Opinion
2:22-cv-00904-BHH-MGB
01-30-2024
Worth Edward Cook, III, # 293532, Petitioner, v. Warden Kenneth Nelson, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER JUDGE
Worth Edward Cook, III (“Petitioner”), a state prisoner proceeding pro se, seeks habeas relief pursuant to 28 U.S.C. § 2254. This matter is before the Court upon Respondent's Amended Motion for Summary Judgment (Dkt. No. 57). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge is authorized to review the Petition and submit findings and recommendations to the United States District Judge. For the reasons set forth below, the undersigned RECOMMENDS that Respondent's Amended Motion for Summary Judgment (Dkt. No. 57) be GRANTED.
BACKGROUND
Petitioner is currently confined within the South Carolina Department of Corrections at Broad River Correctional Institution. On March 4, 2016, Petitioner was convicted of murder following a jury trial, and sentenced to thirty-five years in prison by the Honorable R. Knox McMahon. (Dkt. No. 12-5 at 149, 165.)
This Report and Recommendation reflects the pagination assigned by the Court's automated docketing system.
Petitioner's murder charge arose from the death of Mr. David Diblasi in early 2013. (Dkt. No. 12-2 at 3-325; Dkt. No. 12-3 at 1-177; Dkt. No. 12-4 at 3-313; Dkt. No. 12-5 at 1-166.) At trial, the State presented evidence showing that Petitioner had killed Diblasi after a dispute over drugs. (Dkt. No. 12-2 at 3-325; Dkt. No. 12-3 at 1-177; Dkt. No. 12-4 at 3-313; Dkt. No. 12-5 at 1-166.) More specifically, the State presented evidence that Diblasi's body was found buried in Petitioner's backyard, that Diblasi's DNA was found on items collected from Petitioner's home, and that Petitioner was seen with Diblasi's distinctive heroin bags a few weeks after Diblasi was last seen alive. (Dkt. No. 12-2 at 3-325; Dkt. No. 12-3 at 1-177; Dkt. No. 12-4 at 3-313; Dkt. No. 12-5 at 1-166.) The State also presented evidence that Petitioner had admitted to killing Diblasi, claiming that Diblasi attacked him and, during the struggle, Petitioner accidentally stabbed Diblasi in the neck. (Dkt. No. 12-2 at 3-325; Dkt. No. 12-3 at 1-177; Dkt. No. 12-4 at 3-313; Dkt. No. 12-5 at 1-166.) According to Petitioner, the stab wound to Diblasi's neck was not fatal, so Petitioner stabbed Diblasi in the eye to keep him from suffering. (Dkt. No. 12-2 at 3-325; Dkt. No. 12-3 at 1-177; Dkt. No. 12-4 at 3-313; Dkt. No. 12-5 at 1-166.)
Petitioner claimed he killed Diblasi in self-defense. (Dkt. No. 12-2 at 3-325; Dkt. No. 123 at 1-177; Dkt. No. 12-4 at 3-313; Dkt. No. 12-5 at 1-166.) He explained that he, Diblasi, and another man-Rick Barnes-were collecting debts owed to Diblasi on the day Diblasi died. (Dkt. No. 12-2 at 3-325; Dkt. No. 12-3 at 1-177; Dkt. No. 12-4 at 3-313; Dkt. No. 12-5 at 1166.) At one point, Barnes left, and he and Diblasi picked up some meth, then went to Petitioner's home to smoke it. (Dkt. No. 12-2 at 3-325; Dkt. No. 12-3 at 1-177; Dkt. No. 12-4 at 3-313; Dkt. No. 12-5 at 1-166.) Diblasi left and Barnes brought Petitioner's girlfriend over to Petitioner's house. (Dkt. No. 12-2 at 3-325; Dkt. No. 12-3 at 1-177; Dkt. No. 12-4 at 3-313; Dkt. No. 12-5 at 1-166.) Soon after, Diblasi burst into Petitioner's home, yelling and saying that people were taking advantage of him. (Dkt. No. 12-2 at 3-325; Dkt. No. 12-3 at 1-177; Dkt. No. 12-4 at 3-313; Dkt. No. 12-5 at 1-166.) He demanded drugs and money that he claimed to have previously given to Petitioner. (Dkt. No. 12-2 at 3-325; Dkt. No. 12-3 at 1-177; D kt. No. 12-4 at 3-313; Dkt. No. 12-5 at 1-166.) Petitioner claimed he saw a knife on Diblasi's person, and that Petitioner rushed at him to grab the knife. (Dkt. No. 12-2 at 3-325; Dkt. No. 12-3 at 1-177; Dkt. No. 12-4 at 3-313; Dkt. No. 12-5 at 1-166.) A struggle ensued, Petitioner fell, and Diblasi grabbed him by the throat while holding a knife in the other hand. (Dkt. No. 12-2 at 3-325; Dkt. No. 12-3 at 1-177; Dkt. No. 12-4 at 3-313; Dkt. No. 12-5 at 1-166.) Petitioner stated that his girlfriend entered the room at that point, and Diblasi kicked her in the stomach. (Dkt. No. 12-2 at 3-325; Dkt. No. 12-3 at 1-177; Dkt. No. 12-4 at 3-313; Dkt. No. 12-5 at 1-166.) Petitioner then grabbed the knife and stabbed Diblasi. (Dkt. No. 12-2 at 3-325; Dkt. No. 12-3 at 1-177; Dkt. No. 12-4 at 3-313; Dkt. No. 12-5 at 1-166.) Petitioner testified he cleaned the room, buried Diblasi's body in the backyard, disassembled his truck and motorcycle and sold the parts, and then used Diblasi's credit card at Walmart. (Dkt. No. 12-2 at 3-325; Dkt. No. 12-3 at 1-177; Dkt. No. 12-4 at 3-313; Dkt. No. 12-5 at 1-166.) Petitioner's girlfriend testified at trial, reiterating Petitioner's version of events. (Dkt. No. 12-2 at 3-325; Dkt. No. 12-3 at 1-177; Dkt. No. 12-4 at 3-313; Dkt. No. 12-5 at 1-166.)
At the conclusion of Petitioner's trial, the jury found him guilty of murder and he was sentenced to thirty-five years' imprisonment. (Dkt. No. 12-5 at 149, 165.) Petitioner, through counsel, appealed his conviction. Appellate Defender Susan Hackett of the South Carolina Commission on Indigent Defense represented Petitioner on appeal and filed an Anders brief on his behalf on February 13, 2017. (Dkt. No. 37-7.) In that brief, Petitioner's counsel raised the following issue:
Did the trial judge err in admitting statements made by Appellant to law enforcement where (1) the police failed to scrupulously honor his invocation of his right to counsel and (2) the police coerced him to waive his rights to counsel and silence by threatening to arrest the mother of his child and place his child in the custody of social services?(Id. at 5.) Upon review, the South Carolina Court of Appeals affirmed Petitioner's conviction and issued a remittitur on April 24, 2018. (Dkt. Nos. 12-1; 37-8.)
On May 4, 2018, Petitioner filed an application for post-conviction relief (“PCR”), alleging claims of ineffective assistance of counsel, Due Process violations, and prosecutorial misconduct. (Dkt. No. 12-5 at 167-75; Dkt. No. 12-6 at 3-6.) Petitioner's PCR counsel, Art Aiken, later amended the application to include an ineffective assistance of counsel claim based upon trial counsel's failure to object to the trial court's omission of a permissive inference jury instruction on inferred malice. (Dkt. No 12-6 at 19-21.) At the hearing on Petitioner's PCR application, Petitioner's PCR counsel clarified that this claim was the only claim on which Petitioner wished to proceed. (Id. at 27.)
Following the hearing, Petitioner's application was denied. (Dkt. No. 12-6 at 45-54.) Petitioner appealed the PCR court's ruling. (Dkt. No. 12-8.) On August 11, 2021, the South Carolina Court of Appeals denied his appeal, and issued a remittitur on September 8, 2021. (Dkt. No. 12-7 at 1.)
As discussed infra, Petitioner subsequently filed a pro se application for DNA testing, a motion for a new trial, and a successive PCR application. (Dkt. Nos. 12-14, 37-5, and 56-1.)
PROCEDURAL HISTORY
Petitioner now seeks relief from this Court. In a Petition for Writ of Habeas Corpus filed on March 18, 2020, he asserts claims of actual innocence, ineffective assistance of counsel, prosecutorial misconduct, and errors by the trial court. (See generally Dkt. No. 1.) More specifically, the Petition sets forth the following grounds for relief:
Ground One : Petitioner's right to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution was violated because he is actually innocent of the charges.
Ground Two : Petitioner was denied the right to effective assistance of trial counsel, guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution.
Ground Three : Petitioner's rights to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution were violated.
Ground Four : Petitioner was denied his right to equal protection as guaranteed by the Fourteenth Amendment to the United States Constitution.
Ground Five : Petitioner's right to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution [was violated] when the trial judge erred in admitting statements by petitioner to law enforcement where (1) the police failed to scrupulously honor his invocation of his right to counsel and (2) the police coerced him to waive his rights to counsel and silence by threatening to arrest the mother of his child and place his child in the custody of social services.
Ground Six : Petitioner was denied the right to effective assistance of trial counsel as guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution because trial counsel did not object to the trial court's fail[ure] to include the permissive inference jury instructions in its jury instruction on inferred malice. Petitioner was prejudiced by counsel's ineffectiveness.(Id.) Petitioner asks the Court to vacate his conviction and release him from custody. (Id. at 40.)
Respondent was ordered to file a Return and Memorandum in response to the Petition by May 18, 2022. (Dkt. No. 7.) On April 11, 2022, Petitioner filed a Motion for Stay and Abeyance requesting that the Court stay his case until he exhausted all of his claims. (Dkt. No. 11.) In his motion, Petitioner explained that he filed a second PCR application, as well as an Application for Forensic DNA Testing, and a Motion for New Trial. (Id. at 2-3.) His second PCR application was still pending, as was his Motion for New Trial. (Id.) His Application for Forensic DNA Testing was denied, but Petitioner had appealed the state court's decision. (Id.)Accordingly, Petitioner sought to stay his case until his pending state court actions were resolved. (Id.)
Petitioner's appeal has since been denied. (Dkt. Nos. 46, 47.)
On April 25, 2022, Respondent responded in opposition to Petitioner's motion, arguing that Petitioner had not shown cause to stay his case. (Dkt. No. 12.) Petitioner replied. (Dkt. Nos. 16, 18.) Respondent then filed a Motion for Extension, requesting additional time to file the Return following the Court's ruling on Petitioner's Motion to Stay. (Dkt. No. 19.) On November 7, 2022, Petitioner filed a Motion to Amend his Petition. (Dkt. No. 25.)
On November 16, 2022, the undersigned filed a Report and Recommendation recommending that Petitioner's Motion to Stay and Motion to Amend be denied because Petitioner's “unexhausted” claims were actually exhausted, albeit procedurally defaulted. (Dkt. No. 27.) After receiving no objections to the Report and Recommendation, the Honorable Bruce H. Hendricks, United States District Judge, adopted the Report and Recommendation in full and ordered Respondent to file the Return and Memorandum by January 6, 2023. (Dkt. Nos. 29, 30.) Soon after, the Court received Petitioner's objections to the Report and Recommendation, along with a Motion to Amend the Court's Ruling on the Report and Recommendation. (Dkt. Nos. 33, 34.) Respondent responded to Petitioner's Motion on December 28, 2022. (Dkt. No. 36.)
On January 6, 2023, Respondent filed the Return and Memorandum, along with a Motion for Summary Judgment. (Dkt. Nos. 37, 38.) On January 20, 2023, Petitioner filed a Motion for Extension of Time to respond to Respondent's summary judgment motion. (Dkt. No. 42.) The undersigned then entered a Text Order staying all deadlines until the District Judge had resolved Petitioner's Motion to Amend the Court's Ruling on the Report and Recommendation. (Dkt. No. 43.)
On May 26, 2023, the District Judge vacated her prior Order, which adopted the undersigned's Report and Recommendation without objections, and substituted an Order adopting the Report and Recommendation on the merits. (Dkt. No. 48.) Respondent was instructed to file an Amended Return and Memorandum by June 30, 2023. (Dkt. No. 50.)
On June 8, 2023, Petitioner filed another Motion to Amend his Petition. (Dkt. No. 52.) The Court issued a Text Order on June 21, 2023 noting that Petitioner had made no new arguments or requests for relief in his most recent Motion to Amend and denying the Motion for the reasons set forth in the undersigned's November 16 Report and Recommendation. (Dkt. No. 54.)
On June 30, 2023, Respondent filed an Amended Return and Motion for Summary Judgment. (Dkt. Nos. 56, 57.) After requesting and receiving additional time to file his response, Petitioner responded to the summary judgment motion on September 25, 2023. (Dkt. No. 66.) Accordingly, the motion before the Court has been fully briefed and is ripe for habeas review.
LEGAL STANDARD
I. Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Rule 12, Rules Governing § 2254 Cases (stating courts may apply in habeas cases any of the Federal Rules of Civil Procedure to the extent they are not inconsistent with statutes or the § 2254 rules). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “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). In ruling on a motion for summary judgment, “the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.” The News & Observer Publ'g Co., 597 F.3d at 576 (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
II. Habeas Standard of Review
Habeas corpus in federal court exists to “guard against extreme malfunctions in the state criminal justice systems.” Harrington v. Richter, 562 U.S. 86, 102 (2011) (citation and internal quotation marks omitted). Federal habeas is neither an alternative to state-court relief nor an additional chance to appeal erroneous state-court rulings. See id. That preference for, and deference to, state courts is borne out in the various constraints placed on federal courts. See Shoop v. Hill, 139 S.Ct. 504, 506 (2019) (per curiam) (stating § 2254 “imposes important limitations on the power of federal courts to overturn the judgments of state courts in criminal cases”); see also Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (stating § 2254 “reflect[s] a presumption that state courts know and follow the law” (citation and internal quotation marks omitted)).
Since the Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320, 322-23 (1997); Breard v. Pruett, 134 F.3d 615, 618 (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); 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.” Williams, 529 U.S. at 410. “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.” Harrington, 562 U.S. at 86 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Federal courts must also defer to state courts' factual determinations, which are presumed correct until the prisoner rebuts that presumption with clear and convincing evidence. § 2254(e)(1).
In addition, before state prisoners may try to clear those high hurdles, two rules steer them to first pursue all relief available in the state courts. See § 2254(b)(1). The first, known as exhaustion of remedies, requires a prisoner to present his claims to the highest state court with jurisdiction to decide them. Stewart v. Warden of Lieber Corr. Inst., 701 F.Supp.2d 785, 790 (D.S.C. 2010). A federal court cannot grant a prisoner's habeas corpus petition until he exhausts his state-court remedies. § 2254(b)(1), (c). The second rule, called procedural default, comes into play when a prisoner failed to present a claim to the state courts at the appropriate time and has no means of doing so now. Stewart, 701 F.Supp.2d at 790. Federal courts may not consider a procedurally defaulted claim unless the prisoner shows either that he has cause for defaulting and that the alleged violation of federal law prejudiced him or that not addressing the claim would be a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). In considering whether Petitioner should receive habeas relief under these standards, the undersigned has carefully considered the record before the Court.
DISCUSSION
Respondent argues that the Petition should be dismissed because: (1) Ground One is not a cognizable claim for federal habeas relief; (2) Grounds Two through Five are procedurally defaulted; and (3) Ground Six lacks merit. (See generally Dkt. No. 56.) For the reasons set forth in greater detail below, the undersigned agrees with Respondent. The undersigned therefore RECOMMENDS that the pending Motion for Summary Judgment (Dkt. No. 57) be GRANTED.
At the outset, the undersigned notes that Petitioner requests counsel in his response to Respondent's summary judgment motion. (Dkt. No. 66.) Notwithstanding the fact that Petitioner has not formally moved for the Court to appoint counsel, Petitioner has no constitutional right to counsel in his federal habeas proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987) (no constitutional right to counsel beyond first appeal of right); United States v. Riley, 21 Fed.Appx. 139, 141-42 (4th Cir. 2001); Hunt v. Nuth, 57 F.3d 1327, 1340 (4th Cir.1995) (no constitutional right to counsel during federal habeas). The Court may, in its discretion, appoint counsel for a habeas petitioner when “the interests of justice so require.” 18 U.S.C.A. § 3006A(a)(2); see also Riley, 21 Fed.Appx. at 142. The interests of justice require the court to appoint counsel when the district court conducts an evidentiary hearing on the petition. See Hoggard v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994); Rule 8(c), Rules Governing Section 2254 Cases in the United States District Courts. The appointment of counsel is discretionary when no evidentiary hearing is necessary. See Hoggard, 29 F.3d at 471. In exercising its discretion, the court should consider the legal complexity of the case, the factual complexity of the case, and the petitioner's ability to investigate and present his claims, along with any other relevant factors. Id.; see also Battle v. Armontrout, 902 F.2d 701, 702 (8th Cir. 1990). Where the issues involved can be properly resolved on the basis of the state court record, a district court does not abuse its discretion in denying a request for court-appointed counsel. See Hoggard, 29 F.3d at 471. Here, there is no need for an evidentiary hearing because the case will be resolved on the basis of the state court record. Further, the interests of justice do not require the Court to appoint counsel in this instance. Petitioner's request is therefore denied. Also, to the extent Petitioner's response attempts to amend his grounds for relief, his attempt is futile. See Haggwood v. Magill, No. 5:15-cv-3271-RMG, 2016 WL 4149986, at *6 (D.S.C. Aug. 3, 2016) (explaining that “[a] plaintiff may not argue a new claim in response to a motion for summary judgment”); see also S. Walk at Broadlands Homeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013) (indicating parties cannot amend their complaints through briefing or oral advocacy); Gilmour v. Gates, 382 F.3d 1312, 1315 (11th Cir. 2004) (“A plaintiff may not amend her complaint through argument in a brief opposing summary judgment.”).
I. Ground One
Respondent argues that Petitioner's first ground for relief is not cognizable. (Dkt. No. 56 at 22.) As noted, Ground One of the Petition alleges that “Petitioner's right to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution was violated because he is actually innocent of the charges.” (Dkt. No. 1 at 6.) According to Respondent, claims of actual innocence have “not been recognized as cognizable when presented in a 28 U.S.C. § 2254 petition.” (Dkt. No. 56 at 22.) The undersigned agrees.
“Habeas petitioners may use an actual innocence claim to excuse the procedural default of a separate constitutional claim upon which they request habeas relief.” Buckner v. Polk, 453 F.3d 195, 199 (4th Cir. 2006) (citations omitted). However, “the Supreme Court has strongly suggested that claims of actual innocence standing alone do not serve as an independent basis for habeas relief: ‘Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.'” Id. (quoting Herrera v. Collins, 506 U.S. 390, 400 (1993)). Indeed, federal habeas relief is limited to claims involving a “violation of the Constitution or laws or treaties of the United States,” and an actual innocence claim does not raise this type of issue. 28 U.S.C. § 2254(a). Given that freestanding claims of actual innocence have not been specifically recognized by the Supreme Court, such claims cannot be considered cognizable for federal habeas relief. See McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) (“We have not resolved whether a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.”); see also Stukes v. Warden, Ridgeland Corr. Inst., No. 0:19-cv-03087-DCC, 2020 WL 4820251, at *4 (D.S.C. Aug. 19, 2020), appeal dismissed, 850 Fed.Appx. 193 (4th Cir. 2021); Canty v. Williams, No. 4:21-cv-0015-TLW-TER, 2021 WL 6773026, at *5 (D.S.C. July 28, 2021), adopted, 2022 WL 298142 (D.S.C. Feb. 1, 2022).
Even if Ground One could be considered cognizable, Petitioner cannot meet the strict requirements applicable to an actual innocence claim. The key to an actual innocence claim is the submission of “‘new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.'” Hayes v. Carver, 922 F.3d 212, 216 (4th Cir. 2019) (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). A petitioner must show that, “in light of all the evidence, old and new, it is more likely than not that no reasonable juror would have voted to find him guilty beyond a reasonable doubt.” Id. at 217 (citing Finch v. McKoy, 914 F.3d 292, 298-299 (4th Cir. 2019)); see also McQuiggin, 569 U.S. at 401 (stressing that this standard “is demanding”). Here, Petitioner has failed to present any new reliable evidence that was not presented in his state court proceedings, and which supports his innocence on the disputed criminal charges. (See generally Dkt. No. 66.) Indeed, the evidence Petitioner attempts to use to support his actual innocence claim falls far short of satisfying this demanding standard.
Although the record contains various materials that Petitioner claims constitute new reliable evidence, the materials have no bearing on Petitioner's guilt or innocence. For example, Petitioner references scientific articles discussing body decomposition, but these articles provide general information, not information pertaining to Petitioner's particular case. (See Dkt. No. 66.) Petitioner has also submitted a plethora of correspondence relating to his case. (See Dkt. Nos. 163, 16-4, 16-7, 16-9, 16-13, 16-14, 16-15, 16-16, 16-17, 16-19, 16-20.) However, this correspondence merely reflects Petitioner's attempts to obtain information related to his case and to elicit assistance from innocence projects, counsel, and a private investigator; none of the correspondence demonstrates the existence of new reliable evidence. See Hayes, 922 F.3d at 216. Similarly, Petitioner provides copies of mailings and state court filings that reflect his attempts at judicial review but do not establish the existence of new reliable evidence. (Dkt. Nos. 16-10, 1611, 16-12, 16-18, 66-3.)
The record also contains materials that Petitioner claims evidence prosecutorial misconduct and the State's withholding of exculpatory evidence (i.e., a motion to compel filed by Petitioner and a report to the South Carolina Office of Disciplinary Counsel). (Dkt. Nos. 16-6, 66, 66-3.) Again, these materials do not establish the existence of new reliable evidence. Rather, the materials show that Petitioner mailed documents and requested information-they do not show that the documents he mailed contained information pertaining to Petitioner's innocence or attorney misconduct, nor do they affirm that the information Petitioner requested in his motion to compel does, in fact, exist. (See generally Dkt. No. 16-6, 66, 66-3.) Based on the record before the Court, Petitioner has provided no proof that exculpatory evidence exists, or that prosecutorial misconduct occurred in his case. (See generally Dkt. Nos. 66, 66-3.)
Ultimately, Petitioner's arguments of actual innocence rely primarily on his own conclusory assertions and unsubstantiated theories, (see generally Dkt. Nos. 1, 66), and the materials he has provided as support do little to bolster his claims. (See Dkt. Nos. 16-3, 16-4, 167, 16-9, 16-10, 16-11, 16-12, 16-13, 16-14, 16-15, 16-16, 16-17, 16-19, 16-20, 66, 66-3.) In fact, Petitioner concedes that the bulk of his “newly discovered evidence” was available at the time of trial and was known to defense counsel, and he fails to provide proof that the remaining “newly discovered evidence” actually exists. (See generally Dkt. Nos. 1, 11, 16, 66, 66-3.)
In sum, Petitioner's first ground for relief-claiming that he is actually innocent of murder-is not cognizable and, even if it was, Petitioner has failed to show that new reliable evidence of innocence exists such that he could prove a freestanding actual innocence claim. See Hayes, 922 F.3d at 217 (where “none of [the] evidence contradicts, or even undermines, the essential testimony of the identifying witnesses or the State's other evidence,” the petitioner does not meet the stringent standard for establishing actual innocence). The undersigned therefore RECOMMENDS that Respondent is entitled to summary judgment on this claim.
II. Grounds Two, Three, Four, and Five
Turning to Grounds Two through Five of the Petition, Respondent asserts that these grounds for relief are all procedurally defaulted. (Dkt. No. 56 at 25-27.) Although briefly described above, the undersigned finds a more in-depth summary of the doctrine of procedural default instructive here. Courts often use the word “exhaustion” when defining “procedural default,” but under the law the doctrine of procedural default is separate from the exhaustion requirement in the habeas context. As to exhaustion, 28 U.S.C. § 2254(b)(1) requires that a petitioner exhaust his remedies in state court before a habeas petition may be granted. “In order to exhaust his collateral claims in state court, a South Carolina habeas corpus petitioner must pursue a direct appeal and/or file an application for relief under the South Carolina Post Conviction Procedure Act, SC Code Ann. §§ 17-27-10-160.” Chronister v. South Carolina, No. 2:08-cv-3194-HMH-RSC, 2009 WL 1444507, at *9 (D.S.C. May 20, 2009). In addition to fully pursuing the remedies available in state court, a petitioner must also have previously presented to the state courts the individual claims he wishes the federal court to review in the habeas action. If he has not properly presented the claim to a state court for adjudication, it is deemed procedurally defaulted. A claim is deemed procedurally defaulted if a state court has rejected it based on an independent and adequate state procedural rule. See Coleman, 501 U.S. at 729 (“The [independent and adequate state ground] doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.”). But also, “[i]f claims were not exhausted in state court but would now be procedurally barred if brought in state court, then federal courts can treat the claims as if they were procedurally defaulted in the state courts.” Clagett v. Angelone, 209 F.3d 370, 378 (4th Cir. 2000).
In Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004), the Fourth Circuit explained the policy behind the procedural default doctrine and also described what it means for a claim to have been properly presented to the state court:
[The] exhaustion requirement “reduces friction between the state and federal court systems by avoiding the unseem[liness] of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (internal quotation marks and citation omitted). Thus, “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.” Id. at 845. And 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)). In other words, 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).Longworth, 377 F.3d at 448.
To overcome procedural default and have a claim considered by the federal habeas court, a petitioner must “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. Here, Petitioner did not properly raise Grounds Two, Three, Four, and Five in state court, and he cannot show cause and prejudice, or that failure to consider these grounds for relief will result in a fundamental miscarriage of justice.
First, the record shows that Petitioner's state court actions brought claims relating to ineffective assistance of counsel, unfair trial, Due Process violations, and prosecutorial misconduct. (Dkt. No. 12-5 at 167-75; Dkt. No. 12-6 at 3-6.) However, Petitioner effectively exhausted only a narrow portion of these claims. (Dkt. No. 12-6 at 40-54.) Specifically, Petitioner exhausted his claim that his counsel was ineffective in failing to request or note the omission of an inference of malice instruction under state law, as well as his Due Process claim that the trial court erred in admitting certain of his statements to law enforcement. (Id. at 40-54.) The remainder of Petitioner's ineffective assistance of counsel and Due Process violation claims (Grounds Two and Three) are procedurally defaulted because Petitioner has used up his direct appeal and PCR action, and therefore has no further means of getting the state courts to hear his claims. See Stewart, 701 F.Supp.2d at 790-91 (stating federal habeas court may rely on state rules to find claims procedurally defaulted if those rules clearly apply).
Further, Petitioner fails to articulate cause and prejudice for his procedural default, or to explain how this Court's failure to consider his claims would result in a fundamental miscarriage of justice. See id. at 750 (“In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.”).
Though Petitioner proffers reasons that this Court should excuse his procedural default, his reasons are unconvincing and unsupported. (See generally Dkt. No. 66.) For example, Petitioner claims that the Court should excuse the procedural default of his claims on account of ineffective assistance of his PCR counsel. (Dkt. Nos. 1, 66.) However, as Respondent correctly notes, Petitioner cannot meet the exacting standards required for this Court to excuse Petitioner's procedural default on this basis.
Pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Martinez, 566 U.S. at 9. To establish that PCR counsel provided ineffective assistance of counsel, a petitioner must show that: (1) his counsel's performance “fell below an objective standard of reasonableness”; and (2) he was prejudiced by his counsel's performance. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). There is “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. To establish prejudice, a petitioner must demonstrate a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. In this instance, Petitioner fails to offer any evidence or point to anything in the record to overcome the presumption that PCR counsel provided reasonable professional assistance. (See generally Dkt. No. 66) Indeed, Petitioner's claims pertaining to ineffective assistance of his PCR counsel are wholly unsupported, and Petitioner's bare assertions simply cannot satisfy Martinez.
To the extent Petitioner claims that the procedural default of his claims should be excused because he is actually innocent, this argument fails for the reasons set forth in Section I above. Similarly, Petitioner's contentions that any procedural default should be excused because of “newly discovered evidence” is unconvincing. (See generally Dkt. No. 66.) As is described more thoroughly supra, Petitioner has failed to show that any “newly discovered evidence” sufficient to establish cause and prejudice actually exists here. (See supra at 10-13.) Based on the foregoing, Petitioner cannot overcome his procedural default, and his procedurally defaulted claims should therefore be dismissed.
As for the narrow portion of Ground Two that Petitioner did raise in state court, the state court considered this issue and determined that it lacked merit. Again, the only exhausted portion of Petitioner's ineffective assistance of counsel claims is the portion reiterated in Ground Six of the Petition-whether Petitioner was denied the right to effective assistance of counsel where his trial counsel did not object to the trial court's failure to include a permissive inference jury instruction in its jury instruction on inferred malice. The state court appropriately considered this issue and found that Petitioner failed to meet his burden to show that his counsel was ineffective for this reason, as is set forth in greater detail in Section III below.
Petitioner's Ground Three claims regarding the allegedly improper admission of evidence also do not warrant relief. Indeed, Petitioner's allegations cannot constitute a cognizable, freestanding habeas claim. (See generally Dkt. No. 66); see also Engle v. Isaac, 456 U.S. 107, 121 n. 21 (1982) (“We have long recognized that a ‘mere error of state law' is not a denial of due process” and to allow such claim would convert every such decision into a “‘federal constitutional question.'”). As such, Grounds Two and Three should be dismissed in their entirety.
In sum, most of the claims in Grounds Two and Three are procedurally defaulted, and the portions that are not procedurally defaulted lack merit or are not cognizable. Grounds Four and Five were never properly raised in state court and are therefore procedurally barred. As such, Grounds Two through Five of the Petition should be dismissed.
III. Ground Six
As for Ground Six, it is undisputed that this claim is preserved for review and not procedurally defaulted. (See generally Dkt. Nos. 57, 66.) Respondent instead argues that this ground for relief lacks merit. (Dkt. No. 56 at 27-32.) In Ground Six, Petitioner alleges that he was denied the right to effective assistance of trial counsel where counsel “did not object to the trial court's failure to include the permissive inference jury instructions in its jury instruction on inferred malice.” (Dkt. No. 1 at 29.) Petitioner claims he was prejudiced by his trial counsel's alleged error. (Id.)
Under the Sixth Amendment, Petitioner, as a criminal defendant, had a right to effective assistance of counsel. Strickland, 466 U.S. at 686. As noted, Petitioner may prove ineffective assistance of counsel by showing that his attorney's performance was deficient, and that such deficiency prejudiced him. Id. at 687. An attorney's performance is deficient if it was unreasonable under the circumstances of the case and under then-prevailing professional norms. Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). Prejudice is a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable probability” means “a probability sufficient to undermine confidence in the outcome.” Kimmelman, 477 U.S. at 384.
Strickland is highly deferential to counsel, and § 2254(d) is highly deferential to state courts. Harrington, 562 U.S. at 105. That means when a state court has adjudicated an ineffective assistance claim on the merits, this Court's review is “doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). In other words, the question becomes “not whether counsel's actions were reasonable,” but “whether there is any reasonable argument that [Petitioner's] counsel satisfied Strickland's deferential standard.” Harrington, 562 U.S. at 105.
Subsection 2254(d)'s standards are to be applied to the decision from the highest state court to decide the claim at issue on the merits. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). When the highest state court rules summarily, the federal habeas court should “look through” that unexplained decision to the last state-court decision that provides a relevant rationale, and “should then presume that the unexplained decision adopted the same reasoning.” Id. In this case, the PCR court was the only state court to issue a reasoned decision on Petitioner's claim. As such, the undersigned considers the PCR court's reasoning in analyzing Petitioner's sixth ground for relief.
Here, the PCR court considered Petitioner's allegations of ineffective assistance of counsel. In doing so, the state court explained:
Applicant's claim that Counsel was ineffective for failing to request or otherwise object to the omission of the general permissive inference of malice instruction. In
State v. Elmore, 279 S.C. 417, 803 S.E.2d 781 (1983), overruled on other grounds by State v. Torrence, 305 S.C. 45, 69 n. 5, 406 S.E.2d 315, 328 n. 5 (1991), the South Carolina Supreme Court held that the trial court's instruction on malice as it related to the use of a deadly weapon constituted a mandatory presumption, and set forth a jury charge consistent with the Due Process Clause for trial courts to utilize in the future:
The law says if one intentionally kills another with a deadly weapon, the implication of malice may arise. If facts are proved beyond a reasonable doubt, sufficient to raise an inference of malice to your satisfaction, this inference would simply [be] an evidentiary fact to be taken into consideration by you, the jury, along with other evidence in the case, and you may give it such weight as you determine it should receive.
Elmore, 279 S.C. at 421, 308 S.E.2d at 784. The Elmore Court firmly advised the bench “that hereafter only slight deviations from this charge will be tolerated.” Id.
The South Carolina Supreme Court returned to the inference of malice from the use of a deadly weapon more than 25 years later in State v. Belcher and held that the first sentence of the above charge could not be instructed to juries where the record contained evidence to reduce, excuse, mitigate, or justify a homicide or assault and battery with intent to kill. 385 S.C. 597, 685 S.E.2d 802 (2009). The South Carolina Supreme Court distinguished the remainder of the charge as the “general permissive inference instruction,” and noted that it remained valid. Id., 385 S.C. at 612, n. 9, 685 S.E.2d at 810, n. 9.
A few years later, in Gibson v. State, the South Carolina Supreme Court reversed a denial of post-conviction relief where the trial court charged the inference of malice from the use of a deadly weapon but failed to include the remainder of the Elmore charge. 41 6 S.C. 260, 785 S.E.2d 121 (2016). Gibson was decided in simple fashion, without briefing or oral arguments, based on the very reasonable observation that total omission of the general permissive inference language was no “slight deviation” from the Elmore charge, in clear disregard for Elmore's admonition.
At the trial at issue, Applicant secured jury instructions for self-defense and voluntary manslaughter after evidence was presented that the victim, consumed by a meth-fueled rage, attacked Applicant with a knife and kicked his pregnant wife in the stomach. (R. 895-97; R. 955-64). The inference of malice from the use of a deadly weapon was not charged. As to inferred malice, the trial court only instructed the jury that “[m]alice may be inferred from conduct showing a total disregard for human life based on the totality of the circumstances shown to have existed.” (R. 954-55).
At the evidentiary hearing, Counsel testified that the trial court did not charge the jury on the inference of malice from the use of a deadly weapon. Counsel acknowledged that Elmore requires the permissive inference instruction in certain circumstances, and that Belcher held it was error to charge the inference of malice from the use of a deadly weapon in most circumstances.
Respondent argued that it was not necessary for the trial court to give Elmore's general permissive inference instruction. Respondent asserted that the general permissive inference of malice portion of Elmore was only necessary and required as part of a complete instruction on the inference of malice from the use of a deadly weapon, and there was no requirement to charge the language in a standalone fashion. Respondent provided the Court a copy of State v. Cottrell, 421 S.C. 622, 809 S.E.2d 423 (2017), as well as a two page excerpt (Cottrell Tr. 2702-03) from the transcript of that trial reflecting the malice charge in that case, which was not quoted in the South Carolina Supreme Court opinion. Citing to the charge in Cottrell, Respondent noted the South Carolina Supreme Court had approved of the total exclusion of the Elmore instruction in that case, and rejected Cottrell's argument that the trial court had an obligation after Belcher to affirmatively instruct juries not to infer malice from the use of a deadly weapon. Cottrell, 421 S.C. at 643-44, 809 S.E.2d at 434-35. Finally, Respondent noted that Applicant's trial was prior to Gibson, the case relied upon by Applicant as part of his argument for relief, and that Gibson did not stand for the proposition that the general permissive inference instruction must be given in every case involving malice aforethought.
The court agrees with Respondent. There is no obligation under our current jurisprudence, let alone that in effect at the time of trial, to charge the general permissive inference of malice instruction where, consistent with Belcher, there is no charge on the implication of malice from the use of a deadly weapon. The language of the Elmore charge is specifically tailored to deal with the perceived and real dangers in instructing the jury that inference may be inferred from the use of a deadly weapon, and represents a solution to the then-recurring problem of jury instructions which provided for burden-shifting presumptions in violation of the United States Constitution. The second part of the Elmore charge serves as a cautionary restraint on the first part, and is of little instructional value standing alone. Standing alone, the instruction demanded would be confusing. Respondent's provision of the Cottrell charge is well taken, as the relevant portion is not meaningfully distinguishable from the charge at issue, and met with the satisfaction of the South Carolina Supreme Court. Furthermore, even if the South Carolina Supreme Court subsequently holds that the general permissive inference instruction was required in every case involving malice aforethought, the absence of any clear precedent to that effect at this time and at the time of trial provides that Counsel could not have possibly known to demand the language, or object to its exclusion. For all of these reasons, Applicant cannot show any deficiency on the part of Counsel by way of this allegation.(Dkt. No. 12-6 at 50-53.)
The PCR court continued on to explain that Petitioner could not show that he was prejudiced, even if his counsel was deficient. Specifically, the PCR court stated:
As to prejudice, even if the charge were required, the court cannot conceive of how Applicant was prejudiced by the absence of the general permissive inference instruction. In the absence of the implication of malice from the use of a deadly weapon, the instruction demanded says little more than what is already instructed to the jury: that they may use evidence and give it such weight as they determine it should receive. See, e.g. (R. 946-47). The court finds there is no reasonable probability the outcome of trial would have been different if only Counsel had requested, and the trial court had charged [the] jury with a naked general permissive inference instruction.(Id. at 53.)
Based on the above, the PCR court aptly considered Petitioner's claims relating to the alleged ineffective assistance of his trial counsel, provided an accurate interpretation of the facts in the record, and reasonably applied the law to those facts. (Id. at 50-53.) The PCR court considered whether Petitioner's counsel was ineffective for failing to object to the omission of the general permissive inference of malice instruction, and determined that counsel appropriately concluded that an objection was not necessary because there is no obligation to charge the general permissive inference of malice instruction where there is no charge on the implication of malice from the use of a deadly weapon, as was the case here. (Id.) Further, the PCR court determined that, even if Petitioner's counsel had erred, Petitioner had failed to show that he was prejudiced by any such error because “[i]n the absence of the implication of malice from the use of a deadly weapon, the instruction demanded says little more than what is already instructed to the jury: that they may use evidence and give it such weight as they determine it should receive.” (Id.) Thus, the PCR court concluded that Petitioner could not show that his counsel's performance was deficient, nor that he was prejudiced. See Strickland, 466 U.S. at 687.
Keeping in mind that this Court's review of a state court's adjudication of the merits of an ineffective assistance claim is “doubly deferential,” Knowles, 556 U.S. at 123, the undersigned finds no error in the PCR court's evaluation of the merits of the allegations set forth in Petitioner's sixth ground for relief. Moreover, Petitioner has submitted no meaningful argument as to how the PCR court's determination of this issue qualifies as legally or factually unreasonable, and such failure precludes relief in this Court. (See generally Dkt. Nos. 1, 66.) In the absence of any evidence (let alone clear and convincing evidence) lending to a contrary result, this Court must presume the PCR court's findings are correct. 28 U.S.C. § 2254(e)(1). The undersigned therefore recommends that Respondent's Motion for Summary Judgment (Dkt. No. 57) be granted, and that the Petition be dismissed.
Certificate of Appealability
If the Respondent's summary judgment motion is granted, the District Judge will need to decide whether to issue a certificate of appealability. See Rule 11(a), Rules Governing § 2254 Cases. A certificate may be issued only upon a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a petitioner's constitutional claims have been denied on the merits, the petitioner must demonstrate that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citation and quotation marks omitted). The undersigned sees no reason to grant a certificate of appealability and would, therefore, recommend denying the certificate of appealability.
CONCLUSION
Based on the foregoing, the undersigned RECOMMENDS that the Court GRANT Respondent's Amended Motion for Summary Judgment (Dkt. No. 57). The undersigned further RECOMMENDS that the Court DISMISS this case with prejudice and DECLINE to issue a certificate of appealability.
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
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).