Opinion
C. A. 20-717-TMC-PJG
11-16-2020
Ryan Deleston, Petitioner, v. Warden Nelsen, Respondent.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE
Petitioner Ryan Deleston, a self-represented state prisoner, filed a 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 Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Respondent's motion for summary judgment. (ECF No. 56.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. (ECF No. 57.) Petitioner filed a response in opposition (ECF No. 61), Respondent replied (ECF No. 62), and Petitioner filed a sur-reply (ECF No. 64). Having carefully considered the parties' submissions and the record in this case, the court finds that Respondent's motion should be granted and the Petition denied.
The Local Rules make no provision for sur-replies and Petitioner did not seek leave of the court to file a sur-reply. Accordingly, Petitioner's sur-reply was not considered in the court's recommendation and is hereby stricken from the record. However, consideration of Petitioner's sur-reply would not have changed the court's recommendation.
BACKGROUND
A Charleston County Grand Jury indicted Petitioner in the October 2012 term for murder (2012-GS-10-6361), attempted armed robbery (2012-GS-10-6362), and possession of a weapon during the commission of a violent crime (2012-GS-10-6364). (App. at 1167-70, ECF No. 39-3 at 169-72.) In addition, Petitioner was indicted in December 2012 for possession of a handgun with an obliterated serial number (2012-GS-10-6363). (App. at 1171, ECF No. 39-3 at 173.) On October 7, 2013, Petitioner proceeded to trial before The Honorable Kristi Lea Harrington. (App. at 1, ECF No. 39-1 at 3.) Petitioner was represented at trial by D. Ashley Pennington and John J. Kozelski, Esquires. (App. at 2, ECF No. 39-1 at 4.) A jury convicted Petitioner of all charges on October 11, 2013, and Judge Harrington sentenced Petitioner to life for the murder charge, twenty years for attempted robbery, and five years for possession of a handgun with an obliterated serial number. (App. at 1142, 1164, ECF No. 39-3 at 144, 166.)
Trial counsel filed a timely notice of appeal (ECF No. 39-4) and, on July 27, 2015, appellate defenders Robert M. Dudek and Lara M. Caudy filed an appellate brief on Petitioner's behalf, presenting two issues:
Whether the court erred by refusing to allow Appellant to cross-examine witnesses about an armed robbery and shooting that occurred approximately two weeks before the murder where it was undisputed that Bryan Rivers was the shooter in the prior robbery and that the same firearm was used in both cases, since this prevented Appellant from fully developing and presenting his defense at trial, namely that Bryan Rivers was the shooter who killed the decedent, Marley Lion, and that Appellant was merely present at the scene, in violation of Rule 404(b), SCRE, the rule on third party guilt, and Appellant's due process right to present a defense?
Whether the court erred by informing the jury during the court's opening instruction that a trial was “a search for the truth in an effort to make sure that justice is done” since this instruction was fundamentally incorrect, was burden shifting, and decimated the proper standard and jury inquiry of whether the state had proved Appellant's guilt beyond a reasonable doubt?(ECF No. 39-5 at 4.) On February 10, 2016, following full briefing and oral argument, the South Carolina Court of Appeals affirmed Petitioner's convictions and sentence. See State v. Deleston, 2016-UP-055 (S.C. Ct. App. Feb. 10, 2016) (per curiam) (ECF No. 39-7). On February 26, 2016, Petitioner filed a petition for rehearing, which the court denied on April 21, 2016. (ECF Nos. 398, 39-9.)
Petitioner timely filed a petition for a writ of certiorari in the South Carolina Supreme Court. (ECF No. 39-12.) The court granted certiorari, ordered briefing, and heard oral argument. (ECF Nos. 39-13, 39-14.) On July 19, 2017, the South Carolina Supreme Court dismissed certiorari as improvidently granted. (ECF No. 39-15.)
On September 5, 2017, Petitioner filed a pro se application for post-conviction relief (“PCR”), asserting two grounds for relief:
Issue (A)
Was counsel ineffective for failing to object to the trial court's express malice instruction that impermissibly commented on the facts of the case by using hypothetical examples of the facts of applicant's case that prematurely directed a verdict for the State?
Issue (B)
Was counsel ineffective for failing to object to the trial court's voluntary intoxication instruction that relieved the State of proving the mental state required to establish criminal intent beyond a reasonable doubt?(App. at 1179-97, ECF No. 39-3 at 181-99.) The State filed a return (App. at 1198-203, ECF No. 39-3 at 200-05) and an amended return (App. at 1205-49, ECF No. 39-3 at 207-51). On May 24, 2018, The Honorable Roger M. Young held an evidentiary hearing on the matter. (App. at 12511309, ECF No. 39-3 at 253-311.) Petitioner was represented at the hearing by attorney Christopher Murphy and the court heard testimony from Petitioner, his trial counsel, and trial counsel for the State. (App. at 1251-52, ECF No. 39-3 at 253-54.) At the hearing, Petitioner asserted the following additional grounds:
1. Counsel was ineffective in failing to request a lesser included offense or relay any deals or plea offers for lesser included offenses.
2. Counsel did not advise the Applicant on not taking the witness stand.
3. Counsel did not cross-examine witnesses.
4. Counsel did not recall Bryan Rivers and cross-examine him on the Chopper shooting when the State opened the door by presenting the Deleston statement.(App. at 1313-14, ECF No. 39-3 at 315-16) (as summarized in the PCR court's order of dismissal). The PCR court dismissed Petitioner's application on July 25, 2018. (App. at 1310-54, ECF No. 39-3 at 312-56.) Petitioner did not move to alter or amend the PCR court's order.
The final eight pages of the PCR court's order were omitted from the record, but can be found as an attachment to Respondent's return. (See ECF No. 39-17 at 45-53.)
On May 13, 2019, through appellate defender Katherine H. Hudgins, Petitioner filed a petition for a writ of certiorari in the Supreme Court of South Carolina. (ECF No. 39-18.) Petitioner presented the following issues:
1. Did the PCR judge err in refusing to find trial counsel ineffective for failing to object to a jury instruction that was an improper charge on the facts?
2. Did the PCR judge err in refusing to find counsel ineffective for failing to argue that, by introducing Petitioner's statement to police that he heard codefendant Bryan Rivers shot a drug dealer named “Chopper” with the same gun used to shoot Marty Lion, the State opened the door to allowing the defense to question Rivers about the “Chopper” shooting?(ECF No. 39-18 at 3.) The State filed its return on October 1, 2019. (ECF No. 39-19.) On December 11, 2019, the Supreme Court of South Carolina denied certiorari. (ECF No. 39-21.) The remittitur issued on December 30, 2019, and was filed with the Charleston County Clerk of Court on January 2, 2020. (ECF No. 39-20.)
Petitioner brought this federal habeas matter on February 13, 2020, along with a motion to stay these proceedings while he pursued further relief in state court. (ECF Nos. 1, 6.) On April 27, 2020, Petitioner filed a motion to amend his petition. (ECF No. 20.) On June 23, 2020, the court denied both motions, but granted Petitioner fourteen days to refile his motion to amend. (ECF No. 37.) On July 7, 2020, Petitioner filed his second motion to amend the petition, which the court granted on August 25, 2020 (ECF No. 50), making the amended petition (ECF No. 52) the operative petition in this matter.
FEDERAL HABEAS ISSUES
The Amended Petition raises the following issues, quoted verbatim:
Ground One: Counsel failed to object to erroneous malice instruction
Supporting Facts: Trial court malice instruction shifted burden and was an impermissible inference when it instructed jury “malice can be inferred from use of a deadly weapon” and in this instance where defense attempted to raise third-party guilt this inference can not be applied to defendant if someone else committed crime or knew the crime was going to occur.
Ground Two: Counsel was ineffective for failure to object
Supporting Facts: Counsel was ineffective by failing to object to the erroneous accomplice liability instruction which shifted the burden to defendant to prove he had no knowledge of confederate's actions.
Counsel was ineffective for not objecting to the voluntary intoxication defense.
Ground Three: Counsel committed error by admitting defendant guilt during closing argument
Supporting Facts: During trial Petitioner had continuously maintained his innocence of this crime and when counsel during closing arguments admitted guilt was a violation of my rights and counsel actions deprived me of this.
Ground Four: Trial court committed error by refusing cross-examination of two witnesses about prior incident
Supporting Facts: Evidence of prior incident was admitted by prosecution of this prior incident which would establish third-party guilt defense. The appellate conclusion applied facts to this issue which was not consistent with the law and the court failure to allow cross-examination violated Petitioner constitutional rights to present a defense.(Am. Pet., ECF No. 52 at 5-10.)
DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). 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). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the nonmoving party is to be believed and all justifiable inferences must be drawn in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 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(c), (e); Celotex Corp., 477 U.S. at 322. Further, while the federal court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Habeas Corpus Standard of Review
In accordance with the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), claims adjudicated on the merits in a state court proceeding cannot be a basis for federal habeas corpus relief unless the decision was “contrary to, or involved an unreasonable application of clearly established federal law as decided by the Supreme Court of the United States, ” or the decision “was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d)(1), (2). When reviewing a state court's application of federal law, “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, 410 (2000); see also White v. Woodall, 572 U.S. 415, 419 (2014) (describing an “unreasonable application” as “objectively unreasonable, not merely wrong” and that “even clear error will not suffice”) (internal quotation marks and citation omitted); Harrington v. Richter, 562 U.S. 86, 100 (2011); Humphries v. Ozmint, 397 F.3d 206 (4th Cir. 2005); McHone v. Polk, 392 F.3d 691 (4th Cir. 2004). 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).
“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 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also White, 572 U.S. at 419-20 (stating that “ ‘[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement' ”) (alteration in original) (quoting Harrington, 562 U.S. at 103). Under the AEDPA, a state court's decision “must be granted a deference and latitude that are not in operation” when the case is being considered on direct review. Harrington, 562 U.S. at 101. Moreover, review of a state court decision under the AEDPA standard does not require an opinion from the state court explaining its reasoning. See id. at 98 (finding that “[t]here is no text in [§ 2254] requiring a statement of reasons” by the state court). If no explanation accompanies the state court's decision, a federal habeas petitioner must show that there was no reasonable basis for the state court to deny relief. Id. Pursuant to § 2254(d), a federal habeas court must (1) determine what arguments or theories supported or could have supported the state court's decision; and then (2) ask whether it is possible that fairminded jurists could disagree that those arguments or theories are inconsistent with the holding of a prior decision of the United States Supreme Court. Id. at 102. “If this standard is difficult to meet, that is because it was meant to be.” Id. Section 2254(d) codifies the view that habeas corpus is a “ ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Id. at 102-03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)).
C. Exhaustion Requirements
A habeas corpus petitioner may obtain relief in federal court only after he has exhausted his state court remedies. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must present his claims 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); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454, 454 (S.C. 1990) (holding that “when the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies.”). To exhaust his available state court remedies, a petitioner must “fairly present[] to the state court both the operative facts and the controlling legal principles associated with each claim.” Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (internal quotation marks and citation omitted). Thus, a federal court may consider only those issues which have been properly presented to the state appellate courts with jurisdiction to decide them. Generally, a federal habeas court should not review the merits of claims that would be found to be procedurally defaulted (or barred) under independent and adequate state procedural rules. Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008); Longworth, 377 F.3d 437; see also Coleman v. Thompson, 501 U.S. 722 (1991). For a procedurally defaulted claim to be properly considered by a federal habeas court, the 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.
D. Respondent's Motion for Summary Judgment
1. Ground One-Malice Charge
At trial, the judge instructed the jury:
The Defendant is charged with murder. The State must prove beyond a reasonable doubt that the Defendant killed another person with malice aforethought. Malice is hatred, ill-will, or hostility towards another person. It is the intentional doing of a wrongful act without just cause or excuse and with an intent to inflict injury under circumstances that the law will incur an evil intent.
Malice aforethought does [not] require that malice exists for any particular time before the act is committed, but malice must exist in the mind of the Defendant just before and at the time the act is committed; therefore, there must be a combination of the previous evil intent and the act. Malice aforethought may be expressed or inferred. These terms, “expressed” and “inferred, ” do not mean different types of malice, but merely the manner in which malice may be shown; that is, either by direct evidence or by inference from the facts which are proved. Expressed malice is shown when a person speaks words or which - - words which express hatred or ill-will of another person or when the person prepared beforehand to do the act which was later accomplished. For example, lying in wait for a person or any other acts of preparation going to show that the deed was within the Defendant's mind would be expressed malice.
Malice may be inferred from conduct showing a total disregard for human life. Inferred malice may also arrive when the deed - - may arise when the deed is done with a deadly weapon. A deadly weapon is any article, instrument, or substance which is likely to cause death or great bodily harm .... If one intentionally kills another during the commission of a felony, the inference of malice may arise.... If facts are proved beyond a reasonable doubt sufficient to raise an inference of malice to your satisfaction, this inference simply would be an evidentiary fact to be taken into consideration by you, along with all other evidence in this case, and you may give it the weight that you think that it should receive.
I charge you that attempted armed robbery is a felony under South Carolina law.(App. at 1131-33, ECF No. 39-3 at 133-35.)
In Ground One, Petitioner alleges his trial counsel was ineffective for failing to object to this instruction. (Am. Pet., ECF No. 52 at 5.) As supporting facts, Petitioner states the trial court's instruction that “malice can be inferred from use of a deadly weapon” impermissibly shifted the burden. Id. Respondent argues this ground is defaulted because, while Petitioner challenged the trial court's charge on express malice during the PCR proceedings, he did not challenge, and the PCR court did not consider, the trial court's charge on inferred malice. (Respt.'s Mem. Supp. Summ. J., ECF No. 54 at 12.) In response, Petitioner shifts his focus to the trial court's express malice instruction on “lying in wait” and the PCR court's ruling on that issue. (See Petr.'s Resp. Opp'n Summ. J., ECF No. 61 at 2.)
To the extent Ground One concerns trial counsel's failure to object to the trial court's inferred malice instruction, that claim was not presented to the state courts, is procedurally defaulted, and Petitioner has not shown cause for that default. Moreover, trial counsel did, in fact, oppose inclusion of the deadly weapon inferred malice charge. (See App. at 1053-54, ECF No. 39-3 at 55-56) (trial counsel expressing concern that charging the jury on inferred malice from both use of a deadly weapon and killing during the commission of a felony would lead to a presumption of malice). Accordingly, the court recommends granting Respondent's motion for summary judgment as to that claim.
If Petitioner intended to raise trial counsel's failure to object to the trial court's charge on express malice, he failed to present that claim in his Amended Petition. Generally, a party cannot change his theory of the case or raise additional claims in response to a motion for summary judgment. See Barclay White Skanska, Inc. v. Battele Mem'l Inst., 262 Fed.Appx. 556, 563 (4th Cir. 2008) (“A plaintiff may not amend her complaint through argument in a brief opposing summary judgment.”) (quoting Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004)).
In addition, Petitioner fails to show any legal or factual error in the state court's decision. A defendant has a constitutional right to the effective assistance of counsel. To demonstrate ineffective assistance of counsel, a petitioner must show, pursuant to the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), that (1) his counsel was deficient in his representation and (2) he was prejudiced as a result. Id. at 687; see also Williams v. Taylor, 529 U.S. 362, 391 (2000) (stating that “the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims”). To satisfy the first prong of Strickland, a petitioner must show that trial counsel's errors were so serious that his performance was below the objective standard of reasonableness guaranteed by the Sixth Amendment to the United States Constitution. With regard to the second prong of Strickland, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
The United States Supreme Court has cautioned federal habeas courts to “guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d).” Harrington, 562 U.S. at 105. The Court observed that while “ ‘[s]urmounting Strickland's high bar is never an easy task[, ]' . . . [establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult.” Id. (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). The Court instructed that the standards created under Strickland and § 2254(d) are both “ ‘highly deferential,' and when the two apply in tandem, review is ‘doubly' so.” Id. (citations omitted). Thus, when a federal habeas court reviews a state court's determination regarding an ineffective assistance of counsel claim, “[t]he question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id.
The Supreme Court has held that a decision containing a reasoned explanation is not required from the state court. As stated above, if no explanation accompanies the state court's decision, a federal habeas petitioner must show that there was no reasonable basis for the state court to deny relief. In the case at bar, this court has the benefit of the PCR court's written opinion, certiorari review of which was denied by the Supreme Court of South Carolina, which may provide reasons or theories that the appellate court could have relied upon in summarily denying Petitioner's petition. See Wilson v. Sellers, 138 S.Ct. 1188, 1194-97 (2018) (holding that a federal habeas court should “look through” the unexplained decision to the last related state court decision that provides a relevant rationale, and presume that the unexplained decision adopted the same reasoning, unless the State can rebut the presumption). Therefore, the court turns to the question whether the PCR court's order unreasonably misapplied federal law or was based on an unreasonable determination of the facts. Having reviewed the PCR court's order pursuant to the § 2254 standard, the court finds for the reasons that follow that the state court did not unreasonably misapply the Strickland test in determining that no Sixth Amendment violation occurred.
Citing the above ineffective-assistance-of-counsel standard, the PCR court found trial counsel's performance reasonable. (App. at 1314-19, ECF No. 39-3 at 316-21.) The PCR court reasoned there was no binding caselaw suggesting the charge was improper and noted trial counsel testified he reviewed the charge at the time and did not object. (App. at 1317, ECF No. 39-3 at 319.) The PCR court also cited two South Carolina Supreme Court cases seemingly approving of similar instructions. (App. at 1317-18, ECF No. 39-3 at 319-20) (citing State v. Kelsey, 502 S.E.2d 63, 77 (S.C. 1998); State v. Hardin, 103 S.E. 557, 558 (S.C. 1920), overruled by State v. Belcher, 685 S.E.2d 802 (S.C. 2009)).
Petitioner contends “[t]here is merit to allegation that trial court charge was a comment on the evidence which was clearly established at time of Petitioner's trial” and that “this issue should only hinge on why counsel failed to object to trial court comment on the evidence, when federal/state law already existed on this issue.” (Petr.'s Resp.Opp'n Summ. J., ECF No. 61 at 3.) However, Petitioner does not cite any then-existing federal or state law clearly holding a similar express malice charge improper. Accordingly, Petitioner fails to show any error in the state court's judgment and the court recommends granting Respondent's motion for summary judgement as to Ground One.
2. Ground Two-Accomplice Liability & Voluntary Intoxication Instructions
In Ground Two, Petitioner alleges trial counsel was ineffective for failing to object to the trial court's jury instructions regarding accomplice liability and voluntary intoxication. (Am. Pet., ECF No. 52 at 7.) Respondent contends both claims are procedurally defaulted. (Respt.'s Mem. Supp. Summ. J., ECF No. 54 at 13.) In response, Petitioner directs the court to a previously filed response to Respondent's first motion for summary judgement on his original petition and cites Sandstrom v. Montana, 442 U.S. 510 (1979), and Rosemond v. United States, 572 U.S. 65 (2014), but does not respond to Respondent's assertion of procedural default. (Petr.'s Resp. Opp'n Summ. J., ECF No. 61 at 4.) However, in Petitioner's previous response, he asserted “counsel at trial and PCR were ineffective for not objecting or addressing [this issue] at PCR hearing.” (ECF No. 46 at 4.) To the extent, under the most liberal construction, this one sentence could constitute an attempt to show cause for the procedural default of this ground under Martinez v. Ryan, 566 U.S. 1 (2012), Petitioner fails to meet his burden.
Generally, any errors of PCR counsel cannot serve as a basis for cause to excuse a petitioner's procedural bar of his claims. See Coleman, 501 U.S. at 752. However, in Martinez v. Ryan, the United States Supreme Court established a “limited qualification” to the rule in Coleman. Martinez, 566 U.S. at 15. The Martinez Court held that ineffective assistance of counsel “at initial-review collateral review proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Id. at 9. In describing its holding in Martinez, the Supreme Court has stated:
We . . . read Coleman as containing an exception, allowing a federal habeas court to find “cause, ” thereby excusing a defendant's procedural default, where (1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial- counsel claim”; and (4) state law requires that an “ineffective assistance of trial counsel [claim] . . . be raised in an initial-review collateral proceeding.”Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citing Martinez, 132 S.Ct. at 1318-19, 1320-21); see also Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012) (summarizing the Martinez test to require the following: “a reviewing court must determine whether the petitioner's attorney in the first collateral proceeding was ineffective . . ., whether the petitioner's claim of ineffective assistance of trial counsel is substantial, and whether there is prejudice”).
The United States Court of Appeals for the Fourth Circuit has held that South Carolina law requires ineffective-assistance-of-trial-counsel claims to be raised on collateral review, thus satisfying the third and fourth elements described in Trevino. Sigmon v. Stirling, 956 F.3d 183, 198 (4th Cir. 2020). The Fourth Circuit has also found that Martinez requires a petitioner to show “that initial postconviction counsel performed deficiently, under the first prong of Strickland, by failing to exhaust the underlying ineffective-assistance-of-trial-counsel claim, but not that said counsel's deficient performance was prejudicial, under the second prong of Strickland . . . .” Owens v. Stirling, No. 18-8, ____ F.3d ____, 2020 WL 4197742, at *18 (4th Cir. 2020); see also Strickland v. Washington, 466 U.S. 668, 687 (1984) (stating to demonstrate ineffective assistance of counsel, a petitioner must show that (1) his counsel was deficient in his representation, i.e., that counsel's errors were so serious that his performance was below the objective standard of reasonableness guaranteed by the Sixth Amendment to the United States Constitution and (2) he was prejudiced as a result). “Accordingly, to establish cause to excuse the procedural bar to his underlying ineffective-assistance-of-[trial]-counsel claim, [a petitioner] must show (1) that the underlying claim is substantial and (2) that Initial Postconviction Counsel's failure to raise it was deficient.” Owens, 2020 WL 4197742, at *19. The Supreme Court defines a “substantial” claim as one that “has some merit.” Martinez, 566 U.S. at 14 (comparing the standard to that for issuance of certificates of appealability); see also Owens, 2020 WL 4197742, at *20 (“If reasonable jurists could debate the merits of the underlying claim, then it must have (at least) some merit.”).
Petitioner raised the second part of this ground-that trial counsel was ineffective for failing to object to the trial court's voluntary intoxication charge-in his PCR application, but failed to raise it again on appeal. The Supreme Court has clearly stated that its holding in Martinez does not extend to claims defaulted on PCR appeal. See Davila v. Davis, 137 S.Ct. 2058, 2065 (2017). Accordingly, Petitioner fails to overcome the procedural default of this portion of Ground Two.
As to the accomplice liability charge, the trial court instructed the jury as follows:
If a crime is committed by two or more people who were acting together in committing a crime, the act of one is the act of all. A person who joins with another to commit an unlawful act is criminally responsible for everything done by the other person which happens as a probable or natural consequence[] of the acts done in carrying out the common plan and purpose. For example, two people can be guilty of killing another person when only one of the two had a gun, there was only one bullet, and only one of the two fired the shot that caused the death. If two or more people are together, acting together, assisting each other in committing the offense, the act of one is the act of all, or as it is sometimes said, the hand of one is the hand of all. Accomplice liability applies to murder, which is the natural and probable consequence of the intended crime.
Prior knowledge that a crime is going to be committed without more is not sufficient to make a person guilty of a crime. Mere knowledge that another person is going to commit a crime, even if the Defendant is present when the crime is committed, is not sufficient to convict the Defendant as a principal. Guilt is a principal, if shown by actual or constructive presence at the scene, as a result of a prior arrangement. Therefore, a finding of a prior arranged plan or scheme is necessary for the finding of guilt as a principal. The State must prove beyond a reasonable doubt by competent evidence the theory of the hand of one is the hand of all.
A principal in a crime is the one who either actually commits the crime or who is present, aiding, abetting, or assisting in committing a crime. When a person does an act in the presence of and with the assistance of another, the act is done by both. Where two or more acting with a common plan or intent are present at the commission of a crime, it does not matter who actually commits the crime. All are guilty. The hand of one is the hand of all. Present at the commission of a crime means to be sufficiently near to aid and abet and assist in the commission of a crime. However, mere presence at the scene of the crime is not sufficient to convict one as a principal on the theory of aiding and abetting.
Intent is also a necessary element where there must have been some common design or intent to commit the crime, and the crime must have been committed pursuant thereto with the person aiding and abetting by some overt act. Intent may be shown by acts of conduct of the Defendant and other circumstances from which he may naturally and reasonably infer intent. The State must prove these elements beyond a reasonable doubt.(App. at 1128-30, ECF No. 39-3 at 130-32.)
Petitioner argues this instruction could have led the jurors to conclude they were supposed to find against Petitioner on the element of intent, thus relieving the State of its duty to prove every necessary element beyond a reasonable doubt. (ECF No. 46 at 4.) In a memorandum in support of his original response, Petitioner expounds on the validity of the “natural and probable consequence doctrine.” (ECF No. 46-1 at 4-8.) However, the question before the court is whether there is any merit to Petitioner's claim that trial counsel was ineffective for not objecting to the court's instruction.
To show trial counsel's performance was deficient under Strickland, Petitioner would have to show trial counsel had a basis to object to the jury instruction under state law. Under South Carolina law, “[a] jury charge is correct if, when the charge is read as a whole, it contains the correct definition and adequately covers the law.” State v. Brandt, 713 S.E.2d 591, 603 (S.C. 2011). The law at the time of Petitioner's trial allowed a jury to find a defendant guilty of murder based on the “hand of one, hand of all” or accomplice liability theories. See State v. Langley, 515 S.E.2d 98, 101 (S.C. 1999); State v. Thompson, 647 S.E.2d 702, 704-05 (S.C. Ct. App. 2007) (“A defendant may be convicted on a theory of accomplice liability pursuant to an indictment charging him only with the principal offense. [However, m]ere presence and prior knowledge that a crime was going to be committed, without more, is insufficient to constitute guilt.”). Petitioner fails to identify facts or law suggesting the trial court's instruction was improper and trial counsel cannot be ineffective for failing to object to a proper instruction. Thus, Petitioner fails to show his underlying claim of ineffective assistance of trial counsel has some merit and fails to meet his burden under Martinez. The court recommends granting Respondent's motion for summary judgement as to Ground Two.
Petitioner's citations to Sandstrom v. Montana, 442 U.S. 510 (1979), and Rosemond v. United States, 572 U.S. 65 (2014), are unavailing. Sandstrom dealt with a jury charge that “[t]he law presumes that a person intends the necessary and natural consequences of his acts.” 442 U.S. at 522-23. That charge was not given in Petitioner's case. In fact, the trial court made clear that intent was a necessary element of the crime that the State had to prove beyond a reasonable doubt. Similarly, in Rosemond, the Court struck down a district court's accomplice liability instruction because it failed to clearly explain that the defendant had to have prior knowledge that his codefendant had a gun during a drug crime to be liable under 18 U.S.C. § 924(c). 572 U.S. at 8283. That decision is not applicable to Petitioner's case.
3. Ground Three-Conceding Guilt
In Ground Three, Petitioner asserts trial counsel was ineffective for admitting Petitioner's guilt during his closing argument. (Am. Pet., ECF No. 52 at 8.) Respondent contends Petitioner never asserted this claim in the state courts and it is procedurally defaulted. (Respt.'s Mem. Supp. Summ. J., ECF No. 54 at 13.) In response, Petitioner asserts McCoy v. Louisiana, 138 S.Ct. 1500 (2018), as a new rule of constitutional law warranting habeas relief under § 2244(b)(2). (Petr.'s Resp. Opp'n Summ. J., ECF No. 61 at 4.)
Subsequent to his arrest, Petitioner confessed to the attempted armed robbery and evidence of that confession was admitted at trial, despite trial counsel's objections. (App. at 1012-13, ECF No. 39-3 at 14-15.) At the end of his lengthy closing argument, trial counsel stated:
Now, my client is on trial for attempted armed robbery, and for that you should find him guilty, because he's told you he's guilty of attempted armed robbery. But there was a break, a 21-second break, where things changed. And like Rayshawn, he was there as a bystander, watching the outrageous conduct of other people.
And so when you go back to your jury room and you're kicking around what is the correct and true verdict in this case, it may not feel good to say that we don't know all the answers, and that we have a legitimate concern that when that DNA is ultimately tested someday and it's consistent with Bryan Rivers, that we will not have done our job well by convicting the wrong man.(App. at 1115, ECF No. 39-3 at 117.)
At the PCR hearing, trial counsel explained his defense strategy:
The defense in the case was that Ryan had gone along with what he thought was going to be a robbery of a store, a restaurant, Famous Joe's, and, opportunistically, the three defendants discovered there was a parked vehicle with what appeared to be someone inside. Our theory of defense is that when they attempted to enter the vehicle, the alarm was set off. Ryan was essentially left and that the co-defendant, Brian Rivers, who was carrying a handgun, inexplicably, 21 seconds afterwards, goes back to the vehicle and shoots into the vehicle, and that's what resulted in the death. So we argued that there was a disconnect between the original agreement, the plan, and then the events and the victim that was ultimately killed.(App. at 1259-60, ECF No. 39-3 at 261-62.)
Petitioner now argues that, under McCoy v. Louisiana, his “confession to crime does not relieve counsel of his obligation to have State prove defendant guilt, ” and that he said he was “innocent of this crime.” (Petr.'s Resp. Opp'n Summ. J., ECF No. 61 at 4-5.) Petitioner's claim fails for several reasons. First, the Supreme Court decided McCoy v. Louisiana on May 14, 2018, eleven days before Petitioner's PCR hearing. Accordingly, McCoy is not a new rule of constitutional law and Petitioner had ample opportunity to present this claim to the state courts.
Second, McCoy is inapplicable to Petitioner's case. In McCoy, the Supreme Court held that, under the Sixth Amendment, “[w]hen a client expressly asserts that the objective of ‘his defense' is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.” McCoy, 138 S.Ct. at 1509. There, despite McCoy's objection, defense counsel admitted McCoy's guilt during the penalty phase of his capital murder trial in an attempt to persuade the jury not to give McCoy the death penalty. Id. at 1506-07. McCoy consistently maintained his innocence of all charges throughout pretrial proceedings, expressly disagreed with trial counsel's strategy, sought to terminate counsel prior to trial because of the disagreement, and objected in court to counsel's concession during counsel's opening statement. Id. Here, nothing in the record suggests Petitioner expressed any disagreement with trial counsel's strategy prior to or during trial. Nor has Petitioner offered evidence of such a disagreement. Thus, the court cannot conclude trial counsel acted without Petitioner's consent.
Accordingly, Ground Three remains procedurally defaulted and the court recommends granting Respondent's motion for summary judgement as to this ground.
4. Ground Four-Third-Party Guilt
In Ground Four, Petitioner asserts the trial court erred and violated his constitutional right to present a defense when it refused to allow trial counsel to cross-examine witnesses concerning whether the same gun was used in a separate armed robbery. (Am. Pet., ECF No. 52 at 10.) This claim was raised and considered on direct appeal and is preserved for federal habeas review.
At trial, defense counsel sought to cross-examine two witnesses to introduce evidence of third-party guilt; specifically, that Bryan Rivers, a co-defendant, had used the murder weapon during an armed robbery two weeks prior. (App. at 124, 127-29, ECF No. 39-1 at 126, 129-31.) Trial counsel also argued preclusion of this evidence would violate Petitioner's due process right to present a full defense. (App. at 130-31, 36-37, ECF No. 39-1 at 132-33, 138-39.) The State asserted the two crimes were not similar and that the evidence was more prejudicial than probative under South Carolina Rule of Evidence 403. (App. at 125-27, ECF No. 39-1 at 127-29.) The trial court agreed with the State and found the two shootings were not similar enough to constitute a common scheme or plan under South Carolina Rule of Evidence 404(b) and the testimony was not admissible evidence of third-party guilt. (App. at 210-17, ECF No. 39-1 at 213-19.) After the court's ruling, trial counsel again articulated his due process argument, relying on Holmes v. South Carolina, 547 U.S. 319 (2006), and State v. Cope, 748 S.E.2d 194 (S.C. 2013), and the court clarified that its denial applied to that basis as well. (App. at 224-27, ECF No. 39-1 at 226-29.)
On appeal, the South Carolina Court of Appeals found as follows:
Appellant contends (1) pursuant to Rule 404(b), SCRE, the third-party guilt doctrine, and due process laws, the trial court erred in refusing to allow crossexamination of two witnesses regarding an armed robbery that occurred two weeks prior to the instant murder .... We affirm pursuant to Rule 220(b) and the following authorities:
1. As to whether the trial court erred in limiting cross-examination: Rule 404(b), SCRE (“Evidence of other crimes, wrongs, or acts . . . may . . . be admissible to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.”); State v. Cope, 405 S.C. 317, 337, 748 S.E.2d 194, 204 (2013), cert denied, 135 S.Ct. 400 (2014) (“Where there is a close degree of similarity between the crime charged and the prior bad act, the prior bad act is admissible to demonstrate a common scheme or plan.”); id. (“When determining whether evidence is admissible as common scheme or plan, the trial court must analyze the similarities and dissimilarities between the crime charged and the bad act evidence to determine whether there is a close degree of similarity.”); Id. at 338 n.4, 748 S.E.2d at 205 n.4 (noting we must look at the commonality of the entire crimes when determining admissibility if the purpose of the evidence is to show that the allegedly guilty third party acted pursuant to a common scheme); id. at 341, 748 S.E.2d at 206 (“The admissibility of evidence of third-party guilt is governed by State v. Gregory, 198 S.C. 98, 16 S.E.2d 532 (1941).”); Gregory, 198 S.C. at 104-05, 16 S.E.2d at 534 (“[T]he evidence offered by accused as to the commission of the crime by another person must be limited to such facts as are inconsistent with his own guilt, and to such facts as raise a reasonable inference or presumption as to his own innocence; evidence which can have (no) other effect than to cast a bare suspicion upon another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible.” (emphasis added)); Cope, 405 S.C. at 339, 748 S.E.2d at 205-06 (addressing a similar due process argument in which the appellant relied on Holmes v. South Carolina, 547 U.S. 319, 323 (2006), and finding the facts were distinguishable from Holmes; holding “[i]t was not the strength of the State's case that led to exclusion of evidence of [the alleged guilty third party's] other crimes. Instead, it was because the other crimes were not sufficiently similar to the crime charged so as to be admissible”).State v. Deleston, Op. No. 2016-UP-055, 2016 WL 526592, at *1 (S.C. Ct. App. Feb. 10, 2016) (unpublished).
Petitioner contends “[e]vidence of prior incident was admitted by prosecution of this prior incident which would establish third-party guilt defense. The appellate conclusion applied facts to this issue which was not consistent with the law and the court failure to allow cross-examination violated” his constitutional right to present a defense. (Am. Pet., ECF No. 52 at 10.) Petitioner also notes that he incorporates his response to Respondent's prior motion for summary judgment (ECF No. 61 at 5), in which he expressed his disagreement with the appellate decision because, in his view, the evidence supported an inference of third-party guilt and Cope was wrongly decided (ECF No. 46 at 6-8).
It is not within the province of this court to consider state evidentiary matters. Rather, to obtain federal habeas relief, Petitioner must show that the state appellate decision misapplied clearly established federal law or was based on a misinterpretation of the facts. Conclusory allegations to this effect and bare disagreement with state court conclusions are not enough.
Petitioner fails to show the South Carolina Court of Appeals misapplied Holmes, the only federal authority considered. In Holmes, the Supreme Court approved of the South Carolina Supreme Court's reasoning from Gregory that
[E]vidence offered by accused as to the commission of the crime by another person must be limited to such facts as are inconsistent with his own guilt, and to such facts as raise a reasonable inference or presumption as to his own innocence; evidence which can have (no) other effect than to cast a bare suspicion upon another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible....[B]efore such testimony can be received, there must be such proof of connection with it, such a train of facts or circumstances, as tends clearly to point out such other person as the guilty party.Holmes, 547 U.S. at 328 (quoting Gregory, 16 S.E.2d at 534-35). The Court emphasized that the trial court's focus should be “on the probative value or the potential adverse effects of admitting the defense evidence of third-party guilt” and not on “the strength of the prosecution's case.” Id. at 329.
Here, the trial court repeatedly questioned the attorneys for both sides concerning the facts of the prior armed robbery, focused on the similarities and differences between the crimes, and eventually concluded the two incidents lacked the connection required under Holmes and Gregory. (See App. at 210-17, ECF No. 39-1 at 213-19.) Petitioner has not identified specific facts or binding federal authority undermining the trial court's decision or the state appellate court's affirmance. Accordingly, the court recommends granting Respondent's motion for summary judgement as to Ground Four.
RECOMMENDATION
For the foregoing reasons, the court recommends Respondent's motion for summary judgment (ECF No. 56) be granted and the Amended Petition be denied.