Opinion
Civil Action 6:22-3769-JFA-KFM
10-05-2023
Gerald B. Haltiwanger, Petitioner, v. Warden, Turbeville Correctional Institution, Respondent.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
The petitioner, a state prisoner proceeding pro se and in forma pauperis, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the district court.
I. BACKGROUND
The petitioner is currently incarcerated at Broad River Correctional Institution in the South Carolina Department of Corrections ("SCDC") (doc. 44 at 1). He was indicted by the Richland County Grand Jury on October 10, 2012, for murder (2012-GS-40-05298) (doc. 16-5 at 182-83). The petitioner proceeded to trial before the Honorable Diane Goodstein (doc. 16-1 at 3). Mark Sawyer ("Mr. Sawyer"), Alicia Dyar ("Ms. Dyar"), and Pat Sharpe ("Mr. Sharpe") (collectively "trial counsel") represented the petitioner, and Luck Campbell, Megan Walker, and Sandra Vriesinga represented the State (id.). The jury convicted the petitioner as charged (doc. 16-4 at 223-30). Following the jury's verdict, Judge Goodstein sentenced the petitioner to life imprisonment (doc. 16-5 at 18).
A. Underlying Case Facts
According to the State, on August 25, 2012, the petitioner shot and killed Jimmy Moti ("Mr. Moti"), a security officer at El Toro Bar and Grill ("El Toro") in Columbia, South Carolina (doc. 16-1 at 226-27). Lamar Ray ("Mr. Ray'), who was working at the front desk of El Toro on August 25, 2012, testified that Mr. Moti was working at the front door that evening, checking IDs and searching for weapons (doc. 16-2 at 47-49). Mr. Ray testified that he remembered Mr. Moti did not let a guy in El Toro with a fake ID, and the guy started arguing with Mr. Moti (id. at 50). Mr. Ray testified that Mr. Moti started escorting the guy to the parking lot, the guy turned, and Mr. Moti sprayed him with mace (id. at 51-53).
Around that time, Mr. Ray saw other guys leave El Toro (doc. 16-2 at 54). Mr. Ray recalled that one "swung" at Mr. Moti, Mr. Moti pulled his gun on the guy, and the guy backed up and fell (id. at 54-55). At that point, they were at the edge of the El Toro parking lot near a gas station (id.). Mr. Moti then got on his phone and called the police (id.). Mr. Ray walked to Mr. Moti and told him that they needed to head back to the building (id.). Mr. Ray noticed that some of the guys who exited the club were going to their car, popping their hoods and trunks, which indicated to him that they were going to get guns (id.).
As Mr. Ray got inside the front door at El Toro, he heard gunshots and also heard a girl yell out that "they shooting, they shot the security" (doc. 16-2 at 56). Mr. Ray turned around and saw a black Crown Victoria driving off (id.). Mr. Ray also saw a white Crown Victoria around the same time, but he testified that the gunshots came from the black vehicle (id.). Mr. Ray testified that he saw the individual firing the shots (id. at 57). Mr. Ray noted that it was someone who had been in line to go in the club earlier and had attempted to use the fake ID, and he described the man as having gold teeth, dark skin, and shorter than himself (id. at 56, 77). Mr. Ray identified the petitioner to law enforcement in a photo lineup and testified that he did not tell law enforcement at that time that the petitioner was the shooter but rather stated that "he was one of the guys" (id. at 60-64). During the trial, however, Mr. Ray testified that the petitioner was the shooter (id.).
Zondra Gilyard ("Ms. Gilyard"), one of the petitioner's girlfriends, testified that on the morning after the shooting, the petitioner initially indicated that he had only gotten into an altercation at the club the night before (doc. 16-3 at 54). Ms. Gilyard testified that the petitioner later told her that he had gotten into an incident with the bouncer at the club, that one thing led to another, and he just started shooting (id.). The petitioner told Ms. Gilyard that, initially, there was an issue relating to an ID and he could not get into the club (id. at 55). The petitioner told Ms. Gilyard that he was walking away and was maced in the back of his shirt, which was baby blue (id.). The petitioner also told Ms. Gilyard that his younger brother, Jonathan Sterling ("Mr. Sterling"), tried to hit the bouncer once (id. at 55-56). Ms. Gilyard testified that the petitioner told her that he went to his car and was angry about being "maced for no reason," so he "rolled down the window and . . . just started shooting" (id. at 56). Ms. Gilyard later found the petitioner's gold teeth in the bottom of a diaper bag (id. at 63).
Marquita Mobley ("Ms. Mobley") testified that she and her friend, Kristina Nuttry ("Ms. Nuttry"), attempted to go to El Toro on August 25, 2012 (doc. 16-2 at 20-21). However, they did not go inside El Toro because Ms. Nuttry did not have an ID with her (id.). Ms. Mobley testified that after they were unable to get into the club, they caught a ride with someone (id. at 22-23). Ms. Mobley, Ms. Nuttry, and the driver ended up at the gas station immediately adjacent to El Toro (id.). While the driver was in the gas station, Ms. Mobley observed a commotion between the security officer at El Toro and some other guys (id. at 24). Ms. Mobley testified that Ms. Nuttry called the petitioner to the vehicle while they were sitting there (id. at 25). Ms. Mobley testified that the petitioner indicated that someone got maced and he warned Ms. Nuttry that they needed to get out of the way because he was going to "shoot the place up" (id.). Ms. Mobley testified that the petitioner stated "[t]hat he about to let rounds go and we need to go" (id.). Ms. Mobley testified that she saw the petitioner go to a car, get a gun, and start shooting out of the window (id. at 27). Ms. Mobley later identified the petitioner in a photo lineup as the person shooting (id. at 27-29).
Ms. Nuttry also testified that she and Ms. Mobley tried to go into El Toro, but they could not go in because she did not have an ID (doc. 16-3 at 92-93). Shortly thereafter, a man offered them a ride home (id. at 9-94). Ms. Nuttry testified that the three went to the gas station next to El Toro (id.). While the driver went inside, Mr. Nuttry observed some "commotion" in the El Toro parking lot (id. at 95). Mr. Nuttry testified that she called one of the two men causing the commotion over to the truck (id. at 95). Mr. Nuttry testified that one male was wearing a baby blue t-shirt, jean shorts, and sneakers (id.). Ms. Nuttry further testified that he was no more than six feet tall (id.). Mr. Nuttry described the other male as having dreads, and she believed that he was wearing a red shirt (id.). Ms. Nuttry stated that these were the two men yelling at the security officer earlier (id. at 95-97). Ms. Nuttry testified that the guy with the dreads had hit the security officer in the back of the head from behind, and the security officer pulled his gun in response (id. at 97). Further, Ms. Nuttry testified that the guy she spoke with expressed that he was asked to be removed from the club and was not being allowed back in (id. at 98). He also told Ms. Nuttry that he was maced by the security officer in the back of the head, and he expressed that he was upset about the whole situation (id. at 99). Ms. Nuttry testified that this guy told her to leave and that he was "going to light the place up" (id.). When Ms. Nuttry, Ms. Mobley, and the guy who offered them a ride left the gas station, she heard gunshots (id. at 100). Ms. Nuttry saw a black car and a white car in front of El Toro, and she could tell that the gunshots were coming from one of the two cars (id. at 100-01).
Deputy Zachary Brunson ("Deputy Brunson"), the first to arrive on the scene, testified that when he arrived, he received initial reports that three subjects were denied entry into the club because they were trying to use someone else's identification (doc. 16-1 at 237). After they could not gain access to the club, Mr. Moti attempted to escort them to their vehicle and advised them to leave the property (id.). Deputy Brunson was also informed that there was a physical altercation, and Mr. Moti was struck in the back of the head (id.). Deputy Brunson learned that shots were fired and an older black Marquis vehicle was possibly involved in the shooting (id.). Deputy Brunson recovered the tactical vest that Mr. Moti was wearing, along with the items in the vest, which included a flashlight, badge, .40 caliber pistol, magazine with eleven unfired .40 caliber cartridges, baton, knife, handcuffs and keys, notepad and pens, gloves, taser, and identification card for Carlos Brown ("Mr. Brown") (id. at 238-39, 268, 275-78; doc. 16-2 at 1-3). Sergeant Chris Lindler ("Sergeant Lindler"), who responded to the scene, also testified that when the gun was recovered from the Mr. Moti's vest, it was recovered from the holster (doc. 16-3 at 154-55).
Investigators were able to obtain video from the gas station next to El Toro (docs. 16-2 at 105-06; 16-3 at 158-60, 170-71). Based on the video, law enforcement contacted a potential witness, and that potential witness led the investigators to Ms. Mobley and Ms. Nuttry (id.). The investigators also received a Crimestoppers tip that the petitioner was responsible for the shooting (doc. 16-2 at 110). With that information, the petitioner's photo was placed in a photo lineup (id. at 112-13).
The petitioner was arrested on August 29, 2012 (docs. 16-2 at 114-15; 16-3 at 177-78). On that date, he gave a statement denying any involvement in the shooting (doc. 16-2 at 119-123). On August 31,2012, the petitioner was interviewed a second time by Deputy Chief David Wilson ("Deputy Chief Wilson") and Sergeant Lindler (doc. 16-3 at 124-25). During that interview, the investigators confronted the petitioner with excerpts of statements from the petitioner's brothers and Ms. Gilyard (id.). During the discussion about Ms. Gilyard's statement, the petitioner indicated that he wanted to provide another statement (id.). The petitioner gave a statement, and Deputy Chief Wilson and Sergeant Lindler typed what the petitioner said that was “[p]ertinent to the case” (doc. 16-1 at 111, 130). Sergeant Lindler testified that the it was the investigative agency's policy to not record by audio or video (id. at 114-15). The petitioner was afforded an opportunity to review and sign the typed statement, which he did without making any changes (id. at 111, 115-16, 126-27).
During Sergeant Linder's testimony, he testified that the petitioner's brothers had implicated the petitioner as the shooter (docs. 16-5 at 157; 16-3 at 192). Prior to the trial, Mr. Sterling provided a statement to law enforcement (doc. 16-5 at 98-102, 144-49). However, Mr. Sterling did not testify at trial because he asserted his Fifth Amendment privilege as he had been charged with accessory after the fact of the murder (id. at 99). Moreover, Mr. Sterling's statement was not admitted into evidence at trial. The petitioner's trial counsel moved for a mistrial after Sergeant Lindler's comment about the petitioner's brothers implicating him as the shooter, and the trial court denied the motion (doc. 16-3 at 192-203, 211-12).
Deputy Chief Wilson and Sergeant Lindler both testified that in his statement, the petitioner indicated that he gave the security officer his brother's ID (doc. 16-3 at 127, 223). The petitioner stated that the security officer looked at the ID, told the petitioner that he was not the man in the ID, and told the petitioner to get out of his face (id. at 127, 223-24). The petitioner turned away but was "talking junk" with the security officer and told the security officer "fuck you" (id. 127, 224). The security officer followed the petitioner as the petitioner was walking to his car (id.). The security officer told the petitioner to put his hands on a car, and the petitioner refused (id. at 127). The security officer then pulled out his gun, and the petitioner responded by putting his hands in the air and turning his back to the security officer (id.). The petitioner asserted that the security officer then pulled out pepper spray and sprayed him in the back of the head (id. at 127, 224). One of the petitioner's brothers then hit the security officer in the head, and the petitioner and his brother ended up in the gas station parking lot (id.). The petitioner indicated that after he got in his car, he and his brother left out of the parking lot, and the petitioner started shooting (id.). The petitioner acknowledged that he shot the door handle off of his car (id.).
The petitioner also told law enforcement that he wiped his car down with gas and that he sold the gun he used to a man from New York (id. at 128, 225). The petitioner further indicated that the gun was a .40 caliber handgun (id.). In addition, the petitioner stated that he threw the shell casings in the river (id.).
No gunshot residue was found on Mr. Moti's hands (doc. 16-3 at 45). Law enforcement found the petitioner's car, an older model Crown Victoria, under a car cover at another one of the petitioner's girlfriend's homes (id. at 75-76). A search of the car revealed an impact point on the passenger door (id. at 143). It appeared that a projectile entered the passenger side interior door and exited out of the passenger side exterior door, perforating the door where the door handle would be (id.). The passenger side door handle was missing (id. at 144).
The petitioner testified at trial that he was hanging out with his brothers on the day of the shooting (doc. 16-3 at 270-71). The petitioner noted that they decided to go out and, on the way, picked up his friend Cuz (id. at 271-72). The petitioner admitted that he did not have his ID with him when they got to El Toro, and he indicated that he grabbed Mr. Brown's ID from the car and attempted to use it to get into the club (doc. 16-4 at 3-4). The petitioner testified that the security officer would not let him in and got an aggressive tone after the petitioner attempted to bribe him to get inside without an ID (id. at 5). The petitioner testified that he then had a verbal exchange with the security officer, and, during that exchange, the security officer pulled his gun on him (id. at 6). The petitioner also testified that the security officer cocked the pistol and put a bullet in the chamber (id.). The petitioner testified that he then turned around, put his hands in the air, and started to walk away (id. at 7). The security officer asked the petitioner to put his hands on a car, but the petitioner said, "No, I'm about to leave" (id. at 7). The petitioner indicated that the security officer sprayed him with mace in the back of his head and shirt (id. at 9-10). The petitioner confirmed that Mr. Sterling then hit the security officer in the head (id. at 10). The security officer dropped the gun but immediately picked it back up (id. at 11). The petitioner and Mr. Sterling then went to the gas station parking lot (id. at 11-14).
The petitioner testified that the security officer made threats during an exchange while they were at the gas station parking lot (doc. 16-4 at 13). The petitioner noted that someone from the club then walked the security officer back towards the club (id. at 14). The petitioner also confirmed that he spoke with females who were in a truck at the gas station (id. at 16). The petitioner testified that he ran and got into his car (id. at 21-22). As the petitioner was attempting to pull away, he saw the security officer jump from the porch of El Toro and head towards the petitioner's car with his gun drawn (id. at 21-23). The petitioner indicated that he grabbed his pistol from between the seats and started shooting at the security officer in response to what he perceived to be a threat (id. at 23-24). The petitioner also noted that he realized later that he shot the door handle off of his car (id. at 25).
The petitioner agreed that the statement that he gave on August 31, 2012, basically described what he told law enforcement (doc. 16-4 at 28-29). The petitioner testified that the statement did not include what he said about the security officer pulling out his gun, what the petitioner told the women in the truck, that the security officer never put his gun away, or that the security officer was charging off of the porch and pointing his gun at the petitioner's car immediately before the shooting (id. at 29). The petitioner admitted that the last part of his statement reflected that he said, "I am sorry for what happened. I was drunk and I acted like a asshole. I am sorry" (id. at 30). However, the petitioner contested how the question eliciting the response was posed and exactly how he responded, but the petitioner recalled that "he said he was sorry" (id.).
B. Direct Appeal
The petitioner filed a direct appeal. In his brief dated June 25, 2015, the petitioner, represented by Heather Scalzo and Robert Dudek (collectively "appellate counsel"), presented the following issue:
Was it unduly prejudicial under Rule 403, SCRE, for the trial court to admit in evidence the partial recording of the custodial interrogation of Appellant where the recording was recorded exclusively by the police and contained only those parts of Appellant's statement the police viewed as pertinent to their case and omitted portions that more fully explained Appellant's entire statement?(Doc. 16-5 at 24). The State filed its brief in response on July 6, 2015 (doc. 16-5 at 38).
On April 13, 2016, the Court of Appeals of South Carolina affirmed the trial court's ruling (doc. 16-5 at 71-73). The petitioner did not file a petition for rehearing and did not seek further review from the Supreme Court of South Carolina. The Court of Appeals issued the remittitur on May 11, 2016 (doc. 16-6 at 1).
C. PCR
On March 24, 2017, the petitioner, represented by Christopher Leonard ("PCR counsel"), filed a post-conviction relief ("PCR") application, alleging ineffective assistance of trial counsel based on the following:
(a) Counsel failed to locate, interview, and subpoena crucial defense witnesses
(b) Counsel failed to properly develop a defense in the case, including self-defense(Doc. 16-5 at 78). The State filed its return and a partial motion to dismiss on September 29, 2017 (id. at 82-87). In the PCR application, PCR counsel referenced the petitioner's prior guilty pleas to separate charges in 2009, and the State move to dismiss the petitioner's untimely attempt to challenge those prior guilty pleas (id. at 76, 84). The State otherwise asserted that a hearing was necessary to address the claims of ineffective assistance regarding the murder trial and conviction (id. at 86).
An evidentiary hearing was held on October 28, 2019, before the Honorable Brian Gibbons (doc. 16-5 at 89). The petitioner was present at the hearing and represented by his PCR counsel (id.). The State was represented by Samuel Key (id.). The petitioner, Mr. Sharpe, Mr. Sterling, and Mr. Sawyer testified at the hearing (id. at 93-132). Mr. Sterling testified that he was unavailable for testimony at the petitioner's trial because he was charged with accessory after the fact of the murder and asserted his Fifth Amendment right to not testify (id. at 98-99). The statement that Mr. Sterling gave to law enforcement was admitted into evidence at the PCR evidentiary hearing (id.). Mr. Sterling provided in his statement, in relevant part, that he saw Mr. Moti mace the petitioner; he then approached Mr. Moti and hit him in the face; upon seeing Mr. Moti had a gun, he backed up, fell over, and jumped back up; he heard Mr. Moti say, “I SHOULD SHO[O]T YOUR MUTHAFUCKIN ASS!” and “I WILL SHOOT YOUR ASS IF YOU COME BACK ON THIS PROPERTY!”; and he later followed Tyrobe, the petitioner's brother, who was driving the petitioner's car to Bluff Road to "put the car up because that car was involved in the shooting at El Toro's on 08/25/12" (id. at 99-102, 144-49). Mr. Sterling also testified that prior to the petitioner's trial, he gave a telephone interview to the public defender's office and told them the events that he described in his statement to law enforcement (id. at 102).
The petitioner testified at the evidentiary hearing that after Mr. Moti maced him and threatened to shoot, Mr. Sterling pulled the petitioner's car up on the curb (doc. 16-5 at 108). The petitioner testified that when he got in the car, Mr. Moti stood at an angle by the car in an attempt to block them from leaving and stated, "Y'all are not going nowhere" (id.). The petitioner then testified, "I'm scared. He got a gun in his hand. He done assaulted me. He done maced me in the back. So I shot him. And that was that" (id.).
Mr. Sawyer testified that an investigator with the public defender's office interviewed Mr. Sterling, and the notes from that interview were entered into evidence at the evidentiary hearing (doc. 16-5 at 118-19). Mr. Sawyer testified that he was aware of Mr. Sterling's version of the events provided to the investigator with the public defender's office and to law enforcement (id. at 119-20). Mr. Sawyer further testified that it was his understanding that if he tried to call Mr. Sterling, Mr. Sterling would assert his Fifth Amendment right to not testify and would be unavailable (id. at 119-20). Mr. Sawyer testified that he did not believe that he could have introduced the statement that Mr. Sterling gave to the investigator because it was hearsay (id. at 123).
At the conclusion of the hearing, the PCR court took the matter under advisement and allowed each party to make final submissions within ten days (doc. 16-5 at 140-41). The State submitted a memorandum in support of denying relief, and the petitioner submitted a proposed order granting relief (id. at 152). In its written order filed on January 29, 2020, the PCR court revised the petitioner's grounds based on the evidentiary hearing, providing as follows:
1. Whether trial counsel was ineffective for failing to introduce Jonathan Sterling's statement made to law enforcement regarding the incident as a statement against interest pursuant to Rule 804(b)(3), SCRE; and
2. Whether trial counsel was ineffective for failing to seek pretrial immunity pursuant to the Protections of Persons and Property Act, when trial counsel sought a jury instruction on immunity under the Act during the charge conference.(Id. at 153). The PCR court denied and dismissed the petitioner's PCR application with prejudice, finding that the petitioner failed to establish any constitutional violations or deprivations that would require the court to grant his application (id. at 162). The petitioner did not challenge the PCR court's modification of the grounds through a motion pursuant to Rule 59 of the South Carolina Rules of Civil Procedure (“SCRCP”).
D. PCR Appeal
The petitioner, represented by Taylor Gilliam ("PCR appellate counsel"), appealed the PCR court's decision and filed a Johnson petition for writ of certiorari before the Supreme Court of South Carolina on October 14, 2020, presenting the following issue:
Johnson v. State, 364 S.E.2d 201 (S.C. 1988).
Whether the PCR court erred in denying relief, where trial counsel failed to utilize an eyewitness statement which would have helped establish Petitioner's self-defense claim, where the statement may have been admissible even though the witness invoked his Fifth Amendment rights?(Doc. 16-7 at 3). By letter dated October 15, 2020, the Supreme Court explained the Johnson petition and allowed the petitioner 45 days to respond (doc. 16-8 at 1-2). However, the petitioner never filed a response (doc. 16-10 at 1). The Supreme Court ordered that this matter be transferred to the Court of Appeals on December 14, 2020 (doc. 16-9 at 1). On October 11,2022, the Court of Appeals issued an order denying the writ of certiorari (doc. 16-10 at 1-2). The Court of Appeals issued the remittitur on October 28, 2022 (doc. 16-11 at 1).
E. Federal Petition
On October 31, 2022, the petitioner filed the instant pro se § 2254 petition, raising the following grounds for relief:
GROUND ONE: The trial court erred in admitting the partial recording of the police interrogation
SUPPORTING FACTS: The trial court admit in evidence the partial recording of the custodial interrogation of Appellant where the recording was recorded exclusively by the police and contained only parts of Appellant's statement the police viewed as pertinent to their case and omitted portions that more fully explained defendant entire statement that supported his stand your ground claim
GROUND TWO: Ineffective assistance of counsel
SUPPORTING FACTS: Counsel failed to locate, interview, and subpoena crucial defense witnesses. Counsel failed to properly develop a defense in the case, including self-defense(Doc. 1 at 5, 7). After receiving one extension of time, the respondent filed a motion for summary judgment and return and memorandum on March 1, 2023 (docs. 16; 17). On March 2, 2023, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the motion to dismiss and motion for summary judgment procedures and the possible consequences if he failed to respond adequately (doc. 18). After receiving multiple extensions of time, the petitioner filed a response on August 3, 2023 (doc. 39). The respondent filed a reply on August 10, 2023 (doc. 43). Accordingly, this matter is now ripe for review.
II. APPLICABLE LAW AND ANALYSIS
A. Standard of Review
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.
B. Exhaustion and Timeliness
The respondent acknowledges that the petitioner has technically exhausted his state court remedies and that his petition is timely (doc. 16 at 7-9, 11).
C. Federal Habeas Review
Because the petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 410 (2000). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision,” and “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 101-102 (2011) (citations omitted). Moreover, state court factual determinations are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
D. Procedural Default
Procedural default is the doctrine applied when a petitioner seeks habeas corpus relief on an issue after he failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion. If a prisoner has failed to present his claim to the state's highest court and the state's highest court would now find that claim procedurally barred, the claim is procedurally defaulted for purposes of federal habeas review. Additionally, 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. As the Supreme Court has explained:
[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).
"[A] federal court ordinarily may not consider claims that a petitioner failed to raise at the time and in the manner required under state law unless 'the prisoner demonstrates cause for the default and prejudice from the asserted error.'" Teleguz v. Pearson, 689 F.3d 322, 327 (4th Cir. 2012) (quoting House v. Bell, 547 U.S. 518, 536 (2006)). To show cause, a petitioner must "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule," Murray v. Carrier, 477 U.S. 478, 488 (1986), or that "the factual or legal basis for the claim was not reasonably available to the claimant at the time of the state proceeding." Roach v. Angelone, 176 F.3d 210, 222 (4th Cir. 1999). "Alternatively, Petitioner may prove that failure to consider the claims will result in a fundamental miscarriage of justice." McCarver v. Lee, 221 F.3d 583, 588 (4th Cir. 2000) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). A fundamental miscarriage of justice equates to the conviction of someone who is actually innocent. However, "actual innocence" requires "factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998).
In Martinez v. Ryan, 566 U.S. 1, 9 (2012), the Supreme Court carved out a "narrow exception" that modified the "unqualified statement in Coleman that an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default." In Martinez, the Court
read Coleman as containing an exception, allowing a federal habeas court to find "cause," thereby excusing a defendant's procedural default, where (1) the claim of "ineffective assistance of trial counsel" was a "substantial" claim; (2) the "cause" consisted of there being "no counsel" or only "ineffective" counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the "initial" review proceeding in respect to the "ineffective-assistance-of-trial-counsel claim"; and (4) state law requires that an "ineffective assistance of trial counsel [claim] ... be raised in an initial-review collateral proceeding."Trevino v. Thaler, 569 U.S. 413, 423 (2013) (quoting Martinez, 566 U.S. at 14-18). The Court in Martinez also noted:
When faced with the question whether there is cause for an apparent default, a State may answer that the ineffective-assistance-of-trial-counsel claim is insubstantial, i.e., it does not have any merit or that it is wholly without factual support, or that the attorney in the initial-review collateral proceeding did not perform below constitutional standards.566 U.S. at 15-16.
E. Ground One
In Ground One, the petitioner argues that the trial court erred in admitting portions of his statement given to law enforcement when law enforcement exclusively recorded the statement, only the portions that law enforcement viewed as pertinent were admitted, and portions that more fully explained his entire statement and supported his stand your ground claim were omitted (doc. 1 at 5). The respondent argues that Ground One is based on an application of state law and is therefore not cognizable on federal habeas review (doc. 16 at 13-14, 22-24).
In his habeas petition, the petitioner does not indicate whether he bases Ground One on federal or state law (see doc. 1). In addition, the petitioner does not indicate the legal basis for Ground One in his response to the respondent's motion for summary judgment but rather simply argues that he is "able to show a violation of his constitutional rights" (doc. 39 at 9). As set out above, the petitioner argued in his direct appeal that the trial court erred under South Carolina Rule of Evidence (“SCRE”) 403 in admitting portions of the statement that the petitioner provided to law enforcement (doc. 16-5 at 24). The Court of Appeals found that the trial court did not err in admitting the petitioner's statement because the probative value of the statement was not substantially outweighed by its prejudicial effect pursuant to Rules 401,402, and 403, SCRE (id. at 72).
To the extent that the petitioner bases Ground One on state law, the respondent is entitled to summary judgment. It is well-settled that "it 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); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) ("But it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts. The habeas statute unambiguously provides that a federal court may issue the writ to a state prisoner only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. And we have repeatedly held that federal habeas corpus relief does not lie for errors of state law.") (emphasis in original) (internal citations and quotation marks omitted); James v. Warden of Lieber Corr. Inst., C/A No. 2:12-2836-JFA-BHH, 2014 WL 1234211, at *2 (D.S.C. Mar. 25, 2014) (finding that a petitioner was not entitled to habeas relief on his claim that the trial court erred in allowing the State to introduce evidence connecting the petitioner to an earlier burglary in violation of Rules 403 and 404, SCRE, because the petitioner did "not identify any federal constitutional issue" in his habeas petition and "merely contend[ed] that the admission of evidence violated [the SCRE]"); Hagood v. Reynolds, C/A No. 4:10-2581-RMG, 2011 WL 4501543, at *2 (D.S.C. Sept. 28, 2011) (granting summary judgment to a respondent on a petitioner's ground that relied on Rule 403, SCRE, because it was not the province of federal habeas courts to reexamine state court decisions on state law questions); Gaddy v. McCall, C/A No. 8:10-1743-JFA-JDA, 2011 WL 4482592, at *5 (D.S.C. Sept. 27, 2011) ("This court agrees with the respondent that this claim cannot not be reviewed because it is a state law based claim and only noncompliance with federal law renders a state's criminal judgment susceptible to collateral attack in the federal courts.").
The respondent further argues that to the extent that the petitioner bases Ground One on federal law, his claim is procedurally defaulted (doc. 16 at 22). The respondent notes that although the petitioner technically exhausted his state court remedies by pursuing both a direct appeal and a PCR appeal in a timely fashion and to the required extent, the petitioner did not properly exhaust any federal basis for Ground One (id. at 7-9, 22). The undersigned agrees.
"Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal citations and quotation marks omitted). To provide the state with this opportunity, "the prisoner must fairly present his claim in each appropriate state court . . ., thereby alerting that court to the federal nature of the claim." Id. (emphasis added). "Importantly, the presentation to the state court of a state law claim that is similar to a federal claim does not exhaust the federal claim." Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (citation omitted). "Fair presentation mandates that the federal claim be presented face-up and squarely.... Oblique references which hint that a theory may be lurking in the woodwork will not suffice." Id. (citation and internal quotation marks omitted). "[I]t is not necessary to cite book and verse on the federal constitution so long as the constitutional substance of the claim is evident," West v. Wright, 931 F.2d 262, 266 (4th Cir.1991) (citation and internal quotation marks omitted), rev'd on other grounds by 505 U.S. 277 (1992), such that "both the operative facts and the controlling legal principles [are] presented to the state court." Baker, 220 F.3d at 289 (citation and internal quotation marks omitted). Thus, the Supreme Court of the United States held that "[a] litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim "federal."" Baldwin, 541 U.S. at 32. "The Court drew no distinction between citation to a state - as opposed to a federal - case, so long as the cited case rested its holding on federal law." Jones v. Sussex I State Prison, 591 F.3d 707, 713 (4th Cir. 2010).
As set out above, the petitioner raised the argument that the trial court erred in admitting the statement he provided to law enforcement in his direct appeal, but he based the argument entirely on state law. Specifically, in his brief, the petitioner relied on Rule 403, SCRE, and cases that rest their holdings on state law (doc. 16-5 at 21-34). Further, the petitioner did not raise this claim in his PCR appeal (see doc. 16-7 at 3). Accordingly, the undersigned finds that to the extent that the petitioner bases Ground One on federal law, his claim is procedurally defaulted. See, e.g., Baldwin, 541 U.S. at 29-34 (finding that a petitioner did not properly exhaust his claim when he argued in his state court appeals that his appellate counsel violated state law through his ineffective assistance but argued in his federal petition that this ineffective assistance violated federal law); Mahdi v. Stirling, 20 F.4th 846, 892 (4th Cir. 2021) (noting that one example of procedural default occurs “when a habeas petitioner fails to exhaust available state remedies and the court to which [he] would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred”) (citations and internal quotation marks omitted); Baker, 220 F.3d at 288-90 (finding that a petitioner's claim based on federal law was procedurally defaulted when, in his direct appeal, he challenged the "intensity and effect" portion of the premeditation instruction and maintained only that the instruction had "no basis in Maryland law"); Haynes v. Warden of McCormick Corr. Inst., C/A No. 2:09-1377-JFA-RSC, 2010 WL 503098, at *10 (D.S.C. Feb. 8, 2010) ("[S]ince [the petitioner] did not properly exhaust the claims raised in Grounds One, Two, and Four when the remedies were available, those claims are technically exhausted but procedurally barred from consideration on the merits here.") (citations omitted); McNeil v. Reynolds, C/A No. 9:08-2796-JFA-BM, 2009 WL 2043886, at *6 (D.S.C. July 10, 2009) ("However, even though technically exhausted, since these issues were not properly pursued by the Petitioner in the state court, federal habeas review of these claims is now precluded absent a showing of cause and prejudice, or actual innocence.").
In addition, the petitioner has failed to articulate any cause and prejudice or a fundamental miscarriage of justice to excuse such default (see docs. 1; 39). Therefore, the undersigned recommends that the district judge grant the respondent's motion for summary judgment on Ground One.
F. Ground Two
In Ground Two, the petitioner argues that his trial counsel was ineffective for (1) failing to locate, interview, and subpoena crucial defense witnesses and (2) failing to properly develop a defense in the case, including self-defense (doc. 1 at 7). To be entitled to relief on an ineffective assistance claim, a petitioner must show that (1) trial counsel's performance fell below an objective standard of reasonableness and (2) a reasonable probability exists that but for counsel's error, the result of that proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-94 (1984). Strickland does not guarantee perfect representation, only a “‘reasonably competent attorney.'” Id. at 687 (quoting McMann v. Richardson, 397 U.S. 759, 770 (1970)). There is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions in the case. Id. at 690. The review of ineffective assistance of counsel claims in federal habeas is not simply a new review of the merits; rather, habeas review is centered upon whether the State court decision was reasonable. See 28 U.S.C. § 2254(d). Additionally, each step in the review process requires deference-deference to counsel and deference to the State court that previously reviewed counsel's actions:
Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both “highly deferential,” and when the two apply in tandem, review is “doubly” so. The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.Harrington v. Richter, 562 U.S. 86, 104 (2011) (internal citations omitted).
1. Failure to Call Witnesses
The petitioner argues that his trial counsel was ineffective for failing to locate, interview, and subpoena crucial defense witnesses (doc. 1 at 7). However, the respondent argues that habeas review of the petitioner's claim is limited to the revised ground set forth and ruled on by the PCR court and that any related claims are procedurally defaulted (doc. 16 at 25-26). The petitioner did not respond to this argument (see doc. 39).
As set out above, the petitioner argued in his PCR application that his trial counsel was ineffective for failing to locate, interview, and subpoena crucial defense witnesses (doc. 16-5 at 78). However, based on the evidentiary hearing, the PCR court revised the petitioner's grounds as follows:
1. Whether trial counsel was ineffective for failing to introduce Jonathan Sterling's statement made to law enforcement regarding the incident as a statement against interest pursuant to Rule 804(b)(3), SCRE; and
2. Whether trial counsel was ineffective for failing to seek pretrial immunity pursuant to the Protections of Persons and Property Act, when trial counsel sought a jury instruction on immunity under the Act during the charge conference.(Id. at 153). The petitioner did not challenge the PCR court's modification of the grounds through a motion pursuant to Rule 59, SCRCP. Further, in his PCR appeal, the petitioner only presented the following issue in his Johnson petition:
Whether the PCR court erred in denying relief, where trial counsel failed to utilize an eyewitness statement which would have helped establish Petitioner's self-defense claim, where the statement may have been admissible even though the witness invoked his Fifth Amendment rights?(Doc. 16-7 at 3). Despite being given the opportunity by the Supreme Court, the petitioner never filed a response with any additional claims that he wished to raise. Because the petitioner did not file a motion pursuant to Rule 59, SCRCP, when the PCR court revised his claim and did not raise his broader claim that trial counsel was ineffective for failing to locate, interview, and subpoena crucial defense witnesses before the South Carolina appellate courts, the undersigned finds that only the revised claim, as set forth and ruled on by the PCR court, is properly exhausted. See Gilbert v. Moore, 134 F.3d 642, 658-58 (4th Cir. 1998) (finding that a petitioner's claim was procedurally defaulted when he did not raise it in his direct appeal or PCR appeal); Montgomery v. Bodison, C/A No. 6:09-778-HMH-WMC, 2010 WL 297667, at *4 (D.S.C. Jan. 20, 2010) (“Because the PCR court failed to make specific findings on all of his ineffective assistance of counsel claims, Montgomery was required to file a timely Rule 59(e) motion requesting that the PCR court make specific findings of all of his claims raised in his PCR application in order to preserve the issues for appeal.”). Therefore, the undersigned's review herein is limited to the petitioner's claim that his trial counsel was ineffective for failing to introduce Mr. Sterling's statement.
As set out above, Mr. Sterling testified at the evidentiary hearing before the PCR court, and the statement that he gave to law enforcement was admitted into evidence at that hearing (doc. 16-5 at 98-105). Mr. Sterling testified that he was unavailable for testimony at the petitioner's trial because he was charged with accessory after the fact of the murder and asserted his Fifth Amendment right to not testify (id.). Mr. Sterling provided in the statement to law enforcement, in relevant part, that he saw Mr. Moti mace the petitioner; he then approached Mr. Moti and hit him in the face; upon seeing Mr. Moti had a gun, he backed up, fell over, and jumped back up; he heard Mr. Moti say, “I SHOULD SHO[O]T YOUR MUTHAFUCKIN ASS!” and “I WILL SHOOT YOUR ASS IF YOU COME BACK ON THIS PROPERTY!”; and he followed Tyrobe, who was driving the petitioner's car to Bluff Road to "put the car up because that car was involved in the shooting at El Toro's on08/25/12" (id. at 99-102, 144-49). Mr. Sterling also testified that prior to the petitioner's trial, he gave a telephone interview to the public defender's office and told them the events that he described in his statement to law enforcement (id. at 102).
The petitioner testified at the PCR hearing that after Mr. Moti maced him and threatened to shoot, Mr. Sterling pulled the petitioner's car up on the curb (doc. 16-5 at 108). The petitioner testified that when he got in the car, Mr. Moti stood at an angle by the car in an attempt to block them from leaving and stated, "Y'all are not going nowhere" (id.). The petitioner then testified, "I'm scared. He got a gun in his hand. He done assaulted me. He done maced me in the back. So I shot him. And that was that" (id.).
Mr. Sawyer testified at the PCR evidentiary hearing that an investigator with the public defender's officer interviewed Mr. Sterling, and the notes from that interview were entered into evidence at the evidentiary hearing (doc. 16-5 at 118-19). Mr. Sawyer testified that he was aware of Mr. Sterling's version of the events provided to the investigator with the public defender's office and to law enforcement (id. at 119-20). Mr. Sawyer further testified that it was his understanding that if he tried to call Mr. Sterling, Mr. Sterling would assert his Fifth Amendment right to not testify and would be unavailable (id. at 119-20). Mr. Sawyer testified that he did not believe that he could have introduced the statement that Mr. Sterling gave to the investigator because it was hearsay (id. at 123).
In its order of dismissal, the PCR court found that the petitioner's trial counsel was not ineffective for failing to introduce into evidence Mr. Sterling's statement to law enforcement (doc. 16-5 at 155-60). The PCR court noted that Mr. Sterling was unavailable because he invoked his Fifth Amendment right to not testify (id. at 155-56). Accordingly, the PCR court addressed whether Mr. Sterling's out of court statement fell within an exception under Rule 804, SCRE, which provides exceptions to the rule against hearsay when the declarant is unavailable as a witness (id.). Specifically, the PCR court analyzed whether Mr. Sterling's statement was admissible under Rule 804(b)(3), SCRE, which allows for the admissibility of statements against interest (id. at 156).
The PCR court found that the entirety of Mr. Sterling's statement was not admissible, as South Carolina courts only admit the portions of the statement that are plainly self-inculpatory under Rule 804(b)(3), and there were portions of Mr. Sterling's statement that were not plainly self-inculpatory (doc. 16-5 at 156-57) (citing State v. Holmes, 536 S.E.2d 671, 673 (S.C. 2000) (stating that Rule 804(b)(3) is applied "very narrowly to only those portions of a hearsay statement which are plainly self-inculpatory")).
The PCR court also rejected the petitioner's argument that Mr. Sterling's entire statement should have been admitted to provide context to Sergeant Lindler's testimony and trial counsel should have attempted to admit the statement under Rule 804(b)(3), SCRE, instead of moving for a mistrial (doc. 16-5 at 157). As set out above, Sergeant Lindler testified at trial that the petitioner's brothers had "implicated [the petitioner] as the shooter" (docs. 16-5 at 157; 16-3 at 192). The petitioner's trial counsel moved for a mistrial, and the trial court denied the motion (doc. 16-3 at 192-203, 211-12). The PCR court explained that the petitioner's reliance on Rule 804(b)(3) in asserting that Mr. Sterling's entire statement was admissible as a statement against interest was misplaced, because only the plainly self-exculpatory portions within Mr. Sterling's statement were admissible as a matter of law (id.). The PCR court further stated that "[t]he introduction of the entire statement to give context to Lindler's statement goes beyond the reasoning for Rule 804(b)(3)” (id. at 159-60). Additionally, the PCR court found that the petitioner's trial counsel was not deficient for failing to seek to introduce Mr. Sterling's statement based on Sergeant Lindler's testimony because most of Mr. Sterling's statement was inadmissible and trial counsel objected to and moved for a mistrial in response to the statement (id. at 159). The PCR court explained as follows:
Further, trial counsel objected to Lindler's statement and moved for a mistrial. Trial counsel's decision to move for a mistrial rather than seek to introduce inadmissible hearsay was reasonable. See Whitehead, 308 S.C. at, 417 S.E.2d at ("Courts must be wary of second guessing counsel's trial tactics; and where counsel articulates a valid reason for employing such strategy, such conduct will not be deemed ineffective assistance of counsel."). As such, trial counsel was not ineffective for failing to introduce the portion of Sterling's statement implicating Applicant as the shooter to put Lindler's statement into context. Finally, Applicant admitted to being the shooter; therefore, there is no prejudice from Lindler's statement because who was the shooter was not a disputed fact.(Id. at 159-60).
Moreover, the PCR court found that the portions of the statement that the petitioner relied on as exculpatory evidence corroborating his self-defense claim were hearsay and hearsay within hearsay, and those statements did not qualify as an exception under Rule 804(b)(3), SCRE (doc. 16-5 at 156-57). The PCR court explained as follows:
Further, Sterling's statements regarding Moti's exclamations, "I SHOULD SHO[O]T YOUR MOTHERFUCKIN ASS!" and "I WILL SHOOT YOUR ASS IF YOU COME BACK ON THIS PROPERTY!" are also inadmissible non-self-inculpatory statements. Had Sterling been available to testify, these statements were potentially admissible as excited utterances. However, Sterling was unavailable, making Moti's exclamations hearsay within hearsay. Rule 804(b) does not provide an exception for this situation; therefore, the statements constitute inadmissible hearsay within hearsay. Sterling's own statements to law enforcement were not excited utterances but merely statements relaying Moti's excited utterances. Therefore, trial counsel was not deficient for seeking to introduce Sterling's entire statement because the entire statement contained inadmissible hearsay and only
Sterling's self-inculpatory statements within the entire statement were potentially admissible.(Id. at 158).
The PCR court identified the following as Mr. Sterling's plainly self-inculpatory statements given to law enforcement:
a) He hit the security guard one time;
b) He hit the security guard with his fist; and
c) He followed Tyrobe, who was driving Applicant's car to Bluff Road to "put the car up because that car was involved in the shooting at El Toro's on [August 25, 2012]."(Doc. 16-5 at 157). The PCR court acknowledged that an attempt to introduce these statements arguably would have been unsuccessful (id. at 157-58). Specifically, the PCR court noted that "Sterling's statement that he hit Moti, the security guard, in the face because Moti was macing Applicant is not plainly self-inculpatory because the statement offers a defense of others defense for himself” and "Sterling admitted he helped hide Applicant's car because the car was involved in the shooting" (id.) (citing State v. Young, 803 S.E.2d 888, 894 (2017) (stating blame-spreading remarks should not be presented to the jury because attempts to absolve blame and other self-serving statements do not qualify as statements against penal interest)). In any event, the PCR court found that even if these statements were admitted, they added little, if anything, to corroborate the petitioner's version of events and advance his defense (id.).
The PCR court also rejected the petitioner's argument that he was prejudiced by his trial counsel's failure to introduce Mr. Sterling's statement into evidence because the jury only had the petitioner's testimony to consider in deciding whether the petitioner acted in self-defense, stating as follows:
The transcript shows Applicant attempted to corroborate his testimony by explaining what the gas station video portrayed. Marquita Mobley and Kristina Nuttry both testified "the guy with the dreads" (Sterling) punched Moti. Nuttry testified Moti pulled his gun out after being punched. Mobley and Nuttry also both saw Applicant and Moti arguing. Another witness, Lamar Ray, testified as follows: Moti maced Applicant; Sterling punched Moti; Moti pulled his gun and then Sterling fell; Moti was telling Applicant to "go on, leave;" and Moti was standing outside El Toro's door when he was shot. The above-referenced testimony by Mobley, Nuttry, and Ray corroborate most of Applicant's testimony. As such, Applicant's testimony was not the only evidence presented for the jury to consider in deciding Applicant's self-defense claim - the majority of his version of events were corroborated by other witnesses and the gas station video. Therefore, Applicant was not prejudiced by trial counsel's alleged failure to introduce the admissible portions of Sterling's statement, as those portions were cumulative to other evidence.(Doc. 16-5 at 158-59) (internal citations omitted).
In light of the foregoing, the undersigned finds that a reasonable argument exists that the petitioner's trial counsel was not ineffective for failing to introduce Mr. Sterling's statement to law enforcement. As set forth in the PCR court's thorough order, most of Mr. Sterling's statement to law enforcement was inadmissible because it was hearsay and not plainly self-inculpatory so as to fall under the hearsay exception in Rule 804(b)(3), SCRE, for unavailable witnesses. Further, the potentially self-inculpatory portions of Mr. Sterling's statement were arguably not admissible because they allowed for a defense of others for Mr. Sterling and were the type of blame-spreading remarks that South Carolina courts have found inadmissible. Nevertheless, even if these potentially self-inculpatory statements were admissible, they were cumulative and non-impactful based on the other testimony presented at trial. In addition, when Sergeant Lindler testified that the petitioner's brothers implicated the petitioner as the shooter, trial counsel moved for a mistrial. As a result, the undersigned finds that a reasonable argument exists that the petitioner's trial counsel was not deficient, and the PCR court's dismissal of this claim was not based on objectively unreasonable factual determinations and did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law. Therefore, the undersigned recommends that the district court grant the respondent's motion for summary judgment on this claim.
2. Failure to Develop Defenses
The petitioner argues that his trial counsel was ineffective for failing to properly develop a defense in the case, including self-defense (doc. 1 at 7). The undersigned finds that this claim is procedurally defaulted because the petitioner failed to raise this claim in his PCR appeal. The Fourth Circuit has held that a petitioner's claim is procedurally defaulted when he raises such claim in his PCR application but not in his PCR appeal. See, e.g., Mahdi, 20 F.4th at 893 ("[A] claim is procedurally barred if the petitioner fail[s] to raise [it] in his petition for certiorari to the South Carolina Supreme Court for review of the State PCR Court's decision.") (citation and internal quotation marks omitted); Longworth v. Ozmint, 377 F.3d 437, 447-48 (4th Cir. 2004) (finding that a petitioner's claim in his habeas petition was procedurally defaulted when he raised the claim in PCR but did not present it in his petition for certiorari filed with the South Carolina Supreme Court); Whitley v. Bair, 802 F.2d 1487, 1500 (4th Cir. 1986) ("[F]ailure to appeal claims disposed of by state habeas trial court constitutes a procedural bar to further federal review of such claims."). However, these cases did not involve Johnson petitions.
Some courts in the District of South Carolina have found that these Fourth Circuit holdings do not extend to PCR appeals involving Johnson petitions and that every issue raised by the petitioner and ruled upon by the PCR court is preserved for federal habeas review, regardless of which issues are actually raised on appeal, since South Carolina appellate courts review Johnson petitions pursuant to the procedures set forth in Anders v. California, 386 U.S. 738 (1967), and therefore review the entire record. See, e.g., Cave v. Warden, Lieber Corr. Inst., C/A No. 0:18-3573-CMC-PJG, 2019 WL 6330811, at *4 (D.S.C. Oct. 29, 2019) (finding that a petitioner's claim was not procedurally defaulted when it was not raised in the Johnson petition or pro se response in the petitioner's PCR appeal because, "as the claim was ruled on by the PCR court and thus preserved for appellate review, the state appellate court reviewed the claim pursuant to the procedures outlined in Anders v. California") (citations omitted), R&R adopted by 2019 WL 6318727 (D.S.C. Nov. 26, 2019); Pierce v. Reynolds, C/A No. 2:15-cv-01803-SB-MGB, 2016 WL 11407782, at *9 (D.S.C. Jan. 28, 2016) (same), R&R adopted by 2016 WL 1271001 (D.S.C. Mar. 29, 2016); Sampson v. Reynolds, C/A No. 9:14-cv-4206-DCN, 2015 WL 4487960, at *5-6 (D.S.C. July 22, 2015) (adopting R&R finding that "since Petitioner's PCR counsel filed a Johnson petition, those issues addressed by the PCR court [but not raised in the PCR appeal] are not procedurally barred").
Nevertheless, many courts in the District of South Carolina have applied these Fourth Circuit holdings in the Johnson petition context. See, e.g., Cox v. Stonebreaker, C/A No. 5:19-cv-01725-RBH-KDW, 2020 WL 2332781, at *3, *8 (D.S.C. April 9, 2020) (finding that a petitioner's claims were procedurally barred because they were not presented in his PCR appeal, either through his counsel's Johnson petition or his pro se response), R&R adopted by 2020 WL 2322614 (D.S.C. May 11, 2020); Gilliard v. Joyner, C/A No. 6:18-2417-SAL-KFM, 2020 WL 2198896, at *7 (D.S.C. Apr. 7, 2020) (finding that some of a petitioner's claims were procedurally defaulted when he did not raise the claims in his Johnson petition in the PCR appeal and, despite being given the opportunity, did not file a pro se response raising any additional issues that he believed the Supreme Court of South Carolina should consider in the PCR appeal), R&R adopted by 2020 WL 2192703 (D.S.C. May 6, 2020); Portee v. Stevenson, C/A No. 8:15-cv-00487-PMD-JDA, 2015 WL 13734631, at *18 (D.S.C. Dec. 29, 2015) ("As an initial matter, the following grounds are procedurally barred because they were not presented to the South Carolina Supreme Court in the Johnson petition or in Petitioner's pro se petition . . . ."), aff'd by 671 Fed.Appx. 100 (4th Cir. 2016); Calloway v. Reynolds, C/A No. 4:15-cv-2137-RMG-TER, 2015 WL 13734213, at *3, *6 (D.S.C. Nov. 24, 2015) (finding that a petitioner's claim was procedurally defaulted when the petitioner raised the claim before the PCR court but did not raise it in his Johnson petition in the PCR appeal or in his pro se response), R&R adopted by 2016 WL 259303 (D.S.C. Jan. 21, 2016).
The undersigned finds the latter-described district court cases persuasive. Moreover, the undersigned finds that the distinction of a Johnson petition does not warrant departure from the Fourth Circuit's holding that a claim is procedurally defaulted when it is not raised in the PCR appeal and that an extension of the law indicating that South Carolina appellate courts must review the entire trial record is not a means to circumvent exhaustion requirements and obtain federal habeas review of any and every issue raised in the record. Nevertheless, because the respondent did not argue that this ground was procedurally defaulted for these reasons and out of an abundance of caution, the undersigned has addressed the merits of the petitioner's claim herein. Moreover, for the reasons discussed above, the undersigned's review of this claim is limited to the PCR court's revision of the claim that the petitioner's trial counsel was ineffective for failing to seek pretrial immunity pursuant to the Protections of Persons and Property Act ("the Act"), when trial counsel sought a jury instruction on immunity under the Act during the charge conference. See S.C. Code Ann. § 16-11-440(C) .
In its order of dismissal, the PCR court noted that the Act provides, in pertinent part, as follows:
A person who is not engaged in an unlawful activity and who is attacked in another place where he has a right to be . . . has no duty to retreat and has the right to stand his ground and meet force with force, including deadly force, if he reasonably believes it is necessary to prevent death or great bodily injury to himself or another person . . . .(Doc. 16-5 at 160-61). The PCR court found as follows:
Trial counsel was not deficient for failing to seek immunity pursuant to the Act because Applicant informed trial counsel of his version of the facts, and Applicant's own version of the facts show he did not have a right to be on El Toro's premises. Sawyer testified from Applicant's version of events, Moti, a licensed security guard, ejected him from the premises,
and Applicant almost immediately reentered the premises to get into his car. Therefore, from Applicant's own version of events, he did not have a right to be on the premises. As such, trial counsel was not deficient for failing to seek immunity under the Act pretrial.
Applicant was not prejudiced by trial counsels' alleged deficiency because even Applicant's own version of events, which he eventually testified to at trial, did not support immunity under the Act because Applicant was not in a place where he had a right to be. However, Applicant's version of events supported the theory of self-defense, and the jury received a self-defense jury charge.
Because Applicant's version of events did not amount to immunity under the Act, trial counsel was not deficient nor was Applicant prejudiced by trail counsels' alleged failure to seek pretrial immunity under the Act. As such, this allegation is denied and dismissed with prejudice.(Id. at 161).
The undersigned finds that the PCR court's dismissal of this claim was not based on objectively unreasonable factual determinations and did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law. The evidence, including the petitioner's own testimony, reflects that the petitioner did not have a right to be at the club. Thus, even if trial counsel had requested and received a hearing on immunity under the Act, the petitioner could not produce evidence that could satisfy South Carolina Code Annotated § 16-11-440(C) to excuse his duty to retreat. As a result, the undersigned finds that the PCR court's ruling reflects a reasonable factual determination and reasonable application of Strickland. Therefore, the undersigned recommends that the district court grant the respondent's motion for summary judgment on the petitioner's claim that his trial counsel was ineffective for failing to seek pretrial immunity pursuant to the Act.
III. CONCLUSION AND RECOMMENDATION
Wherefore, based on the foregoing, the undersigned recommends that the district court grant the respondent's motion for summary judgment (doc. 17).
IT IS SO RECOMMENDED.
Greenville, South Carolina
The attention of the parties is directed to the important notice on the next page.
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 250 East North Street, Suite 2300 Greenville, South Carolina 29601
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).