Opinion
C/A 4:22-cv-01036-HMH-TER
01-10-2023
JULIA SHAWNETTE GORMAN, Petitioner, v. WARDEN PATRICIA YEDELL, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III Florence, South Carolina United States Magistrate Judge
Petitioner, appearing pro se, filed her petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on March 31, 2022. (ECF No. 1). On August 8, 2022, Respondent filed a motion for summary judgment along with a return and memorandum. (ECF Nos. 24, 25). The undersigned issued an order on August 9, 2022, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (ECF No. 26). Petitioner subsequently filed two documents styled as motions to amend the petition. (ECF Nos. 30, 32). Respondent filed responses in opposition to both motions (ECF Nos. 33, 34) and, after two extensions of time, Petitioner filed replies (ECF Nos. 40, 46). On November 2, 2022, the court denied Petitioner's motion to amend and granted her 15 days to respond to Respondent's motion for summary judgment. (ECF No. 47). Petitioner filed a proper response on November 14, 2022. (ECF No. 50). Accordingly, Respondent's motion for summary judgment is now ripe for review.
This habeas corpus case was automatically referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02, DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the district judge.
PROCEDURAL HISTORY
In July 2008, Petitioner and her boyfriend, Robert Palmer, were caring for Petitioner's 17 month old grandson. On July 14, 2008, Petitioner's grandson presented to the hospital with a traumatic head injury that he suffered while in their care. He died from his injuries two days later.
The Horry County Grand Jury indicted Petitioner and Palmer for homicide by child abuse, unlawful conduct toward a child, and aiding and abetting homicide by child abuse. (ECF No. 24-8 at 96-101). Petitioner and Palmer were tried together on November 14-18, 2011 before The Honorable Larry B. Hyman. Petitioner was represented by James C. Galmore (“Trial Counsel”). (ECF No. 24-1 at 3). The jury found Petitioner guilty of all charges and she was sentenced to ten years for unlawful conduct toward a child, twenty years for aiding and abetting homicide by child abuse, and thirty-five years for homicide by child abuse, all to run concurrently. (ECF No. 24-7 at 126-27, 169).
Direct Appeal
Petitioner filed a timely notice of appeal (ECF No. 24-13 at 1) and through appellate counsel, Susan B. Hackett (“Appellate Counsel”), presented the following issues to the South Carolina Court of Appeals:
I. Appellant's right against self-incrimination as guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution was violated by the introduction of her statements to police where the first statement was the product of an interrogation by officers who failed to advise Appellant of her Miranda warnings and the second statement was tainted by the initial violation and was the product of an involuntary waiver.
II. The trial court erred in failing to direct a verdict of acquittal in Appellant's favor where the state failed to present any direct or substantial circumstantial evidence that Appellant committed the alleged criminal acts.(ECF No. 24-13 at 6). After briefing by the state and oral argument, the Court of Appeals affirmed Petitioner's convictions and sentences for homicide by child abuse and unlawful conduct towards a child, but reversed her conviction for aiding and abetting homicide by child abuse. State v. Palmer, 758 S.E.2d 195, 198 (S.C. Ct. App. 2014); (ECF No. 24-15). Significantly, the Court of Appeals found Petitioner failed to preserve her Miranda allegation. Id. at 204-05. Both parties filed petitions for rehearing, which the Court of Appeals denied. (ECF No. 24-16 at 18-27, 36-39, 41).
All parties then petitioned the South Carolina Supreme Court for certiorari. In her petition, Petitioner alleged the Court of Appeals erred in affirming the TrialCourt's failure to direct a verdict of acquittal in Petitioner's favor. (ECF No. 24-17 at 4). The South Carolina Supreme Court affirmed the Court of Appeals' decision as to Petitioner's convictions. State v. Palmer, 776 S.E.2d 558, 559 (S.C. 2015); (ECF No. 24-21).
The court reversed the Court of Appeals concerning Palmer's convictions, finding he was entitled to a directed verdict on both charges.
PCR Action
Petitioner filed an application for post-conviction relief (“PCR”) on December 3, 2015, alleging ineffective assistance of Trial and Appellate Counsel and trial court error in admitting her statement to police into evidence. (ECF No. 24-7 at 176). The Honorable Steven H. John conducted an evidentiary hearing on February 21, 2018, at which Petitioner was represented by Steven W. Fowler (“PCR Counsel”). (ECF No. 24-7 at 186). The PCR court denied Petitioner's application on April 5, 2018. (ECF No. 24-8 at 75).
PCR Appeal
Petitioner timely appealed and, through appellate counsel Victor R. Seeger, petitioned the South Carolina Supreme Court for a writ of certiorari on one issue:
Whether trial counsel provided ineffective assistance of counsel where he failed to adequately investigate Petitioner's alibi defense, where trial counsel failed to interview alibi witnesses and failed to review security camera videos that would have corroborated Petitioner's alibi defense?(ECF No. 24-26 at 3). The State made its return (ECF No. 24-27 at 1-18), the South Carolina Supreme Court transferred the case to the Court of Appeals (ECF No. 24-28 at 1), and the Court of Appeals denied the petition on September 29, 2021 (ECF No. 24-29 at 1) and issued the remittitur on October 18, 2021 (ECF No. 24-30 at 1).This federal habeas action followed.
HABEAS ALLEGATIONS
Petitioner raises the following allegations in her petition, quoted verbatim:
GROUND ONE: Misconduct or errors by Judge or Prosecutor
Supporting facts: (1) The State Courts erred by allowing statements given to officers during interrogation which they failed to advise me of Miranda warnings and thus violated by Fifth & Fourteenth Amendments to the U.S. Constitution. Statements not the product of voluntary waiver.
(2) The trial court erred in failing to direct a verdict of acquittal in my favor where the state failed to present any direct or substantial circumstantial evidence that I committed the alleged criminal acts.
(3) The trial court erred in denying motion for a directed verdict due to the state's failure to prove I acted with extreme indifference.
(4) Prosecutors failure to turn over a copy of interrogation tape.
GROUND TWO: Ineffective assistance of counsel.
Supporting facts: (1) Trial Counsel rendered ineffective assistance in failing to provide alibi witnesses or alibi defense.
(2) Trial Counsel did not ask for a direct verdict based on the County, which was prejudiced and did not raise severance.
(3) Failing to object to and win the suppression of the recorded statements under Ground One to law enforcement after the victim's death.
(4) Failure to challenge venue which resulted in prejudice.
(5) Failure to call expert witnesses for contradictory necessities of stroller going backwards falling down the steps, falling off bed, hitting head on table, wall, toys, the bulldog puppy knocked him over.
(6) Failure to call character witnesses on my behalf.
(7) Failure to object to hearsay concerning thoughts about victim or medications given to him.
(8) Failure to have Cesalee (daughter) testify. Along with reasons why their strained relationships. Also, mental health issues at hand.
(9) Failure to point out victim's overall character; such as: speech impediment at 17 months old, sleeping a lot, being slow to respond - if at all.
(10) Failure to determine why Cesalee brought said victim to my house in July. Failure to investigate above fatality infected the proceedings and made the entire trial fundamentally unfair.
(11) The video statements given by Julia Gorman should not have been admitted as evidence. Interrogating officers may sometimes make false representations concerning the facts surrounding the crime and they cannot make false promises, whether direct or implied.
(12) He failed to investigate the CT scans. The scans of the brain do not indicate how fast the onset of symptom occurred.
(13) CVT (Cerebral Venous Thrombosis) has been under-diagnosed in the pediatric population and reason to believe that it has been misdiagnosed as SBS/AHT in the courtroom.
GROUND THREE: Ineffective counsel for post conviction relief
Supporting facts: (1) PCR Counsel failed to raise issues by failing to seek my acquittal.
(2) Conflict of interest - this affected the adequacy of his representation.
(3) Ineffective Counsel to obtain all videos for alibi/witness alibi.(Petition, ECF No. 1 at 13, 17-19, 20).
STANDARD FOR SUMMARY JUDGMENT
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. 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, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists. If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c).
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
STANDARD OF REVIEW
In addition to the standard that the court must employ in considering motions for summary judgment, the court must also consider the petition under the requirements set forth in 28 U.S.C. § 2254. Under § 2254(d), An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the State court proceeding.
Thus, a writ may be granted if a state court “identifies the correct principle from [the Supreme] Court's decisions but unreasonably applies that principle of law” to the facts of the case. Humphries v. Ozmint, 397 F.3d 206, 216 (4th Cir. 2005) (citing Williams v. Taylor, 529 U.S. 362, 413 (2000)). However, “an ‘unreasonable application of federal law is different from an incorrect application of federal law,' because an incorrect application of federal law is not, in all instances, objectively unreasonable.” Id. “Thus, to grant [a] habeas petition, [the court] must conclude that the state court's adjudication of his claims was not only incorrect, but that it was objectively unreasonable.” McHone v. Polk, 392 F.3d 691, 719 (4th Cir. 2004). Further, factual findings “made by a State court shall be presumed to be correct,” and a Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
Respondent concedes Petitioner filed her petition within the one-year statute of limitations. (ECF No. 24 at 37).
Respondent asserts only three of Petitioner's allegations are properly before this court. (ECF No. 24 at 38-45). The court agrees.
Ground One alleges trial court and prosecutorial errors Petitioner needed to raise on direct appeal in order to properly exhaust. In her direct appeal, Petitioner presented the claims raised here as Ground One, parts (1), (2), and (3). (See ECF No. 24-13 at 2 (alleging the trial court erred by: (1) admitting Petitioner's statement to police despite Miranda warning defects and (2) failing to direct a verdict of acquittal in Petitioner's favor)).
The Court of Appeals considered all three claims but found Petitioner failed to preserve her argument that any statements she gave prior to being advised of her Miranda rights were inadmissable because she did not allege a Miranda violation before or during trial. State v. Palmer, 758 S.E.2d 195, 204 (S.C. Ct. App. 2014); (ECF No. 24-15 at 9). Petitioner did not challenge the appellate court's finding regarding her Miranda claim in either her petition for rehearing or petition for a writ of certiorari. (See ECF Nos. 24-16 at 18-27, 24-17 at 4). Accordingly, because the Court of Appeals dismissed Petitioner's Miranda allegation on an adequate and independent state law basis-Petitioner's failure to present the issue to the trial court at the appropriate times-that allegation is procedurally barred from federal habeas review. See Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (issue procedurally defaulted in state court is procedurally barred from federal habeas review). In addition, Petitioner's allegation of prosecutorial misconduct in Ground One, part (4), was never presented to the state courts and is thus procedurally defaulted.
In Ground Two, Petitioner raises thirteen claims of ineffective assistance of Trial Counsel. (See ECF No. 1 at 18-19). To properly exhaust these claims in state court, Petitioner had to present them to the PCR court and in her PCR appeal. While Petitioner argued a number of these claims to the PCR court, she only raised one claim in her PCR appeal-that Trial Counsel was ineffective for failing to adequately investigate Petitioner's alibi defense. (ECF No. 24-26 at 2). Thus, all other allegations in Ground Two are procedurally defaulted.
In Ground Three, Petitioner alleges ineffective assistance of PCR Counsel. (ECF No. 1 at 20). Freestanding claims against PCR counsel are not cognizable in federal habeas corpus actions. See 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during . . . State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.”).
To the extent Petitioner asserts that her allegations are subject to merits review despite any procedural default pursuant to a “plain error” analysis under Rule 52(b) of the Federal Rules of Criminal Procedure, the court notes this argument is inapplicable to a petition for a writ of habeas corpus under 28 U.S.C. § 2254, as a federal court's review is bound to the stricter standard of “cause and actual prejudice.” (See ECF No. 50 at 2); Wilson v. Murray, 806 F.2d 1232, n.2 (4th Cir. 1986) (citing Wainwright v. Sykes, 433 U.S. 72 (1977)). To show “actual prejudice,” a petitioner must show more than plain error. See Engle v. Isaac, 456 U.S. 107, 134-35 (1982) (rejecting the application of plain error review to federal habeas challenges to state convictions and finding “the burden of justifying federal habeas relief for state prisoners is ‘greater than the showing required to establish plain error on direct appeal'”) (quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977)).
For these reasons, the only grounds properly before the court for federal habeas review are Ground One, parts (2) and (3), and Ground Two, part (1).
Ground One
In the preserved portions of Ground One, Petitioner asserts the trial court should have directed verdict in her favor because the State failed to present any direct or circumstantial evidence that she committed the alleged criminal acts or prove that she acted with extreme indifference. (ECF No. 1 at 13). Respondent contends the state courts correctly decided these issues and that their decisions are supported by the record and entitled to deference. (ECF No. 24 at 51-52, 58-67).
Almost half of Respondent's discussion of this claim is a block quote of the relevant portions of the South Carolina Supreme Court's opinion. (See ECF No. 24 at 58-61). The Return also includes a four page block quote of the South Carolina Supreme Court's recitation of the facts and twenty pages dedicated to a verbatim re-typing of the PCR Court's order of dismissal. (ECF No. 24 at 2-6, 12-32). The state courts' orders and opinions are included in the Appendix and are easily accessible by the court.
Claims of insufficiency of the evidence such that a directed verdict should have been granted are cognizable in habeas actions as claims of a denial of due process. However, review in this area is “‘sharply limited.'” Wilson v. Greene, 155 F.3d 396, 405 (4th Cir. 1998) (quoting Wright v. West, 505 U.S. 277, 296 (1992)). District courts are required to give significant deference to the state court's ruling on motions for directed verdict and similar challenges to the sufficiency of evidence to convict because “[f]ederal review of the sufficiency of evidence to support a state conviction is not meant to consider anew the jury's guilt determination or to replace the state's system of direct appellate review.” Wilson, 155 F.3d at 405-06.Thus, “a defendant is entitled to relief only if ‘no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 324 (1979)).
Whether evidence is sufficient for a directed verdict is a matter for the state court and the court will not grant relief based on the state's own standards for sufficiency of the evidence. See Wilson v. Greene, 155 F.3d 396, 407 (4th Cir. 1998).
At trial, Trial Counsel moved for a directed verdict at the end of the State's case and again prior to the jury charge. (ECF Nos. 24-6 at 3, 24-7 at 20). In addition, after the jury returned its verdict, Trial Counsel moved for a new trial based on insufficient evidence. (ECF No. 24-7 at 148). In all three motions, Trial Counsel argued the State failed to show which defendant actually inflicted the child's injuries or that one defendant aided and abetted the other; rather, the State's evidence showed the timeframe in which the injuries occurred, that the child's symptoms would have been immediately apparent, and that Petitioner and Palmer had exclusive custody of the child at the time. (ECF Nos. 24-6 at 3-10, 24-7 at 20, 149-50). The trial court denied counsel's motions, finding there was substantial circumstantial evidence of guilt. (ECF No. 24-6 at 10, 24-7 at 20-21, 153). The trial court and counsel for both defendants discussed the specific evidence presented, including evidence that Petitioner had shaken the child, that the child was fine when Petitioner got home from work and suffered an injury when she went to check on him, the significant nature of the injuries, and Palmer's statement that he did not injure the child, and the trial court reasoned:
there is ample evidence that there was a homicide in this case. The . . State has produced likewise a substantial amount of circumstantial
evidence that really puts forth just in my view two scenarios. Number one, that Mr. Palmer injured the child and the child was unconscious when Ms. Gorman came home and she found him that way....The other is that Ms. Gorman came home and the child was as Mr. Palmer said, . . . the child was fine and that she injured the child, who knows, I don't right now, but that's what a jury is for and I think this should go to the jury....Or both could have been involved in it, so there's three scenarios.(ECF No. 24-6 at 3-10).
The Court of Appeals reviewed the State's evidence and agreed there was sufficient evidence to charge the jury on homicide by child abuse and unlawful conduct toward a child, but not on aiding and abetting homicide by child abuse. State v. Palmer, 758 S.E.2d 195, 197-204 (S.C. Ct. App. 2014). The South Carolina Supreme Court reviewed the evidence again and affirmed the trial court's denial of Petitioner's directed verdict motions concerning the homicide by child abuse and unlawful conduct toward a child charges. State v. Palmer, 776 S.E.2d 558, 559-66 (S.C. 2015).
Petitioner argues conclusively that the State failed to present direct or substantial circumstantial evidence that she committed the alleged criminal acts or that she acted with extreme indifference. (ECF No. 1 at 13). These conclusory statements fail to show there was insufficient evidence such that no rational trier of fact could have found Petitioner guilty beyond a reasonable doubt and Petitioner's argument fails to show the state court's dismissal of this claim was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or 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). Accordingly, the undersigned recommends granting Respondent's motion for summary judgement as to Ground One.
In other filings, Petitioner challenges the State expert witnesses' testimony, arguing they impermissibly assumed the role of fact-finder, offered contradictory testimony, and “testified erroneously about the incidence of bilateral parietal fractures in accidental head trauma.” (ECF Nos. 30-1 at 2-3, 6, 32-1 at 1-4). To the extent these arguments may be construed to support this claim, Petitioner fails to articulate how the contradictory or misleading expert testimony evidences her lack of guilt to the extent that no rational trier of fact could have found her guilty. Rather, Petitioner's argument essentially supports the trial court's finding that the evidence supported multiple factual scenarios, one of which was that Petitioner injured the child, and there was enough evidence of each scenario to submit the question to the jury. Further, Trial Counsel highlighted many of these issues for the jury in his extensive closing argument. (See, e.g., ECF No. 24-7 at 26 (“We've had four doctors testify and they gave us five different time lines for when these injuries could have been inflicted; they don't know.”), 27 (“Each of the doctors gave you a different opinion.”), 33-35 (discussing other possible causes of the child's injuries), 39 (again noting the conflicting expert opinions about timing of the injury)). Thus, the jury heard all of the evidence and the argument Petitioner presents here and still found her guilty.
Ground Two
In the preserved portion of Ground Two, Petitioner asserts Trial Counsel was ineffective for failing to properly investigate or present an alibi defense. (ECF No. 1 at 18). Respondent contends the PCR court's finding on this claim is supported by both fact and law and entitled to double deference. (ECF No. 24 at 71-78).
The Sixth Amendment to the United States Constitution guarantees a defendant the right to effective assistance of counsel in a criminal prosecution. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). In the case of Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth two factors that must be considered in evaluating claims for ineffective assistance of counsel. A petitioner must first show that his counsel committed error. If an error can be shown, the court must consider whether the commission of an error resulted in prejudice to the defendant.
To meet the first requirement, “[t]he defendant must show that counsel's representation fell below an objective standard of reasonableness.” Strickland, at 688. “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Turner v. Bass, 753 F.2d 342, 348 (4th Cir. 1985) (quoting Strickland, reversed on other grounds, 476 U.S. 28 (1986)). The Court further held that:
[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct . . . the court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. (Emphasis added.)Id.; Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000) (confirming the Strickland analysis).
In meeting the second prong of the inquiry, a complaining defendant must show that he was prejudiced before being entitled to reversal. Strickland requires that:
[T]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Strickland, at 694.
Petitioner asserts Trial Counsel was ineffective for failing to provide an alibi defense or alibi witnesses. (ECF No. 1 at 18). At the PCR hearing, Petitioner argued Trial Counsel should have obtained videotapes and receipts from her employer and other stores to establish a timeline placing her away from the house when the child was likely injured. (ECF No. 24-7 at 211-12).
Trial Counsel testified he and Petitioner met about 10 times prior to trial. (Id. at 15). He testified the timeline was a “very difficult concept” in Petitioner's case because the State could not establish exactly when the injuries occurred. (Id. at 16). He testified that Petitioner had told him she got off of work, went home, checked on the child, then went to a grocery store and a video store, came back home, started cooking dinner, and later checked on the child again and found him in distress. (Id. at 18-19). Trial Counsel stated there was a discrepancy between when Petitioner clocked out of work and the time stamped on a bounced check she used at the video store, but that they used the check to attempt to establish she was not in the house for a period of time and Palmer was alone with the child. (Id. at 19-20). Regarding whether he conducted additional investigation into an alibi defense, counsel responded,
Well, it's not quite an alibi defense. I guess we could've called a manager from Bass Pro Shops to confirm the time on the timecard, but I don't think the - - the case rested on - - I don't think the allegation was that she clocked out early and went home or went home and was still riding the clock and then went back and punched in. So, I didn't think we needed to call . . . the witness to address that part of it. Perhaps, we should have called a witness from the video store to testify that the timestamp was off, but just given that I felt the jury would reasonably conclude that she could not have crossed the county in nine minutes, I . . . thought that it was a reasonable explanation that the timestamp on the check might've been off.(Id. at 20). Trial Counsel stated his overall defense strategy was to show that Petitioner was not around the child for most of the day and had always acted appropriately toward him. (Id. at 24). On cross-examination, Trial Counsel admitted he never spoke with Petitioner's manager at Bass Pro Shop and that they did not have a receipt from the grocery store, but the theory was that the time-stamped bounced check from the video store showed Petitioner was not in the house during the time the child was likely injured. (Id. at 28-29).
There were nine minutes between the time Petitioner clocked out of work and the timestamp on the bounced check. However, it was physically impossible for Petitioner to get from work to the video store in nine minutes. Thus, Petitioner asserted the timestamp had not been adjusted for daylight savings time and was one-hour off.
The PCR court summarized Petitioner's version of the timeline of events on the day the child was taken to the hospital. (ECF No. 24-8 at 84). The court noted, Petitioner testified at trial that she clocked out of work at 3:45pm, arrived home around 4:30pm and found the child napping, left the house 10 minutes later, went to an IGA grocery store where she bounced a check, spent five to ten minutes at a video store near the grocery store, returned home and began cooking dinner, ate dinner, checked on the child and found him seizing, and called 911 at 6:06pm. (Id. at 85). The PCR court noted the State's experts opined the child's injuries occurred either that day or, possibly, in the middle of the previous night and the child would have been immediately symptomatic, displaying an alteration in consciousness and breathing and inability to walk, move, or play with toys. (Id. at 84-85).
Relying on Strickland and its state law equivalents, the PCR court found Petitioner could not prove any prejudice “from her suggested courses of investigation” because no alibi witnesses or video evidence was presented at the evidentiary hearing and found, therefore, it could not grant Petitioner's application based on mere speculation. (Id. at 85).
Petitioner does not identify specific errors in the PCR court's analysis, but continues to assert Trial Counsel was ineffective for failing to “obtain all videos for alibi/witness alibi,” “collect receipts from IGA grocery store nor the video store,” and “investigate time stamp on bounce check from the IGA store nor the clock-out time at the Bass Pro Shop.” (ECF No. 1 at 25-26).
Petitioner fails to show that the state courts' denial of relief was based on an objectively unreasonable determination of the facts based on the state court record or an unreasonable application of Strickland. 28 U.S.C. § 2254(d)(2). Petitioner did not produce any video evidence, receipts, or testimony from potential alibi witnesses at the evidentiary hearing. Nor has Petitioner offered any substantial argument as to how this additional evidence would have benefitted her defense. See Bassette v. Thompson, 915 F.2d 932, 940-41 (4th Cir. 1990), cert. denied, 499 U.S. 982 (1991) (finding petitioner's allegation that attorney did ineffective investigation unsupportable absent proffer of the supposed witness's favorable testimony). Petitioner fails to show how additional evidence supporting her testimony that she was not in the house for some time prior to the 911 call would have convinced the jury of her innocence. Rather, as the PCR court noted, the jury could have found, based on the expert testimony, that the child suffered his injuries at any other time when Petitioner was home. Accordingly, Petitioner fails to show the PCR court unreasonably determined she failed to show prejudice under Strickland due to Trial Counsel's allegedly ineffective investigation. See Strickland, 466 U.S. at 694 (to demonstrate prejudice, a petitioner must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different”).
Accordingly, Petitioner fails to show the PCR court unreasonably applied Strickland or based its decision on an unreasonable determination of the facts and the court recommends granting summary judgment as to Ground Two.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's motion for summary judgment (ECF No. 25) be GRANTED in its ENTIRETY, and the petition be dismissed without an evidentiary hearing.
The parties' attention is directed to the important notice on the next page.