265 (4th Cir. 1978); see also Mueller v. Angelone, 181 F.3d 557, 570 n.8 (4th Cir. 1999). While “Stone v. Powell, supra, marked, for most practical purposes, the end of federal court reconsideration of Fourth Amendment claims by way of habeas petitions where the petitioner had an opportunity to litigate those claims in state court,” Grimsley v. Dodson, 696 F.2d 303, 304 (4th Cir. 1982), claims of ineffective assistance of counsel in litigating those claims in state court may be raised and are cognizable in the § 2254 petition. Kimmelman v. Morrison, 477 U.S. 365, 382-383 (1986).
Here, Petitioner had a full and fair opportunity to raise his Fourth Amendment claims. Indeed, Petitioner raised his claim-based on after-discovered evidence-to the Second PCR Judge. The Second PCR Judge ruled on this allegation on the merits and found no Fourth Amendment violation. ECF No. 60 at 35. Thus, to the extent Petitioner is seeking habeas relief because of an alleged Fourth Amendment violation, such a claim is precluded by Stone.
However, Petitioner also alleges, in his Response, that his Trial Counsel was ineffective for failing to raise these Fourth Amendment concerns, which is cognizable in a § 2254 petition. See Kimmelman, 477 U.S. at 382-383. The Court generally agrees with Respondent that Petitioner did not raise this ineffective assistance of counsel claim by way of his federal habeas petition, and that Petitioner did not seek to amend his federal habeas petition to include such claims. See ECF No. 1 at 8-9; ECF No. 70 at 3-4. In any event, even if Petitioner had raised this claim, it fails for two reasons.
First, as noted above, Petitioner did not raise an ineffective assistance of counsel claim pertaining to this alleged Fourth Amendment issue in either his first or second PCR action. Rather, he raised a freestanding Fourth Amendment claim based on after-discovered evidence to the Second PCR Judge. Thus, as a practical matter, this claim is procedurally barred from federal habeas review. See Barton, No. 9:18-CV-748-RBH, 2019 WL 1416887, at *8 (holding that claims not raised in Petitioner's initial PCR proceedings were procedurally barred), dismissed, 819 Fed.Appx. 183.
Second, even if this Court were to liberally construe what was raised in the second PCR action as an ineffective assistance of counsel claim, the PCR Judge's rejection of the above grounds was neither contrary to, nor was it an unreasonable application of, clearly established United States Supreme Court precedent under § 2254(d). Indeed, Petitioner testified as to this issue at his second PCR hearing. The Second PCR Judge accurately summarized Petitioner's testimony on this issue as follows:
Applicant stated that the investigator on his case, Lorin Williams, obtained a buccal swab from him without consent and searched his house without first obtaining a search warrant, rendering them both illegal. (PCR Tr. 13-14). Applicant testified he went to his house without consent, a search warrant, or an affidavit allowing him to obtain the evidence collected. (PCR Tr. 13-14). Applicant testified there was no probable cause hearing held and no probable cause reason to go to his house. (PCR Tr. 14). Applicant stated the officers opened his mouth and obtained a buccal swab without consent after he was arrested. (PCR Tr. 14). Applicant stated this evidence was suppressible, but he had no evidence of misconduct until Williams was fired for misconduct. (PCR Tr. 14). Applicant stated that after Williams was fired he decided to raise a Fourth Amendment violation claim. (PCR Tr. 14). Applicant testified that incident reports existed concerning the search. (PCR Tr. 14).
Applicant stated that the incident report reflected that a waiver form was signed by Applicant concerning the searches, but that no form exists and that he never signed a waiver form. (PCR Tr. 15-18). Applicant claimed that the prior hearings' transcripts show that no waiver forms were ever signed. (PCR Tr. 16-18).
...
[On cross examination,] Applicant stated that the officer never obtained consent from him concerning the search and the DNA swab and that this was pointed out by Counsel at trial. (PCR Tr. 36-37). Applicant claims the issues concerning the illegal searches could have been raised in his first action, but not the allegations against Mr. Williams', because he did not know Mr. Williams' allegedly engaged in misconduct until after the first PCR action took place. (PCR Tr. 37). Applicant claimed the consent order issue was never handled at the trial, but that they just “moved on with the trial.” (PCR Tr. 38-39). On re-direct, Applicant stated that Judge Cole recognized that no waiver forms were signed at trial and asked prosecution to show he waived his rights or gave consent to the searches. (PCR Tr. 40-41).ECF No. 73-3 at 7-9.
The State's prosecutor testified as to this issue at the second PCR hearing. The Second PCR Judge accurately summarized the prosecutor's testimony on this issue as follows:
Prosecutor testified that Applicant lived with his girlfriend at the time, was in the vehicle when pulled over, and she gave consent to search the house. (PCR Tr. 47). ...
Prosecutor stated she did not remember Investigator Williams being involved in executing the search warrant. (PCR Tr. 49). She stated Investigator Williams was the lead investigator on the case, but that, at trial, she direct examined Investigator Shaffer, who took the DNA swab from Applicant. (PCR Tr. 49). She stated that, concerning Applicant's allegations, if he had an issue with an investigator, it would have been with Shaffer, not Williams. (PCR Tr. 50).
On cross-examination, Prosecutor stated that she did not remember whether Investigator Williams directed Investigator Shaffer to take the buccal swab, but he may have been called out the scene by someone to take the evidence and submit it to SLED. (PCR Tr. 51).ECF No. 73-3 at 10-11.
Trial Counsel testified as to this issue at the second PCR hearing. The Second PCR Judge accurately summarized Trial Counsel's testimony on this issue as follows:
Counsel stated he told Applicant leading up to trial that the discovery showed he was stopped because his vehicle matched the description put out on two incidents while in the car with his girlfriend, who he lived with and consented to the search. (PCR Tr. 54). Counsel stated he did not identify issues with her giving consent to the search and no reason for filing a motion to suppress existed. (PCR Tr. 54-55).
Counsel stated the DNA swab was given voluntarily and Applicant concurred with this while they read and discussed the discovery and evidence in the case. (PCR Tr. 55). Counsel stated he did not identify any issues with Investigator Williams nor did he think Williams engaged in foul play, pertaining to this case. (PCR Tr. 5556).ECF No. 73-3 at 11.
After considering the above testimony, the Second PCR Judge ruled on this issue as follows:
Applicant claims newly discovered evidence that Lorin Williams was fired for alleged misconduct and, based upon this firing, Applicant claims Williams improperly searched his apartment and procured a DNA buccal swab. As a preliminary matter, this Court finds no evidence of misconduct on Williams' part. Investigator Shafer, not Williams, procured the DNA swab. Accordingly, if misconduct occurred in obtaining the swab, it likely would be on the part of Investigator Shaffer, not Williams. However, Counsel credibly testified that Applicant voluntarily allowed the buccal swab to be taken. (PCR Tr. 55). Thus, this Court finds it unlikely that any misconduct occurred at all, whether by Investigator Williams or Shaffer. Regardless, no evidence beyond mere speculation was presented supporting the allegation that the swab was taken improperly or how that would have impacted the results at trial.
Concerning the search, both Prosecutor and Counsel credibly testified that Applicant's girlfriend, whom he was living with at the time, consented to the search. Thus, the search was not improper, regardless of whether Applicant consented to it. (PCR Tr. 47, 54-55). Accordingly, this Court finds no misconduct on this ground either. Accordingly, the newly discovered evidence Applicant alleges is seemingly fabricated and, as a result, relief is denied on this ground as well.ECF No. 73-3 at 16-17.
Upon review of the Second PCR Judge's consideration of this issue, the undersigned finds that the Second PCR Judge did not apply federal law unreasonably or base his adjudication on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). As an initial matter, Petitioner seeks via his Response to assert an ineffective assistance of counsel claim against his Trial Counsel for failing to suppress evidence that was allegedly obtained in violation of the Fourth Amendment. See ECF No. 69 at 3-5. However, paradoxically, Petitioner asserted in his second PCR action that he discovered this Fourth Amendment claim based on after-discovered evidence relating to Detective Williams being fired for alleged misconduct and-based upon this firing-Petitioner claimed Detective Williams improperly searched his apartment and procured a DNA buccal swab. See ECF No. 60 at 35. Quite simply, Petitioner fails to show how his Trial Counsel could have been possibly aware of any issue at the time of trial, especially since his Fourth Amendment claim was based on alleged evidence he discovered after trial. Thus, Petitioner has failed to show how Trial Counsel was deficient, and, as a consequence, has not shown (much less argued) how the Second PCR Judge applied Strickland unreasonably or based his adjudication on an unreasonable determination of facts. See 28 U.S.C. § 2254(d); Valentino, 972 F.3d at 580 (noting the question is not whether a federal court considers the state court's determination under the Strickland standard to be incorrect, but whether that determination was unreasonable).
Moreover, the Second PCR Judge found that the prosecutor's and Trial Counsel's testimony was more credible than Petitioner's. Specifically, the Second PCR Judge found that Trial Counsel credibly testified that Petitioner voluntarily allowed the buccal swab to be taken, and further found that both the prosecutor and Trial Counsel credibly testified that Petitioner's girlfriend-whom Petitioner was living with at the time-gave valid consent to search the apartment. Such a factual finding on credibility is presumed to be correct, and Petitioner has the “burden of rebutting the presumption ... by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Petitioner has failed to do so. Thus, this Court has no license to presume the Second PCR Judge's factual findings as to either search was incorrect. See Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (noting “federal habeas courts [have] no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them” (citation and quotation marks omitted)); McWee v. Weldon, 283 F.3d 179, 186 (4th Cir. 2002) (affording deference to a state court's credibility determination on testimony establishing underlying facts).
Based on the above, the undersigned finds that the PCR Judge did not unreasonably apply Strickland or base his adjudication on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Consequently, the undersigned recommends granting Respondent's Motion as to Ground Three. See Valentino, 972 F.3d at 580 (noting the question is not whether a federal court considers the state court's determination under the Strickland standard to be incorrect, but whether that determination was unreasonable).
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's Motion for Summary Judgment (ECF No. 61) be GRANTED and that the Petition be DISMISSED with prejudice.
The parties are directed to the next page for their rights to file objections to this 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 Post Office Box 835 Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).