Opinion
2:22-cv-00103-BHH-MGB
02-27-2024
Darrell L. Goss, Sr., Petitioner, v. Warden Shane D. Jackson, Respondent.
REPORT AND RECOMMENDATION
Mary Gordon Baker United States Magistrate Judge
Darrell L. Goss, Sr. ("Goss"), a state prisoner proceeding pro se, seeks habeas corpus under 28 U.S.C. § 2254. (Dkt. No. 1.) This matter is before the Court on the Warden's Motion for Summary Judgment (Dkt. No. 49) and Goss's Cross-Motion for Summary Judgment (Dkt. No. 55), Motion to Strike (Dkt. No. 63), and Motion in Limine (Dkt. No. 65). Under 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to rule on any pretrial motions and to make recommendations to the District Judge on the summary judgment motions.
For the reasons set forth below, the undersigned denies Goss's motion to strike and motion in limine and recommends granting the Warden's motion for summary judgment and denying Goss's cross-motion for summary judgment.
BACKGROUND
On June 14, 2007, five African American men robbed the Urban Wear clothing store in North Charleston, South Carolina. One of the men, Joy Mack, beat the store's owner, Andy Ayazgok, with a gun, then the men tied the hands and feet of both Mr. Ayazgok and his assistant, and stole money from Mr. Ayazgok's pocket and his wallet, along with merchandise from the store. (Dkt. No. 48-1 at 1171-78.) Mr. Ayazgok was later able to identify Mack as his assailant but could not describe or identify the other four men. (Id.) However, law enforcement received a tip that Goss and his brother may have been involved. (Dkt. No. 48-2 at 20-21.) Fresh fingerprints lifted from the store's door shortly after the robbery matched Goss's and officers were able to obtain a search warrant for Goss's home and any car at the home. (Dkt. No. 48-1 at 317-18.) When officers executed the warrant, they found Goss hiding behind a washing machine. (Id. at 325.) They also found some of the stolen merchandise in a bedroom and a revolver covered in Mr. Ayazgok's blood in a car parked outside. (Dkt. Nos. 48-1 at 316-28, 48-2 at 28, 61.) Mack and Goss were arrested but the other three men were never identified.
In September 2007, the Charleston County Grand Jury indicted Goss for armed robbery, assault and battery with intent to kill (“ABWIK”), and kidnapping. (Dkt. No. 48-3 at 205-10.) Mack and Goss were tried together before the Honorable J.C. Nicholson in February 2009. (Dkt. No. 48-1 at 3.) Goss was represented at trial by attorney James Smiley. (Id.) The jury found Goss guilty as charged and Judge Nicholson sentenced him to twenty years imprisonment for each offense, to run concurrently. (Dkt. No. 48-3 at 45-46 (verdict), 55-56 (sentence).)
Goss filed a timely appeal presenting two issues:
I. Whether the trial court erred in overruling defense counsel's objection to the solicitor's burden shifting closing argument?
II. Whether the trial court erred in refusing to allow defense counsel to impeach the victim with a pending charge of counterfeiting goods?(Dkt. No. 48-3 at 69.) The South Carolina Court of Appeals affirmed Goss's convictions and sentence on May 17, 2011. State v. Goss, Op. No. 2011-UP-214 (S.C. Ct. App. May 17, 2011); (Dkt. No. 48-3 at 91-92).
Shortly thereafter, Goss filed a pro se application for post-conviction relief (“PCR”) alleging his trial counsel had been ineffective for failing to present an alibi defense, properly investigate the case, present reliable and credible rebuttal witnesses, and provide Goss with discovery material. (Dkt. No. 48-3 at 93-98, 102-09.) After briefing by the State, the Honorable Deadra L. Jefferson conducted an evidentiary hearing. (Dkt. No. 48-3 at 123-90.) Judge Jefferson heard testimony from Goss and his trial counsel. During his testimony, Goss explained how each of his potential alibi witnesses would have testified at trial. (Dkt. No. 48-3 at 140-43.) Those witnesses were present in the courtroom during the PCR hearing and had submitted affidavits, which Goss entered into evidence. (Dkt. No. 48-3 at 143-44.) Rather than have the witnesses testify at the hearing, Judge Jefferson took judicial notice that each of them, if called at trial, would have testified that Goss was at a baby shower during the robbery. (Dkt. No. 48-3 at 145.) Judge Jefferson denied and dismissed Goss's PCR application on November 23, 2011. (Dkt. No. 48-3 at 191-202.)
Goss appealed the decision (Dkt. No. 48-3 at 203) and the Court of Appeals affirmed (Dkt. No. 48-4). Goss filed a petition for rehearing, which the Court of Appeals denied. (Dkt. No. 48-5.) Goss appealed the Court of Appeals' decision through a petition for writ of certiorari (Dkt. No. 48-6), which the Supreme Court granted on October 19, 2017 (Dkt. No. 48-8). The court remanded the matter for a de novo PCR hearing, finding Judge Jefferson erred by taking judicial notice of the content of the alibi witnesses' testimony and then concluding those witnesses would not have been credible to a jury. (Dkt. No. 48-9 at 6.)
Before returning to circuit court for his second PCR hearing, Goss unsuccessfully sought relief from this Court and the Fourth Circuit Court of Appeals. See Goss v. Williams, C.A. 2:18-02938-BHH (federal habeas petition filed October 30, 2018 and dismissed without prejudice while Goss pursued PCR remedies on January 31, 2020); Goss v. Williams, No. 20-6181 (4th Cir. Filed Feb. 6, 2020) (appeal to the Fourth Circuit); Goss v. Kendell, 2:20-04133-BHH (federal habeas petition filed November 30, 2020 and summarily dismissed without prejudice on May 17, 2021); Goss v. Kendall, No. 21-6819 (4th Cir. Aug. 7, 2021) (unpublished) (denying Goss's appeal of the District Court's summary dismissal).
On December 8, 2021, the Honorable Jennifer B. McCoy held a second, de novo, PCR hearing. (Dkt. No. 48-10.) Judge McCoy granted Goss's motion to relieve his counsel and Goss proceeded pro se. (Dkt. No. 48-10 at 2-11.) Judge McCoy denied and dismissed Goss's PCR application on June 14, 2022. (Dkt. No. 48-11.)
Goss filed a pro se notice of appeal to the South Carolina Supreme Court, along with a motion to proceed pro se and to expedite review. (Dkt. No. 48-12.) The court denied both motions. (Dkt. No. 48-13.) Goss moved the court to reconsider his motion to proceed pro se and was informed the court did not entertain requests for rehearing on non-dispositive matters. (Dkt. No. 48-14.) Goss then attempted to file an amended pro se notice of appeal. (Dkt. No. 48-15.) On October 24, 2022, the South Carolina Supreme Court dismissed Goss's appeal based on his failure “to submit the name of an attorney or provide[] proof that he has filled out and submitted an affidavit of indigency with the Division of Appellate Defense” as the court had instructed in a September 19, 2022 letter. (Dkt. No. 48-16.) The matter was remitted to the lower court on November 9, 2022. (Dkt. No. 48-17.)
PROCEDURAL HISTORY
On January 12, 2022, prior to the conclusion of his PCR proceedings, Goss filed a petition for writ of habeas corpus in this matter. (Dkt. No. 1.) The undersigned initially recommended the petition be summarily dismissed. (Dkt. No. 5.) After the South Carolina Supreme Court dismissed his appeal, Goss moved this Court to reconsider its recommendation (Dkt. No. 18) and filed another habeas petition, which was docketed as a separate action (see Dkt. No. 1, Goss v. Warden, 2:22-cv-04048-BHH-MGB). The Court consolidated the two actions and instructed that both petitions be considered as a single pleading. (Dkt. No. 24.) Shortly thereafter, Goss filed an amended petition. (Dkt. No. 27.) The undersigned entered a text order instructing Goss that he must file a motion to amend along with his amended petition and giving him 30 days to do so. (Dkt. No. 28.) Goss filed a motion to reconsider the text order, arguing he was permitted to amend as a matter of course under the rules because he filed his amendment within 21 days of service of the petition and before the Warden filed a response. (Dkt. No. 30.) On December 15, 2022, the undersigned granted Goss's motion to reconsider and clarified that the amended petition was now “the controlling petition in this habeas action.” (Dkt. No. 31.)
Goss presents the following grounds for relief in his amended petition, quoted verbatim:
Ground One: Ineffective Assistance of Counsel
Supporting Facts: Trial counsel was ineffective for his improper argument during the directed verdict stage, where he conceded to Petitioner's case being submitted to the jury under the “hand of one, hand of all” theory [of accomplice liability] despite the State's failure to produce “any evidence” of a prior plan or scheme, or, of Petitioner's participation in the crime, which are essential elements of the criminal offense charged.
Ground Two:Ineffective Assistance of Counsel
Supporting Facts: Trial counsel was ineffective for failing to object to the “hand of one, hand of all” jury charge where there was “no evidence” in the record to support the charge. Additionally, the charge did not mention a prior plan or scheme; nor did it include instructions on mere presence.
Ground Three:Unfair Trial/Due Process Violation
Supporting Facts: The State failed to present “any evidence” or “sufficient evidence” of Petitioner's guilt [under the hand of one, hand of all theory] beyond a reasonable doubt.(Dkt. No. 27 at 5, 7, 8.)
LEGAL STANDARD
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)).
For instance, state prisoners who challenge matters “adjudicated on the merits in State court” cannot get relief in federal court unless they show that the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law” announced by the Supreme Court or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” § 2254(d). That means a state court's ruling must be “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. 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).
The ultimate issue in this case is, of course, whether Goss should receive habeas relief under these standards. However, the Warden's summary judgment motion and briefing presents narrower questions. Summary judgment is appropriate only if the moving party shows that “there is no genuine dispute as to any material fact” and that he 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). 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).
Viewing the habeas rules through the lens of Rule 56, the Court has three questions to answer at this juncture:
(1) Are there genuine issues of fact as to whether Goss's claims are properly before the Court?
(2) Are there genuine issues of fact as to the merits of Goss's claims?
(3) If the answer to either (or both) of the first two questions is “no,” is the Warden entitled to judgment as a matter of law?
In answering those questions, the undersigned has carefully considered the record before the Court.
DISCUSSION
I. Initial Matters
The Warden admits he missed the Court's text order allowing Goss to amend the petition and instructing that the amended petition was the controlling pleading. (Dkt. No. 58 at 1-2.) In addition, although aware of the Court's order consolidating the two previous petitions, the Warden misread the docket and apparently thought the two petitions raised the same grounds. (See Id. at 8.) As a result, the Warden's return only addresses the grounds raised in Goss's original petition filed in this matter, Dkt. No. 1. (See Dkt. No. 48.) Fortunately, two of the grounds in the original petition substantively mirror Grounds One and Two of the amended petition. (Compare Dkt. No. 1 with Dkt. No. 27.)
The Warden explains the court's text order was served on Senior Assistant Deputy Attorney General Melody Brown and Administrative Coordinator Angela Bennett, rather than the attorney assigned to this case, Assistant Attorney General Joseph Maye, and his paralegal, as all other filings had been. (Dkt. No. 58 at 2.) The electronic service landed in both recipients' junk mail folders and was not discovered until after Goss's cross-motion for summary judgment alerted the Warden to the issue. (Id.)
However, because the Warden failed to address Ground Three of the amended petition in his return, Goss has moved for summary judgment on that ground. (Dkt. No. 55.) In response, the Warden asserts both that Ground Three is procedurally defaulted because it was never ruled on by the state courts and that it lacks merit. (Dkt. No. 58 at 4-7.) As discussed more fully below, the undersigned finds Ground Three is procedurally defaulted and Goss fails to show there is no issue of material fact such that he is entitled to summary judgment on that claim. Thus, the undersigned recommends Goss's cross-motion for summary judgment be denied.
Goss says he is “narrow[ing] his habeas petition to this sole issue.” (Dkt. No. 55 at 6.) It is unclear whether Goss means he is abandoning Grounds One and Two and only proceeding on Ground Three. For the sake of completeness, the undersigned will address all three grounds for relief.
II. Goss's Motion to Strike and Motion in Limine
In addition, Goss has moved to strike any reference to a tip received by law enforcement shortly after the robbery that led to Goss's arrest. (Dkt. Nos. 63, 65.) Goss contends the evidence is inadmissible hearsay and its inclusion is a violation of the Sixth Amendment's Confrontation Clause because the person who provided the tip did not testify at trial. (Id.)
Goss's “Motion to Strike” (Dkt. No. 63) and “Motion in Limine” (Dkt. No. 65) make essentially the same argument.
At trial, Officer Olenthill Faison, the lead detective on the Urban Wear robbery case, testified that he received a tip from Lorenzo Johnson the night of the robbery. (Dkt No. 48-2 at 20-21.) Mr. Johnson identified Goss and Goss's brother as potential suspects. (Id. at 21.) Detective Faison explained that, based on that tip, the detectives were able to positively identify Goss's fingerprints at the scene and then obtain a search warrant for Goss's house. (Id.) When the tip was first mentioned, trial counsel requested a bench conference, after which the testimony was allowed to continue. (Id. at 20.)
Goss did not raise this issue in his PCR proceedings or his federal habeas petition, either as a stand-alone claim or an allegation of ineffective assistance of counsel. Thus, Officer Faison's testimony is an uncontested portion of the state court record and this Court must base its analysis on the record as it appeared before the PCR court. Further, “an out of court statement is not hearsay if it is offered for the limited purpose of explaining why a government investigation was undertaken.” United States v. Love, 767 F.2d 1052, 1063 (4th Cir. 1985); see also State v. Thompson, 575 S.E.2d 77, 81 (S.C. Ct. App. 2003) (explaining that an officer's testimony about a bystander's statements were not hearsay because they “were not entered for their truth but rather to explain and outline the officers' investigation and their reasons for going to” the defendant's home). Officer Faison's brief mention of the tip he received from Mr. Johnson was not meant to prove Goss was involved with the crime, but to explain why the detectives compared Goss's fingerprints to those found at the scene and then obtained a warrant to search his house. Thus, the testimony was not hearsay and Goss's Motion to Strike (Dkt. No. 63) and Motion in Limine (Dkt. No. 65) are DENIED.
III. Procedural Default Analysis
The Warden asserts all three of Goss's grounds for relief are procedurally defaulted. (Dkt. Nos. 48 at 15-17 (raising procedural default as to grounds one and three of the original petition), 58 at 3-6 (re-asserting procedural default as to Grounds One and Two and raising it as to Ground Three).) Goss raised Grounds One and Two to the PCR court but the South Carolina Supreme Court dismissed Goss's PCR appeal when he failed to obtain counsel, as instructed by the court. Accordingly, Goss failed to properly present Grounds One and Two to the state's highest court and is now barred from doing so by state procedural rules. Ground Three challenges the sufficiency of the evidence supporting Goss's conviction and should have been, but was not, raised on direct appeal.
“If a state court clearly and expressly bases its dismissal of a habeas petitioner's claim on a procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal, the habeas petitioner has procedurally defaulted his federal habeas claim.” Beard v. Pruett, 134 F.3d 615, 619 (4th Cir. 1998). Goss argues he properly “exhausted” his state court remedies and that the doctrine of procedural default is inapplicable because (1) he has a right to represent himself and cannot be forced to accept a state-appointed attorney against his will, (2) “South Carolina does not have a procedural rule that makes counsel . . . mandatory in a PCR appeal,” and (3) to the extent such a rule exists, it is not independent, adequate, or constitutional. (Dkt. No. 55 at 13-20.) Goss also asserts cause and prejudice to excuse the default, arguing “the State's interference with his constitutional rights made compliance with the State's procedure impracticable” and the “state process” unavailable to him as a pro se litigant. (Dkt. No. 55 at 20- 21.)
Goss is correct that he has exhausted his claims because he has utilized every step of the state court appellate process. However, those claims are still procedurally barred from federal review. While there is a right to self-representation at trial, there is no corresponding federal right to self-representation on appeal. See Martinez v. Court of Appeal of California, 528 U.S. 152, 162-64 (2000) (finding California did not deprive a defendant of a constitutional right by requiring him to accept a state-appointed attorney in his criminal appeal). Rather, that right is left up to the states. Id. at 163-64. In South Carolina, “there is no state constitutional provision which confers such a right” and the court has discretion over whether a party may proceed pro se. State v. Roberts, 614 S.E.2d 626, 629 (S.C. 2005). Accordingly, the court's requirement that Goss obtain counsel was not unconstitutional.
Goss argues Roberts is not applicable because it addresses criminal appeals, rather than PCR appeals, and does not establish a firm rule requiring counsel. (Dkt. No. 55 at 16.) Even the right to self-representation at trial is not absolute. Faretta, 422 U.S. at 807. And PCR, as a statutory mechanism, is constructed of discretionary state rules. See Dennison v. State, 639 S.E.2d 35, 35 (S.C. 2006) (“Unlike review of a conviction, which is by direct appeal and is a constitutional right, review of a decision in a PCR matter is discretionary by way of a writ of certiorari.”); S.C. Code. Ann. § 17-27-100 (“A final judgment entered under this chapter may be reviewed by a writ of certiorari as provided by the South Carolina Appellate Court Rules.”). Petitioner's bare assertion that these rules are not independent or adequate is not enough to show cause and prejudice to overcome the procedural default he brought on himself. The South Carolina Supreme Court used the discretion granted it under Roberts and applicable statutory authority and declined to allow Goss to proceed pro se in his PCR appeal. The court's decision to dismiss Goss's appeal for his failure to comply with its instructions was based entirely on state law grounds and did not violate any of Goss's state or federal constitutional rights.
Regarding Ground Three, as a challenge to the sufficiency of the evidence, this ground should have been raised on direct appeal. See Grubb v. Murray, 978 F.2d 1254, at *1 (4th Cir. 1992) (table) (noting the petitioner's sufficiency of the evidence claim was properly presented on direct appeal). Goss failed to present this issue on direct appeal but did raise it in an amended PCR application. (See Dkt. No. 58 at 5 (the Warden admitting Goss raised this claim in an amended pro se PCR application).) However, PCR is not a substitute for direct review and the issue was not discussed at the subsequent evidentiary hearing or in the PCR court's order and was thus not ruled on by the state courts. S.C. Code Ann. § 17-27-20(b) (“This remedy is not a substitute for nor does it affect any remedy incident to the proceedings in the trial court, or of direct review of the sentence or conviction.”); See also Dkt. Nos. 48-10 (hearing transcript), 48-11 (PCR court's order). Moreover, for the reasons discussed below, Goss fails to show this claim has merit and thus fails to show prejudice.
Finally, Goss contends the court should excuse the default because Goss is actually innocent of the underlying crime. (Dkt. No. 55 at 21.) A credible claim of actual innocence accompanied by a constitutional error “requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Goss submits that testimony from his trial counsel at the PCR hearing constitutes “new reliable evidence” under Schlup. That evidence was considered by the PCR court and is thus not “new” for purposes of an actual innocence claim.
Accordingly, all three of Goss's grounds for relief are procedurally defaulted, Goss has failed to show reason to excuse that default, and the undersigned recommends granting the Warden's motion for summary judgment on that basis. However, for the sake of completeness, the undersigned will also address the merits of each ground.
IV. Merits Analysis
A. Grounds One and Two - Ineffective Assistance of Counsel
In Grounds One and Two, Goss argues his trial counsel was ineffective for making an “improper argument during the directed verdict stage” by “conced[ing] to petitioner's case being submitted to the jury under” South Carolina's “hand of one, hand of all” theory of accomplice liability and failing to object to the trial court's jury charge on that theory. (Dkt. No. 27 at 5, 7.) In addition to pleading procedural default, the Warden asserts the PCR court properly denied these claims. (Dkt. Nos. 48 at 23-28, 58 at 3-4.)
The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). A petitioner proves ineffective assistance by showing his attorney's performance was deficient and 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 [Goss'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 Goss's claims. As such, the undersigned considers the PCR court's reasoning in analyzing Goss's grounds for relief.
“Under the ‘hand of one is the hand of all' theory [of accomplice liability], one who joins with another to accomplish an illegal purpose is liable criminally for everything done by his confederate incidental to the execution of the common design and purpose.” State v. Condrey, 562 S.E.2d 320, 324 (S.C. Ct. App. 2002). The State's case against Goss relied almost entirely on this theory of liability.
Regarding trial counsel's motion for directed verdict, the PCR court found as follows:
This Court has reviewed the relevant portion of the transcript and finds no deficiency in Counsel's handling of this motion. Counsel credibly testified he argued for a directed verdict as to all three charges - assault and battery with intent to kill, armed robbery, and kidnapping - raising the issues of whether the State had sufficiently proved Applicant was present during the robbery and whether the State had proved a link to Applicant and the gun used in the incident. At trial during his motion, Counsel noted the victim in the case, when asked directly, testified Applicant was not present in the store during the armed robbery. In response, the trial court stated it believed Counsel's interpretation of the victim's testimony was a play on words. The trial court further noted victim's testimony was not contradictory to the State's case because though victim testified he did not see Applicant in the store, he knew there were four black males who he did not know present at the time of the incident. Counsel further argued during his motion to the trial court that the State could only pursue this case under the hand of one, hand of all theory, and to do so, must show Applicant was a planner or some kind of accessory. Counsel argued the State had produced no evidence to place Applicant at the store during the robbery, nor had the State shown any link between the State's evidence and the Applicant. The trial court denied the motion for a directed verdict. At the close of the Defense's case, Counsel renewed the motion for directed verdict and the trial judge declined to change his ruling.
When considering a motion for a directed verdict, the trial court is concerned with the existence or nonexistence of evidence, not its weight. State v. Larmand, 415 S.C. 23, 30, 780 S.E.2d 892, 895 (2015). If there is any direct or circumstantial evidence reasonably tending to prove the guilt of the accused, the appellate court must affirm the trial judge's ruling. State v. Cherry, 361 S.C. 588, 593-94, 606 S.E.2d 475, 478 (2004). This Court finds there were clear factual issues for the jury to consider at the close of the State's case; the trial court correctly denied the motion. Therefore, this Court finds no deficiency with Counsel's handling of the motion and further finds Applicant did not suffer prejudice.(Dkt. No. 48-11 at 23-24 (some citations omitted).)
And, regarding counsel's decision not to object to the trial court's charge to the jury concerning “hand of one, hand of all” accomplice liability, the PCR court found:
At the evidentiary hearing, Counsel credibly testified he did not believe the hand of one, hand of all charge was objectionable at the time of trial. Counsel further
testified his defense was to show the State had not met their burden - specifically, that the State did not have any direct evidence linking Applicant to the incident. Counsel testified he believed he had a thorough, well-thought-out defense and that he presented each piece of circumstantial evidence to the jury, attempting to show there were other reasonable explanations for the evidence.
This Court finds Applicant has failed to meet his burden and finds no deficiency on the part of Counsel nor prejudice therefrom in regards to this allegation. Evidence in the record supports a charge on the hand of one is the hand of all and the charge was appropriately given to the jury. Therefore, this Court finds Counsel would have had no valid basis for an objection to the instruction. Accordingly, this Court finds Counsel was not deficient for failing to object to the charge given, finds Applicant was not prejudiced by Counsel's failure to object to the jury charge, and dismisses this allegation.(Dkt. No. 48-11 at 27.)
Goss does not allege specific error with the PCR court's analysis but rather reasserts his claims as they were presented to the state court. After a thorough review of the record and relevant law, the undersigned finds the PCR court applied the correct legal standards and based its decision on a reasonable interpretation of the facts before it.
Under Strickland, a reviewing court “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” 466 U.S. at 689. Goss failed to overcome that presumption.
It is clear from the record and Goss's submissions to this Court that he does not believe the State met its burden of proof under the hand of one is the hand of all theory of accomplice liability. Goss's trial counsel also believed this was his strongest defense and thus argued it to the court in his motion for directed verdict. (See Dkt. No. 48-10 at 44, 46-48, 51.) At the evidentiary hearing, Goss asserted his trial counsel “argued the wrong issue” because he based his motion on the State's lack of evidence showing Goss was the principal actor and conceded that the only way the case could go to a jury was under the hand of one is the hand of all theory of accomplice liability. (Dkt. No. 48-10 at 14-15.) Goss asserted trial counsel should have made specific arguments that the evidence presented failed to show a common plan or that Goss participated in the crime. (Id. at 16-25.) Trial counsel testified that he did, in fact, make those arguments and that testimony is supported by the trial transcript. (See Dkt. Nos. 48-10 at 46-48, 52-57 (evidentiary hearing testimony), 48-2 at 95-104 (directed verdict motion).) Trial counsel also made those same arguments to the jury in closing, breaking down each piece of circumstantial evidence against Goss. (Dkt. No. 48-2 at 137-45.) Thus, Goss has failed to identify a specific deficiency in counsel's argument and merely expresses disagreement with the trial court's ruling on counsel's motion.
Concerning the jury charge, Goss argued counsel should have objected because the charge did not instruct the jury that hand of one is the hand of all requires the parties to have made a common scheme or plan. (Dkt. No. 48-10 at 58-59.) The jury charge stated:
I charge you that it's the law of this state that if a crime is committed by two or more persons who have acted together in the commission of an offense, the act of one is the act of all. By way of illustration, two people can be guilty of killing another of murder only when one of the two had a pistol and only one bullet. If both together, acting together, assisting each other in the crime of the offense, the law says that under those circumstances the act of one is the act of all, and, as it is sometimes said, the hand of one is the hand of all.(Dkt. No. 48-3 at 30.) Trial counsel agreed the charge did not include specific language about a common plan or scheme and that it was a “bare” charge, even stating he would now, eleven years later, probably argue against it. (Dkt. No. 48-10 at 59-60.) However, counsel stated that, at the time, he did not believe the charge was objectionable. (Id. at 61.) The PCR court agreed the charge was not objectionable and was supported by the evidence. (Dkt. No. 48-11 at 27.) “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (same). Nor does this court have reason to question the PCR court's finding. See e.g., State v. Smith, 446 S.E.2d 411, 415 (S.C. 1994) (“The substance of the law is what must be instructed to the jury, not any particular verbiage.”). And, because the charge was not objectionable, trial counsel could not be ineffective for failing to object.
For these reasons, the undersigned recommends granting summary judgement for the Warden on Grounds One and Two.
B. Ground Three - Due Process Violation
In Ground Three, Goss alleges his trial was unfair and resulted in a denial of due process because the State failed to present “any evidence” or “sufficient evidence” of his guilt under the hand of one is the hand of all theory of accomplice liability. (Dkt. No. 27 at 8.) As discussed above, Goss presented this claim in one of his amended PCR applications, but it was not raised at the PCR hearing and the PCR court did not address it in the order of dismissal. The Warden argues both that this claim is defaulted and lacks merit. (Dkt. No. 58 at 4-7.)
“Though claims of insufficient evidence are cognizable on collateral review, a federal court's review of such claims is ‘sharply limited.'” Wilson v. Greene, 155 F.3d 396, 405 (4th Cir. 1998) (quoting Wright v. West, 505 U.S. 277, 296 (1992)). “[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, 325 (1979)). That rigorous standard “must be applied with explicit reference to the substantive elements of the criminal offense” at issue. Jackson, 443 U.S. at 324, n.16. According to South Carolina law, “[u]nder the ‘hand of one is the hand of all' theory, one who joins with another to accomplish an illegal purpose is liable criminally for everything done by his confederate incidental to the execution of the common design and purpose.” State v. Condrey, 562 S.E.2d 320, 324 (S.C. 2002). “Under an accomplice liability theory, ‘a person must personally commit the crime or be present at the scene of the crime and intentionally, or through a common design, aid, abet, or assist in the commission of that crime through some overt act.'” Id. at 325 (quoting State v. Langley, 515 S.E.2d 98, 101 (S.C. 1999)). “A formally expressed agreement is not necessary to establish the conspiracy.” Id. Rather, “[i]t may be shown by circumstantial evidence and the conduct of the parties.” Id.
The evidence against Goss included testimony from the victim that five African American men entered the store together, where the victim was beaten and bound and merchandise was stolen. (Dkt. No. 48-1 at 1171-78.) Law enforcement received a tip that Goss was one of the men involved. (Dkt. No. 48-2 at 20-21.) Crime scene investigators found Goss's fingerprints on the store's door and testified the prints were so “wet” and fresh that they had to wait for them to dry before lifting them for analysis. (Dkt. No. 48-1 at 317-18.) When the police executed a search warrant at Goss's home, they found Goss hiding behind a washing machine. (Id. at 325.) They also found merchandise from the clothing store in the house and a pistol with the victim's DNA on it in a car parked outside the house. (Dkt. Nos. 48-1 at 316-28, 48-2 at 28, 61.)
Goss continues to offer explanations for the evidence against him. He admits he was at the store at some point, though not during the robbery, and points out that several other people lived at his house, including other African American men, and that he did not drive or own the car in which the bloody gun was found. (Dkt. Nos. 55 at 25-27, 59 at 5-6.) Trial counsel made each of these arguments to the jury through cross-examination and in his closing argument and the jury voted to convict Goss. Goss offers no additional reasons to question the sufficiency of the evidence against him and the undersigned finds the evidence was enough to suggest to a reasonable trier of fact that Goss could have been one of the five men involved in the crime, all of whom clearly entered the store with a plan and acted in concert. Accordingly, the undersigned recommends granting summary judgment for the Warden on Ground Three.
Certificate of Appealability
If the Warden'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
For the above reasons, the undersigned denied Goss's motion to strike (Dkt. No. 63) and motion in limine (Dkt. No. 65) and recommends the Court grant the Warden's motion for summary judgment (Dkt. No. 49), deny Goss's cross-motion for summary judgment (Dkt. No. 55), 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).