Opinion
C. A. 1:23-2064-JFA-SVH
11-13-2023
Armando Chestnut, Petitioner, v. Warden Cohens, R.C.I., Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge.
Armando Chestnut (“Petitioner”) is currently incarcerated in the South Carolina Department of Corrections pursuant to orders of commitment by the Horry County Clerk of Court. Proceeding pro se, Petitioner filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's return and motion for summary judgment. [ECF Nos. 18, 19]. The motion having been fully briefed [ECF No. 24], it is ripe for disposition.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted.
I. Factual and Procedural Background
In 2012, Petitioner was indicted by the Horry County Grand Jury for murder (2012-GS-26-03115), attempted murder (2012-GS-26-03116), pointing or presenting a firearm (2012-GS-26-03117), and second degree assault and battery by mob resulting in serious bodily injury (2012-GS-26-03118). [ECF No. 18-5 at 1111-17]. Petitioner was represented by Barbara W. Pratt, Esq. (“trial counsel”). [ECF No. 18-1 at 1]. Bradley C. Richardson and Travis Hyman of the Fifteenth Circuit Solicitor's Office represented the State. Id. On July 15-19, 2013, the case proceeded to trial before the Honorable Steven H. John, Circuit Court Judge. Id. On July 19, 2013, Petitioner was found guilty of voluntary manslaughter, attempted murder, pointing and presenting a firearm, and second-degree assault and battery. [ECF No. 18-4 at 949-950]. Judge John sentenced Petitioner to life imprisonment without the possibility of parole pursuant to S.C. Code Ann. § 17-25-45 based on Petitioner's prior most serious offenses. Id. at 974-75, see also S.C. Code Ann. § 17-25-45 (a person found guilty of crimes categorized as “most serious offense[s]” “must be sentenced to a term of imprisonment for life without the possibility of parole”).
Petitioner filed a timely notice of appeal and was represented by Chief Appellate Defender Robert M. Dudek of the South Carolina Commission on Indigent Defense. Id. at 977. On appeal, Petitioner presented the following issue:
Whether the court erred by refusing to grant a new trial where it erroneously gave a Belcher instructionthat the jury could infer malice from the use of a deadly weapon where self-defense was a verdict option, and the judge's later instruction that “if there's self-defense, there's no inference that can be associated with the use of a deadly weapon,” was hopelessly confusing, and exacerbated rather than cured the prejudice?Id. at 980. The South Carolina Court of Appeals (“Court of Appeals”) affirmed the convictions by unpublished opinion, finding the issue on appeal not preserved. [ECF No. 18-5 at 1037-38]. The remittitur was issued on June 17, 2016. See id. at 1048.
In State v. Belcher, the South Carolina Supreme Court held that a “jury charge instruction that malice may be inferred from the use of a deadly weapon is no longer good law in South Carolina where evidence is presented that would reduce, mitigate, excuse or justify homicide.” 685 S.E.2d at 80304. The court further held that “[t]he permissive inference charge concerning the use of a deadly weapon remains a correct statement of the law where the only issue presented to the jury is whether the defendant has committed murder (or assault and battery with intent to kill)[.]” Id. at 810.
Petitioner timely filed a post-conviction relief (“PCR”) application on December 7, 2016, alleging “ineffective assistance of counsel” and “Due Process.” Id. at 1041. Respondent made its return on October 24, 2017, requesting an evidentiary hearing. Id. at 1046-52.
Thereafter, Petitioner, through counsel Daniel A. Selwa, II, amended his application to include the following specific claims for relief:
1. “Trial Counsel Waived Petitioner's Right to an Immunity Hearing”
a. “Trial counsel's waiver of Petitioner's right to an immunity hearing pursuant to 16-11-440(c), Trial
Transcript 42/12-43/10, was ineffective assistance of counsel that resulted in prejudice to Petitioner.”
b. “Trial counsel stated that this was a ‘matter of strategy' and stated, ‘we do not believe that it would add anything to this particular case that we would not be able to ask in a later motion.' Id.”
c. “Trial counsel's advice to petitioner to waive his right to a ‘stand your ground' hearing was ineffective assistance of counsel. Trial counsel's statement that it would not add anything that ‘we would not be able to ask in a later motion' was incorrect and indefensible.”
2. “Trial Counsel Allowed Jurors to Believe Incorrectly that Petitioner had a Duty to Retreat”
a. “Trial counsel's waiver of Petitioner's rights under S.C. Code Section 16-11-440(c) was ineffective assistance of counsel that resulted in prejudice to Petitioner because the jurors were informed by the Court, and the prosecutor argued in his closing, that Petitioner had a duty to retreat.” (emphasis in original)
b. “Pursuant to the plain language of 16-11-440(c), if Petitioner: 1) was attacked in a place where he had a right to be, then 2) he had the right to stand his ground and meet force with force, including deadly force, if 3) he reasonably believed it was necessary to prevent death or great bodily injury to himself or another person.”
c. “There was more than sufficient testimony and evidence presented at the trial from which the jurors could have concluded that Petitioner and Petitioner's friend Thoros were in a place where they had the right to be and that Petitioner stood his ground and met force with deadly force with the reasonable belief that it was necessary to prevent death or great bodily injury to himself or Thoros.”
d. “By waiving Petitioner's substantial rights under 16-11-440(c), trial counsel caused the jurors to believe that Petitioner had a duty to retreat pursuant to the older common law definition of self-defense that had been replaced by 16-11-440(c).” (emphasis original)
e. “There was no valid trial strategy employed by trial counsel that could possibly justify subjecting Petitioner to a duty to retreat when he did not have a duty to retreat pursuant to 16-11-440(c). Although trial counsel could have
corrected this ‘in a later motion,' she did not.” (emphasis in original)
3. “Trial Counsel Failed to Object to the Prosecutor's Argument that Petitioner had a Duty to Retreat”
a. Cites to Trial Transcript pp. 891-92.
4. “Trial Counsel Failed to Object to the Court's Jury Instruction that Petitioner had a Duty to Retreat”
a. Cites to Trial Transcript pp. 927-31.Id. at 1054-56, see also id. at 1098-99.
On November 26, 2018, the Honorable Kristi F. Curtis, Circuit Court
Judge (“PCR Court”), convened an evidentiary hearing and heard testimony from Petitioner and trial counsel. Id. at 1057-58. On February 4, 2020, the PCR Court issued an order of dismissal, denying Petitioner's PCR application. Id. at 1096-1109.
On October 20, 2020, Petitioner's appellant counsel, Lara M. Caudy, Esq., filed a petition for writ of certiorari in the South Carolina Supreme Court, presenting the following issue:
Did the post-conviction relief (PCR) judge err by finding trial counsel was not ineffective when she waived Petitioner's right to a pretrial immunity hearing pursuant to the Protection of Persons and Property Act where Petitioner was prejudiced since if counsel had not waived the pretrial hearing there is a reasonable probability the trial judge would have granted Petitioner immunity from prosecution and found he lawfully acted in self-defense and the defense of others when he fired the shots that struck the decedent and injured another combatant?[ECF No. 18-7].On October 17, 2022, the Court of Appeals denied certiorari. [ECF No. 18-8].The remittitur was sent to the Horry County Clerk of Court on November 3, 2022, and filed on November 8, 2022. [ECF No. 18-9].
Pursuant to Rule 243(a), SCACR, “[a] final decision entered under the PostConviction Relief Act shall be reviewed by the Supreme Court upon petition of either party for a writ of certiorari, according to the procedure set forth in this Rule.”
Pursuant to Rule 243(1), SCACR, “[t]he Supreme Court may transfer a case filed under this rule to the Court of Appeals.”
II. Discussion
A. Federal Habeas Issues
Petitioner raises the following grounds in his federal habeas petition:
Ground One: Due Process Violation of the Fifth Amendment
Supporting Facts: The Petitioner did not knowingly and intelligently waive his right to a[n] immunity hearing.
Ground Two: Denied Assistance of Counsel
Supporting Facts: Trial counsel fail[ed] to object to the improper jury instruction timely.
Ground Three: Administrative Procedure Violation
Supporting Facts: The process fail[ed] to make available for inspection procedure used by the agency.
Ground Four: Structural Error
Supporting Facts: The trial court gave a[n] incorrect jury charge.[ECF No. 6].
B. Standard for Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e).
C. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (2000). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 410. Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
2. 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 in a similar manner 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.
a. 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. 28 U.S.C. § 2254(b)(1)(A). 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 (S.C. 1976). If the PCR court fails to address a claim as is required by S.C. Code Ann. § 17-27-80, 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 result in the application of a procedural bar by the South Carolina Supreme Court. Marlar v. State, 653 S.E.2d 266 (S.C. 2007). Furthermore, strict time deadlines govern direct appeal and the filing of a PCR in the South Carolina courts. A PCR 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 Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009), the Fourth Circuit found that, prior to the Supreme Court of South Carolina's November 5, 2007, decision in Marlar, South Carolina courts had not been uniformly and strictly enforcing the failure to file a motion pursuant to Rule 59(e), SCRCP, as a procedural bar. Accordingly, for matters in which there was a PCR ruling prior to November 5, 2007, the court will not consider any failure to raise issues pursuant to Rule 59(e) to effect a procedural bar.
The United States Supreme Court has held that “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process”-which includes “petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This opportunity must be given by fairly presenting to the state court “both the operative facts and the controlling legal principles” associated with each claim. Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (citing Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (internal quotation marks omitted)). That is to say, the ground must “be presented face-up and squarely.” Mallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994) (citation and internal quotation marks omitted).
The South Carolina Supreme Court has held that the presentation of claims to the state court of appeals without more is sufficient to exhaust state remedies for federal habeas corpus review. State v. McKennedy, 559 S.E.2d 850 (S.C. 2002); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454 (S.C. 1990). The McKennedy court held that In re Exhaustion had placed discretionary review by the South Carolina Supreme Court “outside of South Carolina's ordinary appellate review procedure pursuant to OSullivan.” 559 S.E.2d at 854. As such, it is an “extraordinary” remedy under OSullivan, “technically available to the litigant but not required to be exhausted,” Adams v. Holland, 330 F.3d 398, 403 (6th Cir. 2003).
Because the South Carolina Supreme Court has held that presentation of certain claims to the Court of Appeals without more is sufficient to exhaust state remedies, 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.
b. Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the Supreme Court explains:
. . . [state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984).
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 v. Murray, 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), superseded by statute on other grounds (AEDPA).
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. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met and the rules of procedural bar apply. See Matthews v. Evatt, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Teague v. Lane, 489 U.S. 288, 297-98 (1989); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)).
3. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the state courts 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 that a “fundamental miscarriage of justice” has occurred. Murray, 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 which hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Id. Absent a showing of “cause,” the court is not required to consider “actual prejudice.” Turner v. Jabe, 58 F.3d 924 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
4. Ineffective Assistance of Counsel Standard
Generally, to prevail on an ineffective-assistance-of-counsel claim, a petitioner must show (1) that trial counsel's performance fell below an objective standard of reasonableness and (2) that a reasonable probability exists that but for counsel's error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). The court must apply a “strong presumption” that trial counsel's representation fell within the “wide range of reasonable professional assistance,” and the errors must be “so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Harrington v. Richter, 562 U.S. 86, 104 (2011). This is a high standard that requires a habeas petitioner to show that counsel's errors deprived him “of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.
D. Analysis
As a preliminary issue, the court addresses Respondent's argument that the petition is barred by the applicable statute of limitations.
Under the AEDPA, a § 2254 petition must be filed within one year of the date on which the state court judgment became final by the conclusion of direct review or the expiration of the time for seeking review. 28 U.S.C. § 2244(d)(1)(A). The limitations period is tolled during the pendency of a properly-filed state post-conviction action, 28 U.S.C. § 2244(d)(2), but not the filing of a petition for habeas corpus in federal court. See Duncan v. Walker, 533 U.S. 167, 172-73 (2001) (finding that federal habeas petitions are not included within 28 U.S.C. § 2244(d)(2)'s provision that tolls the one year while collateral actions are pending).
Petitioner's direct appeal was resolved by the Court of Appeals in an unpublished opinion filed on June 1, 2016. Because Petitioner did not seek review by the United States Supreme Court, the AEDPA's one-year statute of limitations began running “at the expiration of the time” for seeking direct review in state court. 28 U.S.C. § 2244(d)(1)(A). Petitioner's judgment of conviction therefore became final “when his time for seeking review with the State's highest court expired.” Gonzalez v. Thaler, 565 U.S. 134, 150 (2012) (clarifying the Court's prior cases concerning 28 U.S.C. § 2244(d)(1)(A)).
Petitioner's conviction became final on June 16, 2016, upon his failure to file a petition for rehearing. See Rule 221(a), SCACR (“Petitions for rehearing must be actually received by the appellate court no later than fifteen (15) days after the filing of the opinion, order, judgment, or decree of the court.”); 28 U.S.C. § 2244(d)(1)(A); Gonzalez, 565 U.S. at 151-54 (rejecting the use of remittitur dates in applying Section (d)(1)(A)). His federal time began to run the following day, June 17, 2016.
On December 7, 2016, after 173 days had elapsed, Petitioner filed a PCR application, tolling the statute of limitations. The remittitur was issued by the Court of Appeals and filed in the Horry County Clerk of Court's Office on November 8, 2022. See Beatty v. Rawski, 97 F.Supp.3d 768, 774 (D.S.C. 2015).
Petitioner's petition for writ of habeas corpus was received in the prison mail room on May 15, 2023, after an additional 188 days had elapsed.
Because Petitioner is incarcerated, he benefits from the “prison mailbox rule.” Houston v. Lack, 487 U.S. 266 (1988). The petition includes a date stamp reflecting it was received by the prison mailroom on May 15, 2023. [ECF No. 1-11].
Therefore, in total, 361 days elapsed prior to the filing of the petition, rendering the petition timely.
1. Ground One
Petitioner's primary challenge before the court concerns his decision, on the advice of counsel, to not pursue an immunity hearing, a challenge he presented to the PCR Court and to the South Carolina Supreme Court. As explained by the PCR Court as to the applicable law:
The “Protection of Persons and Property Act” (“the Act”) provides that “[a] person who uses deadly force as permitted by the provisions of this article or another applicable provision of law is justified in using deadly force and is immune from criminal prosecution and civil action for the use of deadly force[.]” S.C. Code Ann. § 16-11-450. The Act further provides, in part, that:
A person who is not engaged in an unlawful activity and who is attacked in another place where he has a right to be, including but not limited to, his place of business, has no duty to retreat and has the right to stand his ground and meet force with force, including deadly force, if he reasonably believes it is necessary to prevent death or great bodily injury to himself or another person or to prevent the commission of a violent crime as defined in Section 16-1-60.
S.C. Code Ann. § 16-11-440(C). “A claim of immunity under the Act requires a pretrial determination using a preponderance of the evidence standard[.]” State v. Curry, 406 S.C. 364, 370, 152 S.E.2d 263, 266 (2013) (citing State v. Duncan, 392 S.C. 404, 709 S.E.2d 662 (2011)).[ECF No. 18-5 at 1103-04].
The PCR Court found in applicable part that Petitioner, in presenting this challenge, “failed to meet his burden of showing any deficiency on the part of Counsel, or that but for the deficiency alleged, the outcome of trial would have been different,” further finding as follows:
Counsel reasonably weighed the likelihood of prevailing upon the immunity hearing against the strategic disadvantage of placing the defense case on the record prior to the prosecution presenting its case to the jury, and determined the more favorable course was to waive immunity, wait until after the State presented its case-in-chief, and only then seek to present the case for self defense. Counsel articulated her strategic reasoning at the evidentiary hearing and, accordingly, this Court cannot find her to have performed deficiently.
Even if Counsel had requested a pre-trial determination of immunity under the “stand your ground” statue, the facts would not have established by a preponderance of the evidence that Applicant was entitled to immunity. The evidence presented at trial provided that Applicant was not an innocent bystander, but actively participated in the original instigation of the conflict at the pool table. Applicant took the time to prepare for further conflict by going to his car to stow away his phone and marijuana, and retrieve his gun. Thoro, the person in whose defense Applicant now claims to have acted, initiated both he original conflict and the second engagement outside. No evidence was introduced at the trial or at the evidentiary hearing to establish that Thoro was in fear for his life; to the contrary, that Thoro returned to the opposing group of combatants and reinitiated the confrontation reflects the absence of fear. Both Thoro and Applicant enjoyed ample opportunity to peaceably return to their vehicles and leave the premises. No evidence was ever recovered to show anybody fired a weapon other than Applicant, and the fight prior to the shooting was for the most
part unarmed fistfight. Applicant fired upon a retreating individual and others, and proceeded to stomp an unconscious victim who was no longer a threat. This Court perceives no reasonable probability that Applicant could have established by a preponderance of the evidence that either he or Thoro, let alone both, were without fault in bringing about the conflicts. Applicant has failed to meet his burden of showing he could have by a preponderance of the evidence established he or Thoro reasonably feared for either person's life. Applicant has failed to show prejudice under Strickland.Id. at 1104-06 (select footnotes omitted).
The PCR Court included the following footnote: “Concurrently, the Court does not find credible Applicant's testimony at the evidentiary hearing that he was merely going back for cigarettes.” [ECF No. 18-5 at 1105 n.1].
Petitioner has made no argument in support of this ground [see ECF No. 6 at 6, ECF No. 24] and has failed to show the PCR Court unreasonably applied federal law or made an unreasonable determination of the facts in finding counsel was effective. In determining whether trial counsel's performance was constitutionally deficient, “a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,” in order to avoid “the distorting effects of hindsight.” Strickland, 466 U.S. at 689.
To the extent Petitioner argues he did not “knowingly and intelligently waive his right to a[n] immunity hearing” [ECF No. 6 at 6], this ground has not been exhausted in that it was not presented either on direct appeal or to the PCR Court. Petitioner appears to concede this issue is not exhausted, stating in response to the question why state remedies had not been exhausted, as follows: “excusable neglect denied access to the law library.”
Here, the court cannot consider Petitioner's claim where he has not shown sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or that a “fundamental miscarriage of justice” has occurred. Murray, 477 U.S. at 495-96. Here, Petitioner's argument is brief and conclusory, and he fails to offer any explanation how his alleged inability to access the law library prevented him from raising a meritorious habeas claim. See also, e.g., Walker v. Bishop, No. CV TDC-20-1076, 2023 WL 6311472, at *4 (D. Md. Sept. 28, 2023) (“Courts, however, have consistently found that the fact that a petitioner was selfrepresented and lacked any specialized knowledge of the law does not establish ‘cause' for purposes of procedural default.”); Id. (collecting cases including Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004) (holding that a petitioner's pro se status, ignorance of the law and procedural requirements, and limited access to a law library did not establish cause to excuse a procedural default)).
Petitioner indicates that he also failed to exhaust Grounds Two, Three, and Four and all for the reason of “excusable neglect denied access to the law library.” [See ECF No. 6 at 8-11]. For the same reasons stated above, the court cannot consider these grounds. However, in an abundance of caution, the court addresses Petitioner's grounds concerning jury instructions where those grounds were presented, at least in part, to the PCR Court.
Accordingly, the undersigned recommends the district judge grant Respondent's motion for summary judgment as to Ground One.
Even if the court were to consider Petitioner's claim, he has offered no argument, evidence, or case law in support of his position that he did not knowingly and intelligently waive his right to an immunity hearing and instead testified that trial counsel discussed the issue with him, and on her advice, he waived his right to an immunity hearing. [ECF No. 18-5 at 106566; see also ECF No. 18-1 at 43-46 (pretrial hearing where Petitioner was sworn in, the trial judge thoroughly explained the purpose of the pre-trial hearing, confirmed Petitioner discussed the option with counsel, and confirmed he wished to waive the immunity hearing)].
2. Ground Two and Ground Four
In both Ground Two and Ground Four, Petitioner challenges jury instructions, presumably the “duty to retreat” instruction challenged by Petitioner before the PCR Court. The South Carolina Supreme Court has advised the use of the following instructions when the facts indicate a selfdefense charge is appropriate:
Self-defense is a complete defense. If established, you must find the defendant not guilty. There are four elements required by law to establish self-defense in this case. First, the defendant must be without fault in bringing on the difficulty. Second, the defendant must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury, or he actually was in such imminent danger. Third, if his defense is based upon his belief of imminent danger, a reasonably prudent man of ordinary firmness and courage would have entertained the same belief. If the defendant actually was in imminent danger, the circumstances were such as would warrant a man of ordinary prudence, firmness and courage to strike the fatal blow in order to save himself from serious bodily harm or losing his own life. Fourth, the defendant had no other probable means of avoiding
the danger of losing his own life or sustaining serious bodily injury than to act as he did in this particular instance.State v. Davis, 317 S.E.2d 452, 453 (S.C. 1984); see also, e.g., State v. McCray, 773 S.E.2d 914, 921 (S.C. Ct. App. 2015) (citing Davis, 317 S.E.2d at 453)).
As to Petitioner's challenges to the relevant jury instructions, the PCR Court found as follows:
Applicant additionally contends Counsel was ineffective in failing to object to the State's arguments in closing and the trial court's instructions to the jury that the final element of self-defense was that Applicant had no other probable way to avoid the danger of death or serious bodily injury than to act as Applicant did in the particular circumstances at issue.
The Act provides for true immunity, and conditions under which it may be asserted, but a claim for immunity must be decided prior to trial and is not an affirmative defense. As such, it is error to charge a jury with section 16-11-440(C). State v. Curry, 406 S.C. 364, 752 S.E.2d 263 (2013). Nor is S.C. Code Ann. § 16-11-450(A) to be charged to a jury; “it is a procedural subsection under which the circuit court may grant immunity from prosecution before a trial begins if the court finds the defendant lawfully acted in self-defense.” ....
The Court finds Curry dispositive as to this claim. The Act did not obviate the applicability of the fourth prong of self-defense, and instruction thereon, in all self-defense cases. The conditions and provisions of the Act are limited to claims for total immunity, not modifications upon the traditional analysis of common law self-defense. As such, the State was within its rights to argue, and the trial court was correct to instruct the jury that Applicant was subject to a “duty to retreat,” as phrased by Applicant. No meritorious basis for objected existed, and thus Applicant cannot show deficiency on the part of Counsel.[ECF No. 18-5 at 1106-07 (select citations omitted)].
Petitioner has made no argument in support of this ground [see ECF No. 6 at 6, ECF No. 24] and has failed to show the PCR Court unreasonably applied federal law or made an unreasonable determination of the facts in finding counsel was effective. See also McCray, 773 S.E.2d at 921 (“In the instant case, the facts and circumstances do not necessitate self-defense instructions in excess of the Davis instruction. A review of the record shows that McCray arrived at the area near the tree, exited his vehicle, yelled something at Porcher, and then fired his shotgun at Porcher. After shooting Porcher, McCray approached Porcher, kicked him, and yelled ‘die mother-f* * *er, die.' Accordingly, based on the facts and circumstances of this case, we find the circuit court charged the correct law and did not err in denying McCray's request to charge the jury with the language from section 16-11-440(C).”).
Accordingly, the undersigned recommends the district judge grant Respondent's motion for summary judgment as to Ground Two and Ground Four.
3. Ground Three
In Ground Three, Petitioner challenges an “administrative procedure violation,” stating “the process fail[ed] to make available for inspection procedure used by the agency.” [ECF No. 6 at 9]. For reasons already stated, the court cannot consider Petitioner's claim where he has not shown sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or that a “fundamental miscarriage of justice” has occurred. Murray, 477 U.S. at 495-96. Accordingly, the undersigned recommends the district judge grant Respondents' motion for summary judgment as to Ground Three.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the court grant Respondent's motion for summary judgment [ECF No. 19] and dismiss the petition 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
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).