Opinion
C/A 8:21-cv-00995-HMH-JDA
05-09-2022
Ricky Bowman, Petitioner, v. Tonya James Warden of Kershaw Correctional Institution Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court on Respondent's motion for summary judgment. [Doc. 35.] Petitioner is a state prisoner who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.
Proceeding pro se, Petitioner filed this Petition for writ of habeas corpus on April 1, 2021. [Doc. 1.] On January 20, 2002, Respondent filed a return and memorandum to the Petition and a motion for summary judgment. [Docs. 34; 35.] The next day, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 36.] On March 25, 2022, the Clerk docketed a response from Petitioner opposing Respondent's summary judgment motion. [Doc. 42.] Respondent filed a reply on April 1, 2022. [Doc. 43.] The motion is now ripe for review.
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, this action was filed on April 1, 2021. [Doc. 1-3 at 1 (envelope stamped as received by prison mailroom on April 1, 2021).]
BACKGROUND
Underlying Facts, Indictment, Trial, and Sentencing
The summary judgment record, viewed in the light most favorable to Petitioner, reveals the following.
Petitioner is confined in the South Carolina Department of Corrections (“SCDC”) pursuant to orders of commitment of the Richland County Clerk of Court. [Doc. 1 at 1.] On the evening of November 25, 2008, Petitioner and three other men, including codefendant Sean Toran (“Toran”), decided to rob a drug dealer called “Black Shawn” because Black Shawn had recently robbed Toran at gunpoint and because “some [other] things that [Black Shawn and Petitioner] had set up [had not] go[ne] right.” [App. 355-57, 392.2] The four men were wearing hoodies and armed with guns. [App. 253, 284-85, 358-61]. All but Toran were also wearing bandanas. [App. 253, 284, 358-59.] They proceeded to what they mistakenly believed to be Black Shawn's apartment. [App. 359-60.] When they burst through the door, they encountered Delores Dennis (“Delores”); Delores's cousin, Regina Dennis (“Regina”); Delores's friend, Shamael Coit (“Shamael”); Shamael's three-year-old daughter; and Shamael's brother, Korey Coit (“Korey”). [App. 250-53, 279, 283, 287, 314-15, 399.] The robbers questioned these people about the whereabouts of Black Shawn and “the guns and the drugs, ” but the occupants denied knowing any information. [App. 253-54, 257, 260, 285-87, 319-21.] Some of the robbers then took the occupants' personal property, including cell phones, a wallet, and purses. [App. 262-63, 266, 273, 365, 382, 400, 404.]
The Appendix can be found at Docket Entry Numbers 34-1, 34-2, and 34-3. For consistency, the undersigned will cite to the numbers listed at the bottom of the pages of these docket entry numbers.
Petitioner questioned both Delores and Shamael at gunpoint. [App. 288-89, 301, 310, 322.] As he pointed his gun at Delores in her bedroom, he told her “he could take [her] breath away.” [App. 322.] He also struck her twice in the head with his gun, fracturing her pinky when she tried to use her hand to block the attack. [App. 259, 322, 362.] As Petitioner held Shamael at gunpoint in the living room, Shamael's three-year-old daughter was sitting in her lap. [App. 288, 301, 310.] As Petitioner demanded that Shamael reveal Black Shawn's whereabouts, he asked her if she wanted her child to see her bleed. [App. 257-58, 288-90, 301, 310.] Toran told Petitioner to leave the child alone and apologized to Shamael for “‘hit[ting] the wrong spot.'” [App. 291-92, 302.] Toran then collected his accomplices and they left. [App. 292-93, 302.] However, before they did so, they warned the occupants that if they contacted the police, the robbers would return and kill them. [App. 264, 295.]
Shortly after the robbers left, the apartment occupants heard several gunshots from outside and, in response, they “hit the floor.” [App. 263, 293-94, 325.] After waiting for a short time to make sure the robbers were gone, Shamael took Delores to the hospital, where Delores received three staples in the top of her head and had a splint placed on her broken finger. [App. 263, 274-75, 294, 325-27.] Following her release from the hospital the next day, Delores returned to her apartment and called the police to report what had happened. [App. 264, 329.]
Investigator Pegram (“Pegram”) of the Columbia Police Department, who was assigned to the case about a week later, realized immediately that the robbery at Delores's apartment (“the robbery”) was connected with Black Shawn's previous robbery of Toran. [App. 396, 398, 400-01.] About nine days after the robbery at Delores's apartment, Pegram assisted in executing a search warrant in a different case for the apartment of Torrell Johnson (“Johnson”). [App. 402-03.] During the search, police found several IDs, including the one that had been taken from Korey during the robbery. [App. 404.] Pegram then questioned Johnson about why he had the ID, and Johnson began providing information about the robbery, including identifying Petitioner, Toran, and two other men as the perpetrators and telling Pegram that a female victim had been struck in the head with a gun at Delores's apartment. [App. 404-05.] According to Pegram, Johnson knew facts about the incident that had not been released to the public. [App. 405-06.]
After Johnson named Petitioner and Toran, Pegram assembled photo lineups for each suspect. [App. 407.] The victims came to the police station the next day, December 5, 2008, to provide written statements and view the photo lineups. [App. 266-67, 296-97, 331, 341, 408.] Both Delores and Shamael positively identified Petitioner after using pieces of paper to cover up all but the eye area of the people in the photographs. [App. 298, 408-09.] They also both identified Toran from the other photo lineup. [App. 408-09.] Regina and Korey also identified Toran from a photo lineup but were not able to identify Petitioner. [269, 408.]
Pegram testified that, with the photo line-up that included Petitioner, Delores and Shamael “actually took a piece of paper or their hand and covered up the face on all six pictures, and they made an identification based on his eyes and eyebrows.” [App. 409; see also App. 333.]
Based on these identifications and the victims' written statements, Pegram obtained arrest warrants for Petitioner and Toran. [App. 410.] Toran was already in jail at the time, and Petitioner was arrested about a year later after United States Marshals located him in Savannah, Georgia. [App. 411.]
In 2010, Petitioner was indicted for assault and battery of a high and aggravated nature (“ABHAN”), possession of a weapon during the commission of a violent crime, armed robbery, kidnapping, and first-degree burglary. [App. 551-60.] Toran was also charged with these crimes [App. 351-52] and eventually decided to cooperate and testify at trial for the government [App. 350-95]. Petitioner, represented by Marck E. Schnee, proceeded to trial on November 7 through 9, 2011 before the Honorable G. Thomas Cooper, Jr., and a jury found Petitioner guilty as indicted. [App. 3, 74, 535.] Petitioner was sentenced to imprisonment for concurrent terms of 20 years each for first-degree burglary, armed robbery, and kidnapping; ten years for ABHAN; and five years for possession of a weapon during the commission of a violent crime. [App. 547, 561-65.]
Direct Appeal
Petitioner, represented by his counsel, Benjamin J. Tripp, of the South Carolina Commission on Indigent Defense - Appellate Defense Division, appealed to the South Carolina Court of Appeals. [App. 567.] Counsel raised the following issues:
I. Whether the trial court reversibly erred by closing the courtroom for the testimony of two State witnesses based solely on the fear of the witnesses to testify?
II. Whether the trial court reversibly erred by admitting two out-of-court photographic lineup identifications and subsequent in-court identifications by two State witnesses of [Petitioner] where the only identifying characteristics of [Petitioner] before being shown the lineup was that he wore
dark clothes and was dark skinned, where the witnesses covered the faces of the pictures in the lineup to show only the eyes, where [Petitioner] was identified only by his eyes, yet where neither could identify any distinguishing characteristics of [Petitioner's] eyes despite a large brown scar on [Petitioner's] eye?[App. 570.]
The Court of Appeals dismissed Petitioner's appeal on April 2, 2014, by unpublished opinion. [App. 622-24.] The Court denied Petitioner's request for rehearing on June 2, 2014. [App. 633.] Petitioner then timely submitted a petition for writ of certiorari [App. 634-47], which the Supreme Court of South Carolina denied on January 15, 2015 [App. 648]. The court issued its remittitur on February 17, 2015. [Doc. 34-4.]
Post-Conviction Relief (“PCR”) Proceedings
On March 17, 2015, Petitioner, proceeding pro se, filed a PCR application alleging the following grounds for relief:
5th, 6th, 14th Amendment rights w[ere] violated, Ineffective trial counsel[], out of court photo line-up, Improper Warrants, legal arrest, forced to stay in shackles during jury selection. With[h]eld evidence etc. Amendment rights violation clearling courtroom under false evidence, counsel did not raise objection under my 5, 6, 14 Amendment rights. Lineup, I was only one in six pack lineup with RED shirt others all white, Never was probable cause for warrants.[App. 651.] The State made its return on July 9, 2015. [App. 668-73.]
On September 21, 2015, Petitioner filed an Amended PCR application. Therein, PCR counsel, Anna Good, raised the following additional grounds for relief:
a) Ineffective assistance of trial counsel - trial counsel failed to properly object to hearsay and bolstering of [Johnson], a witness who never testified;
b) Ineffective assistance of trial counsel - trial counsel failed to request a hearing quashing the indictments as a result of [Johnson] failing to testify;
c) Ineffective assistance of counsel - trial counsel failed to move for a mistrial due to [Johnson] not testifying and the State mentioning his testimony, as well as witnesses being scared to come to court during opening statements;
d) Ineffective assistance of trial counsel - trial counsel failed to impeach witness [Toran] with letter written to [Petitioner];
e) Ineffective assistance of trial counsel - trial counsel failed to consult with [Petitioner] regarding statement of Witness [Toran], as [Petitioner] would have taken the plea deal if he had known of such testimony;
f) Ineffective assistance of counsel - trial counsel failed to argue for the prosecution to enforce a previous plea agreement; and
g) Ineffective assistance of counsel - trial counsel failed to move for a new trial based on the fact only 11 jurors were polled after the verdict.[App. 674-75.]
A hearing was held on January 30, 2017, with Good representing Petitioner. [App. 1-72.] The PCR court received testimony from Petitioner and his trial counsel, Schnee. [App. 4-64.] The PCR court then denied and dismissed Petitioner's application with prejudice on January 31, 2018. [App. 678-86.]
Petitioner appealed. [App. 687-89.] On Petitioner's behalf, C. Rauch Wise filed a petition for writ of certiorari in the Supreme Court of South Carolina, dated October 5, 2018. [Doc. 34-5.] The petition asserted the following issues:
I. Did the [PCR] Judge err in failing to grant the Application of [Petitioner] when the facts below established that trial counsel was ineffective and [Petitioner] was prejudiced when trial counsel failed to object [to] the hearsay testimony of [Pegram] when [Pegram] testified before the jury that [Johnson] told him [Petitioner] and others had committed the crime?
II. Did the [PCR] judge err in ruling that trial counsel was not ineffective in that [Petitioner] was not prejudiced by the failure of trial counsel to properly preserve for appellate review the decision of the trial judge to close the courtroom during parts of the testimony of certain witnesses?[Id. at i.] The State filed a return to the petition for writ of certiorari on March 8, 2019 [Doc. 34-6], and Petitioner filed a reply on April 2, 2019 [Doc. 34-7]. The appeal was transferred to the South Carolina Court of Appeals, which filed an order denying certiorari on November 3, 2020. [Docs. 34-8; 34-9.] The remittitur issued on November 25, 2020. [Doc. 34-10.]
Petition for Writ of Habeas Corpus
Petitioner filed this Petition for writ of habeas corpus on April 1, 2021. [Doc. 1.] Petitioner raises the following grounds/facts for relief, quoted substantially verbatim, in his Petition pursuant to 28 U.S.C. § 2254:
GROUND ONE: Failure of trial attorney to preserve the issue of the trial court closing the courtroom in violation of the Sixth Amendment to the Constitution of the United States of America
Supporting facts: During the trial, the State requested that the Courtroom be closed during the Neil v. Biggers hearing. Trial counsel objected to the closing of the courtroom but failed to argue the closing violated either the state or federal constitution. The South Carolina Court of Appeals denied the appeal on the ground th[at] trial counsel failed to state a constitutional ground. The [PCR] judge denied the relief finding [Petitioner] had not proven prejudice as to the closing of the courtroom. The South Carolina Court of Appeals, without discussion, denied the petition for writ of certiorari.
GROUND TWO: Failure of trial attorney to object to testimony that violated the Sixth Amendment.
Supporting facts: During the trial, [Pegram] testified that [Johnson] told him [that Petitioner] and others committed the crime. No confrontation objection under the Sixth Amendment to the Constitution of the United States of America was raised. Trial counsel knew [Johnson] would not testify. At a
pre-trial hearing, [Johnson] stated he did not know [Petitioner]. After [Johnson's] pre-trial testimony, trial counsel failed to object when [Pegram] told the jury what [Johnson] had allegedly told him about the involvement of [Petitioner] in the burglary and kidnapping.[Doc. 1 at 5, 7.]
APPLICABLE LAW
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe her pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for her. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “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.” Id. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
Habeas Corpus
Generally
Because Petitioner filed the Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of her claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). “[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 v. Taylor, 529 U.S. 362, 411 (2000). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision, ” and “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 101-02 (2011). Moreover, state court factual determinations are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Procedural Bar
Federal law establishes this Court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person “is in custody in violation of the Constitution or laws or treaties of the United States” and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural bypass operate to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this Court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) 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 unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (I) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254. The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. Id. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must fairly present his claim to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
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 for relief be stated in the direct appeal or PCR application. S.C. App. Ct. R. 203; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). Further, strict time deadlines govern direct appeal and the filing of a PCR application in the South Carolina courts. For direct appeal, a notice of appeal must be filed and served on all respondents within ten days after the sentence is imposed or after receiving written notice of entry of the order or judgment. S.C. App. Ct. R. 203(b)(2), (d)(1)(B). 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.
If any avenue of state relief is still available, the petitioner must proceed through the state courts before requesting a writ of habeas corpus in the federal courts. Richardson v. Turner, 716 F.2d 1059, 1062 (4th Cir. 1983); Patterson v. Leeke, 556 F.2d 1168 (4th Cir. 1977). Therefore, in a federal petition for habeas relief, a petitioner may present only those issues that were presented to the Supreme Court of South Carolina through direct appeal or through an appeal from the denial of a PCR application, regardless of whether the Supreme Court actually reached the merits of the claim.
Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner seeks habeas corpus relief based on an issue he failed to raise at the appropriate time in state court, removing any further means of bringing that issue before the state courts. In such a situation, the petitioner has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. See Smith v. Murray, 477 U.S. 527, 533 (1986). The United States Supreme Court has stated that the procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See id. Bypass can occur at any level of the state proceedings if a state has procedural rules that bar its courts from considering claims not raised in a timely fashion. Id.
The Supreme Court of South Carolina will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. See S.C. Code Ann. § 1727-90; Aice v. State, 409 S.E.2d 392, 394 (S.C. 1991). 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. S.C. App. Ct. R. 203(d)(3), 243. 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. See Reed v. Ross, 468 U.S. 1, 11 (1984); see also Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995). As the United States Supreme Court explained:
. . . [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, 468 U.S. at 10-11.
However, if a federal habeas petitioner can show both (1) “‘cause' for noncompliance with the state rule” and (2) “‘actual prejudice resulting from the alleged constitutional violation[, ]'” the federal court may consider the claim. Smith, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986). Further, if the petitioner does not raise cause and prejudice, the court need not consider the defaulted claim. See Kornahrens, 66 F.3d at 1363.
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Absent a showing of cause and actual prejudice, a federal court is barred from considering the claim. Wainwright, 433 U.S. at 87. In such an instance, the exhaustion requirement is technically met, and the rules of procedural bar apply. Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915.
Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this Court may consider claims that have not been presented to the Supreme Court of South Carolina in limited circumstances-where 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 where a “fundamental miscarriage of justice” has occurred, Carrier, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim, where the novelty of the constitutional claim is such that its legal basis is not reasonably available to the petitioner's counsel. Id. at 487-89; Reed, 468 U.S. at 16. Absent a showing of “cause, ” the court is not required to consider “actual prejudice.” Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice to excuse a default. Carrier, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error. Engle v. Isaac, 456 U.S. 107, 134-35 (1982).
As an alternative to demonstrating cause for failing to raise the claim, the petitioner may show a miscarriage of justice. To demonstrate a miscarriage of justice, the 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 demonstrate this actual innocence standard, the petitioner's case must be truly extraordinary. Carrier, 477 U.S. at 496.
DISCUSSION
Ground One
Respondent argues she is entitled to summary judgment on Ground One on the basis that the AEDPA standard has not been met. [Doc. 34 at 21-23.] The Court agrees.
Under the AEDPA, a federal court may not grant relief unless the underlying state court decision was contrary to or an unreasonable application of federal law, as determined by the United States Supreme Court, 28 U.S.C. § 2254(d)(1), or based on an unreasonable determination of the facts before the court, id. § 2254(d)(2). The Supreme Court has held the “contrary to” and “unreasonable application of” clauses present two different avenues for relief. Williams, 529 U.S. at 405. The Court stated there are two instances when a state court decision will be contrary to Supreme Court precedent:
A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases.... A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.Id. at 405-06. Additionally, a state court decision is an unreasonable application of Supreme Court precedent when the decision “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” Id. at 407-08; see also Richter, 562 U.S. at 102 (“Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.... It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.”). Finally, a decision cannot be contrary to or an unreasonable application of Supreme Court precedent unless applicable Supreme Court precedent exists; without applicable Supreme Court precedent, there is no habeas relief for petitioners. Virsnieks v. Smith, 521 F.3d 707, 716 (7th Cir. 2008); see Bustos v. White, 521 F.3d 321, 325 (4th Cir. 2008).
Relevant Facts
At the outset of the Neil v. Biggers hearing, the prosecution moved to have the courtroom emptied due to certain victims' fear of retribution from Petitioner's family members. [App. 105.] The prosecution informed the court that victims Delores and Korey had been offered bribes from Petitioner's sister not to testify and Toran had been repeatedly threatened by Petitioner's family members, and for that reason the victims were in fear of seeing Petitioner. [App. 105.] Schnee objected to clearing the courtroom, arguing that singling out Petitioner's family would not be fair to Petitioner, that the prosecution had not offered any documentation to Schnee or to the court of such communications, and that Petitioner and his family disputed that any such actions had occurred. [App. 106-07.] The trial granted the motion. [App. 107.] As the discussion continued, the prosecution indicated that proceedings could likely be conducted in such a manner that the jury would not see people exiting the courtroom. [App. 107-08.]
The Due Process Clause provides that identification testimony resulting from unnecessarily suggestive procedures that may lead to an irreparably mistaken identification can be excluded. Neil v. Biggers, 409 U.S. 188, 198 (1972). In deciding whether to exclude such evidence, “[f]irst the court must consider whether the identification procedure is unnecessarily suggestive.” Satcher v. Pruett, 126 F.3d 561, 566 (4th Cir. 1997). “A procedure is unnecessarily suggestive if a positive identification is likely to result from factors other than the witness's own recollection of the crime.” Id. (internal quotation marks omitted). Then, the court must look at the five Biggers factors to determine if the identification testimony is nevertheless reliable under the totality of the circumstances. Id. The five factors outlined in Biggers are: (1) the witness's opportunity to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the witness' level of certainty at the confrontation; and (5) the time between the crime and the confrontation. 409 U.S. at 199-200.
Following the Biggers hearing, the prosecution extended its motion to have the courtroom empty for Regina's and Shamael's testimony. [App. 221-22.] Schnee objected to the motion, arguing that the prosecution had not established that there had been any threats or that there was any reasonable fear on the part of the witnesses. [App. 222.] The court overruled the objection and granted the prosecution's motion as to those two witnesses. [App. 222.]
In its opening statement, the prosecution stated that the victims, following the robbery, were afraid of retaliation and “worr[ied] for their families, their reputations, [and] their jobs.” [App. 242.] The prosecution further represented during its opening statement that the victims who would be testifying were present only because they were under subpoena and that Korey would not be testifying because he feared the consequences if he did. [App. 242-43.] Schnee objected, and the court instructed the prosecutor to “confine [her] opening statement to the facts in the case.” [App. 243.]
Following opening statements, the court sent the jury out, informing them that he had a matter to discuss with the attorneys. [App. 247.] After the jury left, the prosecution requested to have the courtroom cleared for the testimony of Shamael and Delores. [App. 247.] Schnee objected again and moved for a mistrial in light of the prosecution's opening statement. [App. 247-48.] He argued that the jury had heard allegations of fear of retaliation and that one witness would not be testifying at all due to fear. [App. 248.] He further argued that clearing the courtroom for the testimony would confirm in the jury's eyes that Petitioner and his family were somehow a threat, which would prejudice Petitioner's case. [App. 248.] The prosecution responded that the witnesses would likely be providing testimony regarding the fear discussed and that such testimony would go to the witnesses' truthfulness and credibility. [App. 249.] If such testimony was not elicited, then there could be a curative instruction. [App. 249.] The court overruled defense counsel's mistrial motion. [App. 249.]
The courtroom was then cleared prior to the entrance of the jury. [App. 249.] During their testimony, Regina, Shamael, and Delores each testified that they were initially scared to contact the police as a result of the invaders' threat to kill them if they did. [App. 264, 295, 344.] Regina also testified that she delayed, for the same reason, in responding to the police's request that she come in to provide a statement and view a photo lineup. [App. 266-67.]
Before calling Toran as a witness, the prosecution requested, based on concerns Toran had expressed, that the courtroom be clear for his testimony as well. [App. 348.] However, the trial court denied that motion, noting that in contrast to the victims, Toran had no interest in anonymity. [App. 349.]
At the close of evidence, Schnee renewed his motion for a mistrial based on the prosecutor's comments during opening statement about the victims being fearful about testifying, coupled with the closure of the courtroom. [App. 496-97.] The prosecution responded that the witnesses explained what their fear was during their testimony and noted that they had “made sure the room was cleared without the jury even knowing what had happened.” [App. 497.] The court overruled the renewed motion. [App. 498.]
Petitioner argued on direct appeal that the court's rulings closing the courtroom violated his constitutional rights under the federal and South Carolina constitutions to a public trial. [App. 623.] The South Carolina Court of Appeals ruled, however, that since counsel had not raised any constitutional argument at trial, the issue was not preserved. [App. 623.]
At the PCR evidentiary hearing, Petitioner testified that Schnee was ineffective for failing to properly preserve his constitutional argument against closing the courtroom. [App. 12-15.] Petitioner asserted that “the outcome of the trial would have been . . . totally different” had the issue been preserved for appeal. [App. 15.] He later testified that had Schnee properly preserved the constitutional argument, he could have potentially won that issue on appeal. [App. 29.]
Schnee testified that the courtroom closure issue was “a curveball” from the hearing in that he had no advance notice that that would be an issue. [App. 45.] Regarding preservation, he testified that he believed that the arguments he made were sufficient to encompass the constitutional argument, but he conceded he did not explicitly mention constitutional rights in his argument. [App. 46, 56-57.]
The PCR court rejected Petitioner's claim, concluding that Petitioner was required to prove prejudice from the alleged ineffectiveness in failing to object to the courtroom closure and that Petitioner had failed to do so. [App. 684.]
Discussion
Petitioner now challenges the PCR court's finding that he failed to prove he was prejudiced by Schnee's failure to object on constitutional grounds. The Court cannot find that the PCR court's determination was unreasonable, however.
In order to establish a claim of ineffective assistance of counsel, a PCR applicant must prove (1) counsel's performance was deficient and (2) that deficient performance prejudiced the applicant's case. See Strickland v. Washington, 466 U.S. 668, 687 (1984). “[W]hen a defendant raises a public-trial violation via an ineffective-assistance-of-counsel claim, Strickland prejudice is not shown automatically.” Weaver v. Massachusetts, 137 S.Ct. 1899, 1911 (2017). “Instead, the burden is on the defendant to show either a reasonable probability of a different outcome in his or her case or, as the Court has assumed for these purposes, to show that the particular public-trial violation was so serious as to render his or her trial fundamentally unfair.” Id. (citation omitted).
The Court explained that nature of a public-trial error and “the difference between a public-trial violation preserved and then raised on direct review and a public-trial violation raised as an ineffective-assistance-of-counsel claim” justify placing the burden on petitioners to prove Strickland prejudice when such violations are raised during postconviction proceedings. Weaver, 137 S.Ct. at 1912. Accordingly, the Court explained that the fact that an error would have warranted automatic reversal on direct review had it been preserved does not prevent a petitioner from being required to show Strickland prejudice when that error is raised during postconviction proceedings. Id. This principle forecloses Petitioner's argument that he has demonstrated Strickland prejudice merely by showing that he would have been entitled to automatic reversal on direct review on the public-trial issue had it been properly preserved [Doc. 42 at 5].
Here, Petitioner maintains that had counsel raised the objection that closing the courtroom was unconstitutional, there is a reasonable probability that the outcome of his trial would have been different. He argues,
[P]rejudice was clearly evident because in the State's opening it was told to the jury that allegedly there were threats to the State[']s witnesses and that one witness refused to come to court. From there the jury was sent out and when they returned the courtroom was empty except for person[nel]. After two witnesses by the State gave testimony, the jury was again sent out and again, when they returned this time, the courtroom once again had people in it.[Doc. 42 at 4.] The Court is unpersuaded.
The prosecutor told the jury during its opening statement that as the four men left Delores's apartment, “they turned back around to tell the victims that if they contacted police, they would kill them.” [App. 239.] The prosecutor also told the jury that the effects of that terrifying night have stayed with the victims. [App. 242.] She specifically noted that Shamael's child wakes up sometimes in the night reliving the terror. [App. 242.] She added:
The adults haven't fared much better. They're still scared now, only in a different way. They worry for their families, their reputations, their jobs.
They're only here because they are under subpoena. They worry that this time, it will happen again. What happened before will happen to them again, except that this time, it will be in retaliation instead of just the unlucky recipient.
[Korey], he felt he had too much on the line. He plain out thought it was too risky for him . . . and hi[s] family to testify.[App. 241-43.]
Petitioner's argument appears to be that the jury may have inferred that the courtroom was cleared to accommodate the victims' fears that they were putting themselves in danger by testifying against Petitioner. Even assuming that the jury did draw that inference, there is no reason to believe it prejudiced the jury against Petitioner. The four invaders committed many heinous actions that night, one of which was threatening that the victims would be killed if they went to the police. [App. 295.] That the victims were frightened by that threat would be wholly expected. But the jury would blame Petitioner for that fear only if they found Petitioner was one of the four invaders; there was no reason for the jury to infer that any threat had been made after the night of the robbery. Accordingly, there is no reasonable probability that the judge's decision to close the courtroom for the victims' testimony had any impact on the jury's verdict.
Nor has Petitioner shown that his counsel's failure to object to the court closure on constitutional grounds rendered his trial fundamentally unfair. As was true in Weaver, the “trial was not conducted in secret or in a remote place”; “there was a record made of the proceedings that does not indicate any basis for concern, other than the closure itself”; there is “no suggestion of misbehavior by the prosecutor, judge, or any other party”; and there is “no suggestion that any of the participants failed to approach their duties with the neutrality and serious purpose that our system demands.” Id. at 1911. Indeed, other than his argument that the jury could infer that Petitioner was dangerous from the decision to clear the courtroom-which the Court has already addressed-Petitioner does not identify any reason why any public-trial violation would have caused his trial to be fundamentally unfair.
In sum, the Court concludes that Petitioner has failed to satisfy the AEDPA standard regarding the PCR court's finding that Petitioner failed to show Strickland prejudice from Schnee's failure to raise a constitutional public-trial objection and the Court recommends that Respondent's motion for summary judgment be granted as to Ground One.
Ground Two
As noted, in Ground Two, Petitioner contends that his trial counsel was ineffective for failing to make a Confrontation Clause objection to the mention of Johnson during opening statements or to Pegram's testimony that Johnson identified Petitioner and others as the culprits in the robbery. [Doc. 1 at 7.] Respondent argues that Ground Two is procedurally defaulted. [Doc. 34 at 11-13.] The Court agrees.
Relevant Facts
Petitioner's argument relates to when Schnee learned that the prosecution did not intend to call Johnson as a witness and how Schnee reacted when the prosecution made reference to Johnson in its opening statement and Pegram testified about Johnson. Thus, the Court begins with a brief explanation of Johnson's role, and expected role, in the proceedings; the facts concerning when Schnee realized Johnson would not be testifying; and, finally, a description of the events during the trial that Petitioner maintains constitute Schnee's ineffectiveness.
Johnson's Role
Before the trial, the court held a hearing addressing a request by Schnee for a copy of a written statement that Johnson had allegedly provided to the police. [App. 101-27.] At the hearing Johnson testified that Pegram had questioned him about the robbery and that he had told the truth about what he knew, including that Toran had been involved. [App. 117-18.] He testified that he told officers he did not know who Petitioner was and that he signed a written statement implicating Toran. [App. 117-19.]
Investigator Pegram also testified at the hearing [App. 121-26], but his account differed from Johnson's. Pegram testified that, when questioned about the robbery based on his possession of the ID of one of the victims, Johnson identified the four people involved in the robbery; he said that the perpetrators actually tried to give him some property that they had taken; and he said that one of the perpetrators had struck a female victim in the head with a gun. [App. 122, 124.] However, Pegram testified that Johnson refused to provide a written statement because “he didn't want anything in writing that someone else could see.” [App. 122-23.]
Considering the testimony presented, the court denied Petitioner's request to produce Johnson's written statement, finding that no such statement existed. [App. 127.]
When Schnee Realized Johnson Would not Testify
During the PCR evidentiary hearing, Petitioner and Schnee offered conflicting testimony about whether Schnee knew before the trial that Johnson would not be testifying. Petitioner claimed that Schnee knew before the beginning of opening statements that Johnson had been threatened and had decided against testifying. [App. 23-24.] Indeed, Petitioner testified that Schnee told him before opening statements that Johnson would not be testifying. [App. 24.] On the other hand, Schnee testified that he continued to believe during the entire trial that the prosecution intended to call Johnson as a witness. [App. 46, 58-59.] Though Schnee confirmed that Petitioner had passed on to him what he had heard about Johnson not testifying, Schnee stated that the prosecution had represented that Johnson would still be testifying. [App. 46, 58-59.] The PCR judge credited Schnee's account and found that Schnee did not know in advance that Johnson would not testify. [App. 685-86.]
References to Johnson at Trial and Schnee's Responses
During opening statements at trial, the prosecution informed the jury that the police found Korey's ID in Johnson's apartment and that, when questioned, Johnson provided details of the robbery, including that Petitioner and Toran were involved. [App. 241.] Pegram's testimony was consistent with that opening statement. He testified that, when Johnson was asked how he came to possess Korey's ID, Johnson confirmed that it was taken during the robbery, he identified the perpetrators, and he added the detail that one of the men-Petitioner-had pistol whipped a female victim. [App. 404-05.] When asked why he believed Johnson's account, Pegram responded that evidence from the robbery was found in Johnson's apartment, the police could connect Petitioner and Toran to the apartment complex where Johnson lived, and Johnson possessed information that was corroborating to the information the police had. [App. 405-06.] Pegram also testified that Johnson had not provided a written statement because he “didn't want his name on a statement ratting out people that he hangs out with.” [App. 407.]
After the prosecution rested, without calling Johnson as a witness, Schnee informed the court, “[T]here is an issue with [Johnson]. His attorney . . . is talking to him right now. It's my understanding he might be asserting the fifth in terms of his testimony, but we should know that shortly.” [App. 468.] Johnson was taken to a holding cell, and the court welcomed Johnson's attorney prior to the defense beginning with other witnesses. [App. 468-69.] However, the court did not revisit the topic.
During the PCR evidentiary hearing, Petitioner testified that Schnee did not raise a hearsay objection either to the prosecution's mention of Johnson's testimony during its opening statement or to Pegram's testimony about Johnson. [App. 21-23.] Petitioner further testified that Schnee did not object when Pegram testified that he believed what Johnson had told him [App. 22-23] and that Schnee did not “move for a mistrial regarding the issue of [Johnson] testifying or bolstering of his testimony or anything of that nature throughout the trial” [App. 25].
Schnee also testified at the PCR evidentiary hearing. [App. 40-64.] He stated that he never considered calling Johnson as part of the defense's case-in-chief. [App. 47.] He conceded that, concerning the references to Johnson in the prosecution's opening statement and in Pegram's testimony, Schnee neither objected nor moved for mistrial on the basis of hearsay, bolstering, or the fact that the jury heard that information regarding Johnson without Johnson testifying. [App. 58-59.]
As noted, the PCR court found that Schnee had no advance notice that Johnson would not be testifying. [App. 685-86.] The PCR court further found that Petitioner failed to prove either “that trial counsel's actions were anything other than strategic” or that there was “any resulting prejudice.” [App. 685-86.]
Discussion
Respondent now argues that Ground Two is procedurally defaulted because Petitioner failed to raise the issue, either in his PCR application or in the PCR evidentiary hearing, that Schnee was ineffective by failing to object to the references to Johnson on the grounds of a Confrontation Clause violation. [Doc. 34 at 11-13.] Respondent contends that the arguments that Petitioner made to the PCR court that related to Johnson pertained to allowing the bolstering references to Johnson and admitting the alleged hearsay testimony from Officer Pegram but did not concern ineffectiveness based on failure to object on the basis of the Confrontation Clause. [Id. at 11.] Respondent further maintains that the PCR court never made a finding in its order concerning whether Schnee was ineffective for failure to object on Confrontation Clause grounds but rather that the PCR court reviewed only Petitioner's allegation that Schnee was ineffective for “‘failure to object.'” [Id.] Respondent contends that it was not until Petitioner's PCR appeal that Petitioner first raised the argument that Schnee was ineffective for failing to object based on the Confrontation Clause. [Id. at 11-12.] The Court agrees with Respondent that the argument is procedurally defaulted.
The Court notes that in Petitioner's pro se PCR application, he alleged that Schnee “did not raise objection under my 5, 6, 14 Amendment rights.” [App. 651.] However, that reference to the Sixth Amendment appears to concern his public-trial rights, not his rights under the Confrontation Clause, which Petitioner never specifically referenced during the PCR proceeding.
The Court notes initially that Petitioner never addresses Respondent's argument that Petitioner failed to raise to the PCR court the argument that Schnee was ineffective for failing to object on Confrontation Clause grounds. [Doc. 42.] Petitioner's silence on this point is understandable in light of the fact that Respondent is correct that Petitioner never argued that Schnee should have raised a Confrontation Clause objection. The closest Petitioner came to making such an ineffectiveness argument to the PCR court was when he asserted that Schnee had been ineffective for failing to object to the references to Johnson on the basis of hearsay. [App. 21-23, 674.] However, “it is not enough that the argument presented [on habeas] stems from the same factual scenario [as the argument presented to the state courts]; rather, [to avoid procedural default, ] the legal argument must be the same as the argument presented below.” McRant v. Warden MacDougall Corr. Inst., No. 6:14-cv-03179-JMC, 2015 WL 5092632, at *8 (D.S.C. Aug. 27, 2015). Thus, Petitioner's argument in the PCR court that Schnee was ineffective for failing to object on hearsay grounds is insufficient to avoid procedural default. See Frankenberry v. Coleman, Civ. Action No. 09-557, 2009 WL 3734140, at *4 n.5 (W.D. Pa. Nov. 6, 2009) (holding that claim that counsel was ineffective for failing to raise a Confrontation Clause objection was procedurally defaulted when the petitioner had raised below only a claim that counsel was ineffective for failing to object based on hearsay), aff'd 365 Fed.Appx. 334 (3d Cir. 2010).
With Petitioner not having argued to the PCR court that Schnee was ineffective for failing to object on Confrontation Clause grounds, the PCR court never ruled on that claim. And Petitioner does not raise cause or prejudice for his failure to raise the proper argument to the PCR court, nor does he assert actual innocence. The Court therefore concludes that Ground Two is procedurally defaulted and recommends that Respondent's summary judgment motion be granted as to Ground Two and that his Petition be dismissed with prejudice as that claim is concerned.
Even assuming arguendo that the issue were not procedurally defaulted, the Court concludes that Petitioner could not satisfy the AEDPA standard regarding his claim that Schnee was ineffective for raising a Confrontation Clause objection. The Sixth Amendment, as applied to the states through the Fourteenth Amendment, provides that a criminal defendant enjoys the right “to be confronted with the witnesses against him.” U.S. Const. amend. VI; see U.S. Const. amend. XIV. “In Crawford v. Washington, [541 U.S. 36, 68 (2004)], the Supreme Court held that the [Confrontation] Clause bars admission of testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.” United States v. Jackson, 706 F.3d 264, 266 (2013). Here, the information presented to the jury about what Johnson told Pegram regarding the robbery was not hearsay. “‘Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), SCRE. The references to and evidence of Johnson's statements were offered not for the truth of the matter Johnson asserted, but rather, to explain why Pegram originally focused his investigation on Petitioner and Toran, including setting up the photographic lineups that resulted in the victims' identification of these two men. As such, no Confrontation Clause violation occurred. See United States v. Jordan, 952 F.3d 160, 168 (4th Cir. 2020) (“The [Confrontation] Clause does not bar . . . the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” (internal quotation marks omitted).
The facts here are analogous to those of United States v. Fox, 495 Fed.Appx. 290 (4th Cir. 2012), on the hearsay issue. In that case, Chavez Depaul Fox's term of supervised release was revoked after he was arrested twice pursuant to traffic stops and found to be in possession of marijuana. Id. at 291. At the revocation hearing, a police officer (“Officer Haynes”) who had effectuated the first traffic stop and discovered Fox in possession of marijuana testified that his captain had told him on the morning of the stop that the captain had received information that a “Paul Fox” was in possession of three pounds of marijuana. Id. at 292. On appeal of the revocation, Fox argued that the Officer Haynes's testimony regarding what his captain had told him was hearsay and the district court had improperly relied on that hearsay in finding that Fox had violated the terms of his supervised release. Id. at 291-92. The Fourth Circuit disagreed, concluding that the statement was not hearsay because it “was not offered for the truth of the matter asserted, but rather to explain why he was looking for Fox's vehicle on the date in question.” Id. at 292. The court noted that “[o]ut of court statements are not hearsay . . . ‘if they are offered for the limited purpose of explaining why a government investigation was undertaken.'” Id. (alteration omitted).
The Fourth Circuit also noted that “even if the statement qualified as hearsay, the two officers subsequently testified to their first hand accounts of finding and seizing marijuana from Fox's vehicle, ” thereby demonstrating the reliability of the informant's information and supporting the district court's decision to consider the evidence in the context of a supervised-release-revocation hearing. Id. at 292.
Also similar is Rhodes v. State, 561 S.E.2d 606 (S.C. 2002). In that case, a driver (“Cook”) and two passengers were in a car when a person outside the car pulled out a pistol. Id. at 607-08. Cook attempted to drive away as the man tried to rob them and fired into their car, hitting one of the passengers. Id. at 608. The next day, a friend of Cook's told Cook he had heard that Rhodes was involved in the shooting. Id. The friend gave Cook some yearbooks to look through to see if Cook recognized Rhodes. Id. The friend told Cook that he “‘wasn't sure whether [Rhodes was the shooter] or not” but that that was “‘just what [he had] heard.'” Id. When Cook saw Rhodes's picture in one of the yearbooks, he identified Rhodes as the shooter. Id. Based on that identification, the police had Rhodes arrested. Id. Later, Cook and another of the victims were able to identify Rhodes from a photographic line-up set up by the police. Id. Rhodes was eventually convicted of several crimes related to the shooting after a trial. Id. at 607. Subsequently, at a PCR hearing, Rhodes claimed that his trial counsel had been ineffective for failing to raise a hearsay objection to testimony that the friend had heard Rhodes was responsible for the shooting. Id. at 608-09. The PCR court held that counsel was not ineffective for failing to object and that there was no prejudice in any event. Id. at 609. On review, the Supreme Court of South Carolina held that the friend's testimony about hearing a rumor of Rhodes's involvement was not hearsay. Id. The court reasoned that the testimony “was not offered to prove that [Rhodes] had committed the crimes, but rather to explain Cook's identification of [Rhodes] in the yearbook, ” which “in turn led to [Rhodes's] apprehension and the subsequent identification of him by both victims via the photographic line-up.” Id.
Because the reference to and evidence about Johnson's statements were not hearsay, Schnee was not ineffective for failing to raise a Confrontation Clause objection and Petitioner was not prejudiced by Schnee's failure to do so.
In sum, the Court concludes that Ground Two is procedurally barred and that, in any event, because the reference to and evidence of Johnson's statements were not hearsay, Plaintiff cannot satisfy the AEDPA standard as to Ground Two regarding either Strickland prong. The Court therefore recommends that Respondent's summary judgment motion be granted as to Ground Two.
In Petitioner's Response in opposition to Respondent's summary judgment motion, Petitioner appears to raise several new claims that were not asserted in his Petition. These include challenging the validity of the photographic lineup under Biggers and incourt identification by witnesses concerning his physical attributes [Doc. 42 at 7]; challenging the PCR court's finding that Schnee was effective despite failing to object on the basis of hearsay to testimony offered by Pegram [Id. at 10-12]; alleging that Schnee's disbarment as a basis for ineffective assistance of counsel [Id. at 13]; and alleging his indictment was altered after it was true billed and that it was fraudulent for the lack of a grand jury session for April 2010 [Doc. 42 at 15-16]. “To the extent that [Petitioner] intends to raise [new claims] of ineffective assistance of counsel, th[ose] argument[s] w[ere] not raised in the petition and will not be considered by this court.” Rice v. McFadden, No. 6:16-302-MGL-KFM, 2017 WL 633410, at *5 n.3 (D.S.C. Jan. 27, 2017), Report and Recommendation adopted by 2017 WL 626106 (D.S.C. Feb. 15, 2017); see Temple v. Oconee Cnty., C/A No. 6:13-144-JFA-KFM, 2014 WL 4417702, at *13 (D.S.C. Sept. 8, 2014) (holding that new claims cannot be raised in response to a summary judgment motion).
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Respondent's motion for summary judgment [Doc. 35] be GRANTED and the Petition [Doc. 1] be DISMISSED WITH PREJUDICE.
IT IS SO RECOMMENDED.
NOTICE OF RIGHT TO FILE OBJECTIONS TO REPORT AND RECOMMENDATION
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
250 East North Street, Suite 2300 Greenville, South Carolina 29601
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).