Opinion
C/A 4:22-cv-4291-TLW-TER
04-29-2024
MARVIN BOWENS GREEN, Petitioner, v. TANYA JAMES, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge
Petitioner, Marvin Bowens Green (Petitioner), appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 29, 2022. (ECF No. 1). On July 5, 2023, Respondent filed a motion for summary judgment along with a return and memorandum. (ECF Nos. 32 and 33). The undersigned issued an order filed July 6, 2023, 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. 34). Respondent also filed a motion to strike on July 5, 2023. (ECFNo. 31). Petitioner filed a response to the motion for summary judgment on August 9, 2023, and Respondent filed a reply on August 16, 2023.
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
The undisputed procedural history will be set out below, in part, as set forth by the Respondent.
Petitioner is presently confined in the Kershaw Correctional Center of the South Carolina Department of Corrections pursuant to Orders of Commitment of the Clerk of Court for Charleston County. Petitioner was indicted by the Charleston County Grand Jury for armed robbery and possession of a firearm during the commission of a violent crime. He was represented by Andrew Grimes and Cody Groeber. Petitioner proceeded to trial before the Honorable Kristi L. Harrington and a jury on June 11, 2012. The State served a notice of intention to seek a sentence of life without parole, under the State's two-strike law. On January 5, 2012, the jury found Petitioner guilty as indicted and Judge Harrington sentenced Petitioner to five years' incarceration on the weapon charge and life without the possibility of parole on the armed robbery charge. Petitioner filed a motion for a mistrial and a motion to vacate the sentence, but both motions were denied.
Direct Appeal
Petitioner filed a timely notice of appeal and a direct appeal was perfected raising the following grounds for relief in the brief on March 25, 2014:
I. Violating Appellant's Sixth Amendment right to a fair trial, the trial judge erred in failing to provide the jury with specific instruction concerning how to analyze the evidence presented concerning the identification of Appellant as the perpetrator, including expert testimony on the subject, significant language barriers between the police officers and the eyewitnesses who participated in the photographic line-up, and the use of surveillance video to make an identification.
II. The trial judge erred in allowing the prosecution to introduce Appellant's mug shot where no demonstrable need of the mug shot was established, the mug shot was unnecessary and cumulative to the prosecution's case, and the mug shot prejudiced Appellant by suggesting to the jury that Appellant had a prior criminal record.
III. Violating the Eighth Amendment's ban on cruel and unusual punishment, the trial court erred in sentencing Appellant to life imprisonment without the possibility of parole pursuant to the state's recidivist statute because Appellant's prior conviction was committed when he was seventeen-years old.(ECF No. 32-3 at 2). Petitioner's convictions were affirmed on appeal, and the court found that Petitioner's second armed robbery was committed when Petitioner was no longer a juvenile. State v. Green, 770 S.E.2d 424 (Ct. App. 2015). (ECF No. 32-5).
Petitioner petitioned the Supreme Court of South Carolina for a writ of certiorari. (ECF No. 32-5). In the petition, Petitioner raised the following arguments:
I. The Court of Appeals erred in affirming the trial judge's refusal to provide the jury with specific instructions concerning how to analyze the evidence presented concerning the identification of Petitioner as the perpetrator, including expert testimony on the subject, in violation of Petitioner's Sixth Amendment right to a fair trial.
II. The Court of Appeals erred in affirming the trial judge's ruling to allow the prosecution to introduce Petitioner's mug shot where no demonstrable need of the mug shot was established, the mug shot was unnecessary and cumulative to the prosecution's case, and the mug shot prejudiced petitioner by suggesting to the jury that petitioner had a prior criminal record.
III. The Court of Appeals erred in affirming Petitioner's sentence of life imprisonment without the possibility of parole pursuant to the state's recidivist statute whether such a sentence violated the Eighth Amendment's ban on cruel and unusual punishment because Petitioner's prior conviction was committed when he was seventeen-years old.(ECF No. 32-6 at 2). By opinion decided September 3, 2015, the Supreme Court denied the petition for writ of certiorari. (ECF No. 32-9).
PCR Action
Petitioner filed an application for post-conviction relief (PCR) on December 18, 2015. Petitioner was represented by Christopher Murphy, Esquire. As the court discussed in the order of dismissal, Petitioner raised the following grounds: Ineffective Assistance of Trial Counsel:
a. Counsel rendered ineffective assistance of counsel by failing to object to the solicitor's comments vouching for the credibility of State's witnesses during closing arguments when he stated:
b. Counsel failed to object to the perjured testimony of Charles Lawrence and Deputy Dustin Luckadoo.
c. Counsel was ineffective for advising Applicant not to testify.(ECF No. 32-2 at 292-294).
On September 7, 2016, the State filed a return and motion to dismiss based upon the belief that Petitioner's PCR application was a successive filing from his first armed robbery conviction. (ECF No. 32-2 at 295). The PCR court entered a conditional order of dismissal on October 4, 2016. (ECF No. 32-2 at 301).
Petitioner filed a pro se response to the conditional order of dismissal noting that his application referred to a different armed robbery conviction from the same county; therefore the application was not successive. (ECf No. 32-2 at 306). On January 24, 2017, the State filed an amended return and motion to vacate the conditional order of dismissal. (ECF No. 32-2 at 309). An Order vacating the conditional order of dismissal was filed on February 3, 2017. (ECF No. 32-2 at 316).
An evidentiary hearing was convened on May 21, 2018, before the Honorable Roger M. Young, Sr. Petitioner and one member of his defense team testified at the evidentiary hearing. (ECF No. 32-2 at 319-368). The PCR noted that Petitioner proceeded on the claims in his original application as well as allegations of ineffective assistance of counsel for failing to investigate and present an alibi defense, and for failing to have Petitioner evaluated by a mental health professional.
At the conclusion of the hearing, the PCR court agreed to hold the record open for thirty days so that PCR counsel could provide the court with information regarding Petitioner's contention that he was ordered to wear an ankle monitor prior to the time of the robbery which would have proven he was not at the scene of the crime. (ECF No. 32-2 at 367). The PCR court issued its Order of Dismissal on August 23, 2018. (ECF No. 32-2 at 374-399).
Petitioner filed his Petition for Writ of Certiorari on June 27, 2019, raising the following issue on appeal:
Whether the PCR court erred in denying relief, where trial counsel admitted he should have objected to an emotional plea to the jury by the solicitor during closing arguments in an armed robbery trial, where the remarks also suggested that the trial was a search for the truth and bolstered the credibility of eyewitnesses, and where Petitioner received a life sentence without the possibility of parole?(ECF No. 32-10 at 3).
On November 12, 2019, the State filed its Return. The South Carolina Supreme Court transferred the matter to the South Carolina Court of Appeals. (ECF No. 32-12 at 1). On March 14, 2022, the South Carolina Court of Appeals denied certiorari. (ECF No. 32-13). The Remittitur was issued on April 8, 2022. (ECf No. 32-14).
Petitioner filed this petition for writ of habeas corpus on November 29, 2022.
HABEAS ALLEGATIONS
Petitioner raised the following allegations in his petition, quoted verbatim:
GROUND ONE: Ineffective assistance of PCR counsel, violation of Sixth amendment guarantee to effective assistance of counsel.
Supporting Facts: PCR Counsel rendered ineffective assistance by failing to comply with the instructions of the Courts. PCR court left the record open for 30 days so PCR Counsel could follow up on the GPS issue. PCR Court further stated that PCR Counsel was to let the Court know what his findings are. Petitioner provided PCR Counsel with the documentation proving the existence of the GPS and PCR Counsel failed to submit the documents to the courts.
GROUND TWO: Denied right to due process and a violation against Eighth amendment cruel and unusual punishment
Supporting Facts: Petitioner has been sentenced to an unconstitutional life sentence. Petitioner's life sentence is due to the two-strike law. However, at the time of the triggering offense Petitioner was only a seventeen year old child. Petitioner's case was not handled in accordance with the law's that govern juvenile arrest and convictions. Therefore, the life sentence should be procedurally improper and voided.
GROUND THREE: Denied right to due process of law and the right to a fair trial protected by the fifth and sixth amendment
Supporting Facts: Prosecutor repeatedly vouched for the credibility of the state's witness during closing arguments and also bolstered the testimony.
GROUND FOUR: Denied right to due process of law and denied right to fair trial.
Supporting Facts: Prosecutor used a known corrupt detective (Charles Lawrence) (whom was later fired for lying to superiors) to obtain the conviction. The case had little physical evidence and relied heavily on testimonial evidence. Petitioner made it known during trial to his public defenders that the testimony given by Charles Lawrence regarding their relationship was false. And that petitioner was not acquainted with Lawrence as described by Lawrence.(ECF No. 1)(errors in original).
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).
PROCEDURAL BAR
The United States Supreme Court has clearly stated that the procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts, Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings, if a state has procedural rules which bar its courts from considering claims not raised in a timely fashion. The two routes of appeal in South Carolina are described above, (i.e., direct appeal, appeal from PCR denial) and the South Carolina Supreme Court will refuse to consider claims raised in a second appeal which could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court.
If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. State procedural rules promote
. . . not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984).
Although the federal courts have the power to consider claims despite a state procedural bar,
. . . the exercise of that power ordinarily is inappropriate unless the defendant succeeds in showing both “cause” for noncompliance with the state rule and “actual prejudice” resulting from the alleged constitutional violation.Smith v. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. at 84 (1977)). See also Engle v. Isaac, 456 U.S. 107, 135 (1982).
Stated simply, if a federal habeas Petitioner can show (1) cause for his failure to raise the claim in the state courts, and (2) actual prejudice resulting from the failure, a procedural bar can be ignored and the federal court may consider the claim. Where a Petitioner has failed to comply with state procedural requirements and cannot make the required showing(s) of cause and prejudice, the federal courts generally decline to hear the claim. See Murray v. Carrier, 477 U.S. 478, 496 (1986).
Even if a Petitioner cannot demonstrate cause and prejudice for failure to raise a claim, he can still overcome procedural default by showing a miscarriage of justice. In order to demonstrate a miscarriage of justice, a petitioner must show he is actually innocent. See Carrier. 477 U.S. at 496 (holding a fundamental miscarriage ofjustice occurs only in extraordinary cases, “where a constitutional violation has probably resulted in the conviction of someone who is actually innocent”). Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 623 (1998). To meet this actual innocence standard, the petitioner's case must be truly extraordinary. Carrier, 477 U.S. at 496.
Respondent submits that Petitioner is not in violation of the AEDPA one-year of statute of limitations.
Respondent asserts that Petitioner's Ground one is not a cognizable claim for federal habeas relief and Grounds Three and Four are procedurally barred.
Ground One
In Ground One, Petitioner argues ineffective assistance of PCR counsel. This issue should be dismissed as “the ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under Section 2254.” 28 U.S.C.A. § 2254(i) (West Supp.2001). It is well-established that the petitioner possesses no constitutional right to appointed counsel in post-conviction proceedings. See Wise v. Williams, 982 F.2d 142, 144 (4th Cir. 1992) (“There is no constitutional right to an attorney in state post-conviction proceedings.”) (citing Coleman v. Thompson, 501 U.S. 772, 752 (1991)). Moreover, deficiencies in a post-conviction proceeding are not cognizable under 28 U.S.C. § 2254. Heyward v. Burtt, 2007 WL 2021888 (D.S.C. July 6, 2007) citing Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990 (1987); and Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir.1988). Further, a habeas court cannot grant relief based on errors occurring during state collateral review proceedings. See Wright v. Angelone, 151 F.3d 151, 159 (4th Cir.1998). Accordingly, it is recommended that Respondent's motion for summary judgment be granted as to Ground One.
Ground Two
In Ground Two, Petitioner argues he was denied the right to due process and “A violation against Eighth Amendment cruel and unusual punishment.” (ECF No. 1 at7. Petitioner asserts that he was sentenced to an unconstitutional life sentence due to the two-strike law. Specifically, Plaintiff argues that at the time of the triggering offense, he was only seventeen years old and his case was not handled in accordance with the laws that govern juvenile arrest and conversion.
This issue was raised and addressed by the South Carolina Court of Appeals in its decision of March 11, 2015. The State Court of Appeals held the following:
The trial court did not err in sentencing Green to LWOP for armed robbery under the recidivist statute. At the time of sentencing for his current armed robbery conviction, Green had a prior conviction for armed robbery. Although Green was seventeen years old when he committed the prior armed robbery, he was tried and convicted of that offense as an adult in general sessions court. Based on Standard, because Green was tried and adjudicated as an adult, his prior armed robbery conviction is a "conviction" for purposes of section 17-25-45. Moreover, armed robbery is a "most serious offense" under subsection 17-25-45(C)(1). Because Green had a prior conviction for a "most serious offense," the trial court was required to sentence him to LWOP once Green was convicted of the current armed robbery. See § 17-25-45(C)(1) (stating a person convicted of a "most serious offense" "must be sentenced to [LWOP] if that person has . . . one or more prior convictions for . . . a most serious offense" (emphasis added)). Thus, the
trial court did not err in sentencing Green to LWOP for armed robbery under section 17-25-45.
We find Green's sentence of LWOP for armed robbery does not constitute cruel and unusual punishment. Initially, we note that although Green was seventeen years old when he committed the offense that led to his prior conviction, he is considered a "juvenile" at the time of the prior offense for purposes of our analysis. See Aiken v. Byars, 410 S.C. 534, 537 n.1, 765 S.E.2d 572, 573 n.1 (2014) (recognizing "Miller extends to defendants under eighteen years of age and therefore for the purposes of this opinion we consider juveniles to be individuals under eighteen"). Thus, the trial court erred in finding Green was not a juvenile at the time of his prior conviction. Nevertheless, the trial court did not err in finding Green's sentence did not constitute cruel and unusual punishment because our appellate courts have rejected the argument that it is cruel and unusual punishment to use prior convictions for offenses committed as juveniles for sentencing enhancement under section 17-25-45. See Standard, 351 S.C. at 204, 569 S.E.2d at 328; Williams, 380 S.C. at 345-46, 669 S.E.2d at 645. We note that this case is somewhat different from Standard because there the defendant had finished serving the sentence for his first offense prior to committing the second offense that led to his LWOP sentence. 351 S.C. at 201, 569 S.E.2d at 326-27. Here, however, Green had not yet served his first sentence for armed robbery prior to committing the second armed robbery that led to his LWOP sentence. This is an important consideration because one theory of the recidivist statute is to punish "persons who continue to commit criminal, antisocial behavior after incarceration for an earlier offense." State v. Benjamin, 353 S.C. 441, 446, 579 S.E.2d 289, 291 (2003) (Waller, J., dissenting) (emphasis added). Nevertheless, our supreme court has never held that a defendant must finish serving his first sentence before he may be sentenced to LWOP under the recidivist statute based on a subsequent conviction for a most serious offense.
We also find Green's reliance on Miller is misplaced. Although Miller held that mandatory LWOP sentences for juveniles violate the Eighth Amendment, Green was twenty years old at the time of sentencing; therefore, he was not a juvenile when he was sentenced to LWOP.
Miller's holding was based, in part, on the "recklessness, impulsivity, and heedless risk-taking" of children; however, because Green was not a juvenile at the time he committed the current armed robbery, the policy considerations from Miller are inapplicable. 132 S.Ct. at 2458; see also Aiken, 410 S.C. at 541-42, 765 S.E.2d at 576 ("[T]he Court in Miller noted that . . . children were constitutionally different from adults for sentencing purposes, a conclusion that was based on common sense as well as science and social science."). Therefore, Green's LWOP sentence did not violate the Eighth Amendment.(ECF No. 32-5 at 15-17). The State Court of Appeals found that even though Petitioner was seventeen years of age at the time he committed the prior armed robbery, he was tried and convicted of that offense as an adult in general sessions court. The court found that based on state law in Standard, because Green was tried and adjudicated as an adult, his prior armed robbery conviction is a "conviction" for purposes of section 17-25-45. The State Court of Appeals found that even if Petitioner was considered a "juvenile" at the time of the prior offense for purposes of their analysis, the trial court did not err in finding Green's sentence did not constitute cruel and unusual punishment “because our appellate courts have rejected the argument that it is cruel and unusual punishment to use prior convictions for offenses committed as juveniles for sentencing enhancement under section 17-25-45. See Standard, 351 S.C. at 204, 569 S.E.2d at 328; Williams, 380 S.C. at 345-46, 669 S.E.2d at 645.” (ECF No. 32-5 at 17). Additionally, the court noted that Petitioner was twenty years old at the time of sentencing wherein he received LWOP; therefore, Petitioner was not a juvenile at the time he committed the armed robbery for which he received the sentence of LWOP. (Id.). Thus, the South Carolina Court of Appeals held that Petitioner's sentence of LWOP for armed robbery does not constitute cruel and unusual punishment since he was not a juvenile at the time of the sentencing and, thus, the LWOP sentence did not violate the Eighth Amendment.
There has been no authority presented that clearly established federal law prohibits LWOP sentencing or makes sentencing conditional upon a petitioner only having a prior sentence for a charge committed as an adult not a juvenile. Therefore, the State Court of Appeals decision was reasonable. Although Miller held that mandatory LWOP sentences for juveniles violate the Eighth Amendment, Green was twenty years old at the time of sentencing; therefore, he was not a juvenile when he was sentenced to LWOP.
The South Carolina Court of Appeals also noted that while Petitioner had not yet served his first sentence for armed robbery prior to committing the second armed robbery that led to his sentence of LWOP, the supreme court has never held that a defendant must finish serving his first sentence before he may be sentenced to LWOP under the recidivist statute based on a subsequent conviction for a most serious offense. (ECF No. 32-5 at 17).
The Petitioner has failed to show that the state court's rejection of this claim was contrary to, or involved an unreasonable application of, clearly established federal law. The undersigned also finds Petitioner failed to establish that the state courts' rulings resulted in a decision that was based on an unreasonable determination of the facts. Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (holding that federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it resulted in a decision that was an unreasonable determination of the facts based on the evidence presented in the state court proceeding); Williams v. Taylor, 529 U.S. 420 (2000); Bell v. Jarvis, 236 F.3d 149, 157-58 (4th Cir. 2000); 28 U.S.C. § 2254(e)(1) (finding the determination of a factual issue by the state court shall be presumed correct unless rebutted by clear and convincing evidence). Accordingly, the undersigned recommends Respondent's motion for summary judgment be granted as to Ground Two.
Ground Three
In Ground Three, Petitioner argues that the prosecutor repeatedly bolstered and vouched for the credibility of the State's witness during closing arguments in violation of his right to due process and a fair trial pursuant to the Fifth and Sixth Amendments. Respondent argues that this issue is procedurally defaulted as it was not raised to the State's highest court. The undersigned agrees that this issue is procedurally defaulted. The issue as raised in this habeas petition was not presented to the South Carolina Supreme Court. South Carolina state courts would find this type claim procedurally defaulted if Petitioner attempted to raise it now because Petitioner did not present this claim to the South Carolina Supreme Court for review. Thus, Petitioner's claim as presented in Ground Three is procedurally barred from federal habeas review absent a showing of cause and actual prejudice, or by showing actual innocense. Wainwright v. Sykes, 433 U.S. 72, 87, 90-91 (1977).
Petitioner fails to address, must make a showing to challenge, Respondent's argument that this claim is procedurally defaulted. This issue was not raised in the direct appeal and petition for writ of certiorari. Therefore, Respondent's motion should be granted. Therefore, it is recommended that Ground Three be dismissed as procedurally defaulted.
Respondent points out that Petitioner raised in his PCR application that counsel was ineffective for failing to object to the bolstering arguments during closing arguments. Therefore, Respondent addressed the fact that the PCR Court provided a thorough recitation of the portions of the closing argument that trial counsel failed to object and Petitioner believed were in error and lacked objection from trial counsel. Even though Petitioner did not couch his habeas allegation as one of ineffective assistance of counsel but one of prosecutorial misconduct for vouching, out of an abundance of caution, the undersigned reviewed the PCR court's ruling on this allegation since Petitioner mentioned ineffective assistance of counsel in his response to summary judgment. After a thorough recitation of the portions of the closing argument Petitioner addressed at PCR and the law with regard to closing argument by solicitors (ECF No. 32-2 at 390-394), the PCR court concluded that the solicitor's closing argument in this case was within the confines of the record and the reasonable inferences therefrom. Further, the PCR court concluded that the arguments were based upon the witness's personal familiarity with Petitioner based on prior dealings and encounters. (ECF No. 32-2 at 393)Additionally, the PCR court found that Petitioner failed to establish any resulting prejudice from the alleged deficiencies and the comments as to the credibility of witnesses were linked to the record evidence and were not improper. The PCR court concluded that the “[t]he solicitor's comments made during closing were merely an invited response from the defense-that the jury should believe the witnesses because their identifications of Applicant were not wrong.” (Id. at 394). Thus, the PCR court found that Petitioner failed to satisfy either of the necessary prongs under Strickland. 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. 28 U.S.C. § 2254(d)(2). “An unreasonable determination of the facts is not merely an incorrect determination, but one ‘sufficiently against the weight of the evidence that it is objectively unreasonable.'” Gray v. Zook, 806 F.3d at 790, citing Winston I, 592 F.3d at 554. Review under Section 2254(d)(2) is informed by Section 2254(e)(1), which gives a presumption of correctness to state court factual findings. See 28 U.S.C. § 2254(e)(1); see also Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (“We . . . accord state court factual findings a presumption of correctness that can be rebutted only by clear and convincing evidence.”) (citing 28 U.S.C. § 2244(e)(1)). Because Petitioner fails to show an incorrect application of Strickland or an unreasonable determination of the facts, the PCR court's rejection of Petitioner's claim of ineffective assistance of counsel as to this issue did not result “in a decision that was contrary to . . . clearly established Federal law, . . . or resulted in a decision that 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); Williams v. Taylor, 529 U.S. at 404-05.
Ground Four
In Ground Four, Petitioner argues that Detective Lawrence gave perjured testimony thereby denying him the right to due process of law and right to a fair trial. Respondent argues that this issue is procedurally barred. This court agrees. This issue was not raised on direct appeal or to the State's highest court. Therefore, it is recommended that Ground Four be dismissed as procedurally defaulted.
Again, Respondent notes that an issue of ineffective assistance of counsel for failing to object to the perjured testimony of Detective Lawrence was raised to the PCR court and discussed on the merits. However, the Petitioner did not raise his habeas allegations as one of ineffective assistance of counsel and in his response to summary judgment. Petitioner argues that Detective Lawrence falsely testified and that “his Sixth amendment right to a fair trial as the State enticed a witness whom it knew was not credible.” (ECF No. 37 at 5). Further, the court notes that this issue was not raised in the PCR appeal and would be procedurally barred.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's motion for summary judgment (ECF No. 33) be GRANTED in its ENTIRETY, and the petition be dismissed without an evidentiary hearing.
On July 5, 2023, Respondent filed a motion to strike in tandum with filing its motion for summary judgment and return and memorandum in support. In the motion to strike, Respondent argues that Petitioner has attempted to rely upon materials that are in no way a part of the state court record, Petitioner has not moved for permission nor been granted permission to file any document or material in expansion of the record under Rule 7, Rules Governing Section 2254 Cases, and Petitioner is not entitled to create a new factual basis in this action. See Cullen v. Pinholster, 563 U.S. 170, 185, 131 SA.Ct. 1388, 1401, 179 L.Ed.2d 557 (2011). The court has not considered the documents attached to the petition that were not a part of the state court record, ECF No. 1-1 at 3-5. It is recommended that this motion to strike (ECF No. 31) be granted.
The parties' attention is directed to the important notice on the next page.