Opinion
C. A. 8:22-cv-01877-JD-JDA
07-31-2023
Fred R. Halcomb, Jr., Petitioner, v. Warden Truitt, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court on Respondent's motion for summary judgment [Doc. 24] and motion to strike [Doc. 41]. Petitioner is a state prisoner seeking relief under 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.
Petitioner filed this action on May 9, 2022. [Doc. 1.] Respondent filed a return and motion for summary judgment on October 12, 2022. [Docs. 23; 24.] Petitioner's response in opposition was entered on the docket on January 17, 2023, and Respondent replied on January 24, 2023. [Docs. 39; 40.] Along with its reply, Respondent filed a motion to strike the exhibits Petitioner included with his response to the motion for summary judgment. [Doc. 41.] Petitioner responded to the motion to strike on February 14, 2023. [Doc. 44.] Both motions are now ripe for review.
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988); [Doc. 1-1 at 1]. Accordingly, construing the filing date in the light most favorable to Petitioner, the Court deems this Petition as having been filed on May 9, 2022. [Doc. 1 at 30 (Petition signed May 9, 2022).]
BACKGROUND
Evidence presented at trial indicated that Petitioner had directed Jonathon Love to burn down a house, but that Love had not succeeded and Petitioner had decided to kill Love as a result. [App. 212-13, 224-29. Late one evening in December 2002, Petitioner and his girlfriend Diane Lawson drove to a wooded property in Marion County. [App. 212-13, 231-32.] There was another car parked on the property, and they parked behind it, got out of the car, and started walking into the woods. [App. 232-33.] As they did, they came upon Luzenski “Allen” Cottrell, whom Lawson knew, and Love, whom she had not previously met. [App. 212-13, 234.] Cottrell and Love were inside a hole, digging. [App. 234, 236.] Petitioner gave them some instruction about how to dig the hole, and Lawson and Petitioner later returned to their car and waited. [App. 234, 236.] When Cottrell and Love returned to the area where the cars were, for a smoking break, Petitioner handed Cottrell a gun. [App. 238-39.] Cottrell and Love subsequently returned to the woods to continue digging and, at some point, Cottrell shot Love several times and killed him. [App. 239-43, 303-12.]
The Appendix is located at Docs. 23-1 through 23-6.
In November 2004, Petitioner and Cottrell were indicted for the murder. [App. 732.] They were tried together before the Honorable J. Michael Baxley in August 2005. [App. 1.] The jury found both parties guilty under the “hand of one is the hand of all” theory of accomplice liability, and Judge Baxley sentenced them to life in prison. [App. 620-21 (verdict), 637 (sentence).] Petitioner was represented at trial by attorney Scott Bellamy (“Trial Counsel”). [App. 1.]
Direct Appeal
Petitioner filed a timely appeal, presenting the following issues:
1. Whether the court erred by refusing to grant a severance since a joint trial with co-defendant Cottrell was prejudicial to appellant since it limited appellant's ability to present a defense because Cottrell's inculpatory statement was not admitted, in part, because of the court's concern over an alleged Bruton [v. United States, 391 U.S. 123 (1968)] problem, and also because appellant's cooperation with the police in Cottrell's unrelated murder of a police officer were not allowed in his defense during the joint trial?
2. Whether the court erred by refusing to admit evidence that co-defendant Cottrell told Amber Counts in a letter that the decedent had tried to sexually assault Cottrell's girlfriend and that the decedent would never hurt anyone again, since this evidence was relevant, inculpatory of Cottrell, and exculpatory of appellant, and it also was evidence co-defendant Cottrell had personal reasons to kill the decedent that did not involve appellant?[App. 642 (footnote added).] The South Carolina Court of Appeals affirmed Petitioner's conviction and sentence on March 11, 2009. [App. 709-18.]
In March 2005, Cottrell was convicted of murdering a Myrtle Beach police officer and sentenced to death. See State v. Cottrell, 657 S.E.2d 451 (S.C. 2008).
Post-Conviction Relief Proceedings
Petitioner then pursued post-conviction relief (“PCR”), alleging multiple instances of ineffective assistance of trial counsel, including his current allegations concerning failing to object to the increased security presence at the courthouse and the use of a stun belt, and violations of Brady v. Maryland, 373 U.S. 83 (1963). [App. 752-60.] The Honorable Craig D. Brown conducted an evidentiary hearing and heard testimony from Petitioner, Trial Counsel, the former solicitors who prosecuted Petitioner and Cottrell, parties familiar with security protocols at the courthouse, and Cottrell's former girlfriend Amber Counts. [App. 761-1133.] Judge Brown denied Petitioner's application and dismissed the action on February 14, 2019. [App. 1162-1203.] Petitioner's PCR counsel moved to alter or amend the order of dismissal, and Judge Brown denied that motion on March 22, 2019. [Docs. 23-8; 23-9.]
Petitioner filed a timely appeal to the South Carolina Supreme Court and, through appellate counsel Jeremy A. Thompson, presented four issues:
I. Whether the PCR court erred in concluding that the prosecution did not violate Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose an interview conducted by the State's investigator Dale Long of potential witness Vander McCray?
II. Whether the PCR court erred in concluding that the Petitioner's right to a fair trial was not violated by the heightened police presence inside and outside of the courtroom during his trial?
III. Whether the PCR court erred in concluding that defense counsel was not ineffective for failing to object to the heightened police presence during trial?
IV. Whether the PCR court erred in concluding that defense counsel was not ineffective for failing to object to the use of a stun belt on the Petitioner throughout the course of the trial?[Doc. 23-10 at 3.] The South Carolina Supreme Court transferred the matter to the Court of Appeals [Doc. 23-13], which denied certiorari on March 31, 2022 [Doc. 23-14]. The matter was remitted to the lower court on April 25, 2022. [Doc. 23-15.]
Petition for Writ of Habeas Corpus
Petitioner filed this Petition for writ of habeas corpus on June 14, 2022, raising the following grounds and supporting facts, quoted substantially verbatim:
GROUND ONE: Petitioner was denied due process of law in violation of the Sixth and Fourteenth Amendments of the United States Constitution when the state failed to disclose material, exculpatory, impeachment and mitigation information to trial counsel, that was required to be disclosed to Petitioner.
Supporting facts: Petitioner is being held unlawfully and in violation of his constitutional right to due process due to Horry County ex-solicitors Hembree and Humphries' direct act of withholding the only exculpatory and material evidence that was favorable to Petitioner's innocence, by withholding both a signed proffer agreement entered into by Hembree, McCray and McCray's lawyer Candice Lively entered into on February 13, 2004 and a statement made by state witness Vander McCray to the ex-solicitor Hembree's investigator Dale Long on March 11, 2004.
GROUND TWO: Petitioner was denied effective assistance of trial counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution by failing to object to the direct prejudice of a large amount of law enforcement in and outside the courtroom for the duration of Petitioner's trial.
Supporting facts: Petitioner's trial counsel failed to object and contemporaneously preserve the direct prejudice of a large amount of armed and in uniform deputies and several law enforcement in tactical gear with assault rifles, as well as the Horry County deputies carrying shotguns while escorting Petitioner from the five-vehicle convoy into the courthouse in a red jumpsuit, three sets of handcuffs, black box, shackles, and hobble chain in front of the entire two-hundred and fifty jury venire waiting outside the courthouse by a tree some twenty feet from Petitioner being escorted.
GROUND THREE: Petitioner was denied effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution when trial counsel failed to object to the requirement of Petitioner to wear a stunbelt to restrain him for the entire trial.
Supporting facts: Petitioner was in a stunbelt that transmits 50,000 volts of electricity into the Petitioner if one switch is pressed on the remote one of the five Horry County deputies possesses with full discretion to electrocute Petitioner for any reason he decides.
GROUND FOUR: Petitioner was denied effective assistance of trial counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution for an overall ineffective assistance of counsel that failed to perform his duties in a cumulative effect.
Supporting facts: Petitioner has addressed several separate ineffective assistance of counsel herein this petition and has addressed each particular ground for relief that were prejudice to Petitioner. Without waiving Petitioner's contention that each instance, by itself, merits relief, Petitioner points out that when assessing prejudice, this court must consider all of the instances of prosecutorial misconduct and ineffective assistance of counsel which the court finds to have been established together, thus prejudice ensued and counsel was deficient-showing a reasonable probability of a different outcome.[Doc. 1 at 5, 16, 19, 25.]
APPLICABLE LAW
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure 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). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under 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. When 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 court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (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. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant'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 granting 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. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
Habeas Corpus
Generally
Because Petitioner filed the 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, 411 (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, 101-02 (2011). 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).
Procedural Bar
Federal law establishes this Court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person “is in custody in violation of the Constitution or laws or treaties of the United States” and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural bypass operate to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this Court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) 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 unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (I) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254. The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. Id. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must fairly present his claim to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds for relief be stated in the direct appeal or PCR application. S.C. App. Ct. R. 203; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). If the PCR court fails to address a claim as required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment. S.C. R. Civ. P. 59(e). Failure to do so will result in the application of a procedural bar to that claim by the Supreme Court of South Carolina. Marlar v. State, 653 S.E.2d 266 (S.C. 2007). Further, strict time deadlines govern direct appeal and the filing of a PCR application in the South Carolina courts. For direct appeal, a notice of appeal must be filed and served on all respondents within ten days after the sentence is imposed or after receiving written notice of entry of the order or judgment. S.C. App. Ct. R. 203(b)(2), (d)(1)(B). A PCR application must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.
In Bostick v. Stevenson, 589 F.3d 160 (4th Cir. 2009), the Fourth Circuit found that, prior to the Supreme Court of South Carolina's November 5, 2007, decision in Marlar, South Carolina courts had not uniformly and strictly enforced the failure to file a motion pursuant to Rule 59(e) as a procedural bar. 589 F.3d at 162-65. Accordingly, for matters in which there was a PCR ruling prior to November 5, 2007, the Court will not consider any failure to raise issues pursuant to Rule 59(e) to effect a procedural bar.
If any avenue of state relief is still available, the petitioner must proceed through the state courts before requesting a writ of habeas corpus in the federal courts. Richardson v. Turner, 716 F.2d 1059, 1062 (4th Cir. 1983); Patterson v. Leeke, 556 F.2d 1168 (4th Cir. 1977). Therefore, in a federal petition for habeas relief, a petitioner may present only those issues that were presented to the Supreme Court of South Carolina through direct appeal or through an appeal from the denial of a PCR application, regardless of whether the Supreme Court actually reached the merits of the claim.
Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner seeks habeas corpus relief based on an issue he failed to raise at the appropriate time in state court, removing any further means of bringing that issue before the state courts. In such a situation, the petitioner has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. See Smith v. Murray, 477 U.S. 527, 533 (1986). The United States Supreme Court has stated that the procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See id. Bypass can occur at any level of the state proceedings if a state has procedural rules that bar its courts from considering claims not raised in a timely fashion. Id.
The Supreme Court of South Carolina will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. See S.C. Code Ann. § 1727-90; Aice v. State, 409 S.E.2d 392, 394 (S.C. 1991). Further, if a prisoner has failed to file a direct appeal or a PCR application and the deadlines for filing have passed, he is barred from proceeding in state court. S.C. App. Ct. R. 203(d)(3), 243. 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. See Reed v. Ross, 468 U.S. 1, 11 (1984); see also Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995). As the United States Supreme Court 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, 468 U.S. at 10-11.
However, if a federal habeas petitioner can show both (1) “‘cause' for noncompliance with the state rule” and (2) “‘actual prejudice resulting from the alleged constitutional violation[,]'” the federal court may consider the claim. Smith, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986). Further, if the petitioner does not raise cause and prejudice, the court need not consider the defaulted claim. See Kornahrens, 66 F.3d at 1363.
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Absent a showing of cause and actual prejudice, a federal court is barred from considering the claim. Wainwright, 433 U.S. at 87. In such an instance, the exhaustion requirement is technically met, and the rules of procedural bar apply. Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman, 501 U.S. at 735 n.1; Teague, 489 U.S. at 297-98; George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)).
Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this Court may consider claims that have not been presented to the Supreme Court of South Carolina in limited circumstances-where a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or where a “fundamental miscarriage of justice” has occurred, Carrier, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim, where the novelty of the constitutional claim is such that its legal basis is not reasonably available to the petitioner's counsel. Id. at 487-89; Reed, 468 U.S. at 16. Absent a showing of “cause,” the court is not required to consider “actual prejudice.” Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice to excuse a default. Carrier, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error. Engle v. Isaac, 456 U.S. 107, 134-35 (1982).
As an alternative to demonstrating cause for failing to raise the claim, the petitioner may show a miscarriage of justice. To demonstrate a miscarriage of justice, the petitioner must show he is actually innocent. See Carrier, 477 U.S. at 496 (holding a fundamental miscarriage of justice 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 demonstrate this actual innocence standard, the petitioner's case must be truly extraordinary. Carrier, 477 U.S. at 496.
DISCUSSION
Respondent's Motion to Strike
Respondent has moved to strike attachments to Petitioner's response to the motion for summary judgment that are not part of the state court record. [Doc. 41.]
Section 2254(e)(2) limits a habeas petitioner's ability to expand the record beyond the state court record. For a federal habeas court to consider evidence beyond the state court record, a petitioner must show his claim relies on either “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” or a “factual predicate that could not have been previously discovered through the exercise of due diligence” and that “the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2254(e)(2).
Along with his response, Petitioner submitted multiple exhibits, including pretrial discovery responses, copies of Petitioner's indictment, and the J. Reuben Long Detention Center's stun belt policy. [Doc. 39-1 at 1-20.] Petitioner argues each exhibit is relevant and necessary to support his claims. [Doc. 44 at 1-6.] However, Petitioner's exhibits were all available prior to his trial or, at the latest, prior to his PCR hearing. He thus fails to show that any of the information contained in the exhibits could not have been previously discovered. Accordingly, the Court recommends that Respondent's motion to strike be granted.
Respondent's Motion for Summary Judgment
Under the AEDPA, a federal court may not grant relief unless the underlying state court decision was contrary to or an unreasonable application of federal law, as determined by the United States Supreme Court, 28 U.S.C. § 2254(d)(1), or based on an unreasonable determination of the facts before the court, id. § 2254(d)(2). The Supreme Court has held the “contrary to” and “unreasonable application of” clauses present two different avenues for relief. Williams, 529 U.S. at 405. The Court stated there are two instances when a state court decision will be contrary to Supreme Court precedent:
A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases.... A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.Id. at 405-06. Additionally, a state court decision is an unreasonable application of Supreme Court precedent when the decision “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” Id. at 407-08; see also Richter, 562 U.S. at 102 (“Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.... It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.”). Finally, a decision cannot be contrary to or an unreasonable application of Supreme Court precedent unless applicable Supreme Court precedent exists; without applicable Supreme Court precedent, there is no habeas relief for petitioners. Virsnieks v. Smith, 521 F.3d 707, 716 (7th Cir. 2008); see Bustos v. White, 521 F.3d 321, 325 (4th Cir. 2008).
Ground One - Alleged Brady Violation
In Ground One, Petitioner argues the State failed to disclose three pieces of material, exculpatory evidence from a potential State witness, Vander McCray, thus violating Petitioner's due process rights under Brady v. Maryland. [Doc. 1 at 5-14.] Respondent admits this ground is properly preserved and contends the PCR court properly applied Brady and based its decision on a reasonable determination of the facts. [Doc. 23 at 18-21.]
“A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused.” Youngblood v. West Virginia, 547 U.S. 867, 869 (2006) (per curiam). The government's duty under Brady “extends to impeachment evidence as well as exculpatory evidence . . . and Brady suppression occurs when the governmental fails to turn over even evidence that is ‘known only to police investigators and not to the prosecutor.'” Id. at 869-70 (quoting Kyles v. Whitley, 514 U.S. 419, 438 (1995)). “[E]vidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id. at 870 (internal quotation marks omitted). A conviction must be reversed upon a “showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435.
Here, as stated, Petitioner alleges the prosecution failed to produce a statement from McCray. At the PCR hearing, the parties stipulated that the prosecution's investigator, Dale Long, interviewed McCray and submitted the proffer agreement, interview report, and a follow-up letter from McCray to the solicitor into evidence. [App. 770-71 (stipulation), 1135 (interview report), 1140-42 (proffer agreement), 1158-59 (letter from McCray to solicitor).]
McCray had been in lock-up with Petitioner's co-defendant Cottrell and claimed Cottrell confided in him about his crimes, including Love's murder. [App. 1135.] The solicitor's office sent Long to interview McCray at the jail concerning information that Cottrell purportedly shared with McCrary. [App. 916, 1037-38.] McCray executed a proffer agreement on February 13, 2004, and told Long the following regarding Cottrell's account of Love's murder in a March 11, 2004 interview:
[Cottrell] had given approximately one-ounce of marijuana to Johnathon Love, which Love used and never paid for. McCray stated [Cottrell] acted friendly towards Love so he would not be afraid. [Cottrell] then lured Love to an area in Marion County and had him [] dig a grave for someone he was going to kill. MrCray reported that [Cottrell] admitted he shot Love in the head and chest once. Love had dug the grave. McCray stated [Cottrell] admitted that only he and Love were present when Love was murdered.[App. 1135 (March 11, 2004 interview report), 1140-42 (signed proffer agreement).] The remainder of the information McCray provided concerned Cottrell's murder of a Myrtle Beach police officer. [See App. 1135.] After the interview, McCray wrote a letter to the solicitor in charge of Cottrell's capital case, Greg Hembree, who is now a South Carolina Senator. [App. 1158-59.] In the letter, McCray told Senator Hembree he had spoken with Cottrell and “Mr. Fred” and had more information to provide. See id.
At the PCR hearing, Petitioner argued McCray's statement was exculpatory because it showed Cottrell had an independent motive to kill Love and confirmed Petitioner was not there when Love was shot. [App. 810-11.] Petitioner asserted Cottrell's representation, through McCray, that “only [Cottrell] and Love were present when Love was murdered” was inconsistent with the prosecution's theory of the case. [App. 810.]
The prosecutors testified the investigator's report was the type of evidence they would typically turn over to the defense but also maintained the position that the statement was not exculpatory. [App. 916-17, 940-41, 1034-35, 1043-45.] The prosecutors asserted Cottrell's “admission” that Petitioner was not present when Love was shot was entirely consistent with the State's theory of the case and evidence presented at trial that Petitioner and Lawson were back at the car when Cottrell committed the murder. [App. 919-20, 1034-35.] Solicitor Humphries also pointed out that McCray “was a well-known jailhouse snitch” and both prosecutors explained that much of the information McCray provided about how Cottrell murdered the police officer was inconsistent with the evidence. [App. 917-19, 941-43, 1035-36, 1038-39.]
Trial Counsel believed the investigator's report was the type of evidence that should have been disclosed because it was a “potential statement that may have come from the codefendant” and something he “would have liked to have had the opportunity to at least investigate.” [App. 1080, 1081.] However, he could not say whether he could or would have used the evidence at trial due to concerns over McCray's credibility and because he did not know what McCray would say on the stand. [App. 1080-81, 1082, 1117.] Trial Counsel agreed Cottrell's purported statement to McCray that Cottrell was alone when he shot Love was open to interpretation and Trial Counsel could not know exactly what that meant without speaking to McCray. [App. 1080-81.] Further, it was clear from McCray's letters to the solicitors that McCray was looking to exchange information for help with his sentence or prison conditions, essentially using Cottrell and Petitioner as bargaining chips. [App. 1082-84.] McCray's interests were, thus, not aligned with Petitioner's, raising even more concerns over how he would testify. [Id.] Regarding whether it was “possible” the disclosure of McCray's statement could have changed the outcome at trial, Trial Counsel stated:
The word possible is such a big word. I mean, it's possible . . . that we have an earthquake tonight or today or a tsunami, but . . . it's too speculative for me to give a definitive answer. I guess anything is possible, but without knowing the specifics of Vander McCray's full statement and those sort of things, . . . it's very speculative.[App. 1117.]
The PCR court summarized the hearing testimony, recited the Brady standard, and found as follows:
This Court finds Investigator Long's report of his interview with McCray was not disclosed. This Court feels certain the non-disclosure was not intentional, but of course, this does not change the analysis. This Court agrees with the prosecutors that the statement was not inconsistent with the State's evidence at trial, although it certainly would be preferable such a document would have been turned over, as the prosecutors acknowledge.
This Court notes trial counsel's closing argument, recognizing the State's theory of the case as follows: “In fact, the evidence is that at the time of the killing the only evidence produced by the State is that my client was in another location out of eyesight, could not see where the murder happened with the only witness who was there.” Counsel went on to argue that Lawson did no more than establish mere presence and argued the evidence only showed [Petitioner] led her away from the scene while “Cottrell went back into the woods and some shots were fired.”
However, the [Petitioner's] claim must ultimately fail on the lack of showing the statement was material in that there is any reasonable probability it would lead to useful evidence or affect the outcome of trial. The statement itself represents an out of court statement by Investigator Long as to an out of court statement by McCray, as to alleged admissions by Cottrell. McCray did not testify at this hearing, so this Court would need to speculate on whether McCray would have truly provided testimony that was exculpatory to [Petitioner] and that such testimony would be credible. This Court could not possibly know on the evidence presented if McCray was indicating [Cottrell] was alone because the others were back at
the car, or if Cottrell, as filtered through McCray, was claiming to be truly all alone in Marion County. This Court notes McCray's reputation for seeking a deal from prosecutors, the letter in the prosecution's file seemingly recanting some of his previous statement, and inconsistencies in the statement itself about [Cottrell's murder of the police officer], that are all additional factors that weigh even further against the likelihood McCray would offer helpful information for [Petitioner's] benefit if he testified at trial. This Court finds [Petitioner] failed to meet his burden to establish the interview report constituted material exculpatory information under Brady and denies this allegation.[App. 1199-1200 (citations omitted).]
In his habeas petition, Petitioner continues to assert McCray's statement was material and its exclusion prejudicial because it contradicted the state's evidence placing Petitioner at the car with Lawson, close to where Cottrell shot Love. [Doc. 1 at 9-14.] Petitioner argues the jury could have weighed McCray's statement against Lawson's testimony and possibly found McCray more credible because Lawson admitted to lying “in multiple statements” and provided inconsistent testimony. [Id. at 13-14.] Petitioner's reassertion of his previous argument is not enough to show the PCR court's decision is unreasonable.
Under Brady, “the materiality inquiry is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury's conclusions.” Strickler v. Greene, 527 U.S. 263, 290 (1999). “Rather, the question is whether ‘the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'” Id. (quoting Kyles, 514 U.S. at 435). The PCR court reasonably concluded Petitioner failed to meet this standard. Even if McCray's statement had been introduced at trial and had clearly indicated Petitioner was not anywhere near the crime scene, and if the jury had believed the statement over Lawson's testimony, the theories of the case would have remained the same. The state never sought to prove that Petitioner shot Love. And, whether he was waiting at the car or somewhere further away, the jury could have still concluded Petitioner was the mastermind who instructed Cottrell to commit the murder and was thus equally liable as an accomplice. “The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at 434. The PCR court reasonably found McCray's vague and ambiguous statement did nothing to undermine confidence in the jury's verdict. For these reasons, the Court recommends granting summary judgment as to Ground One.
Ground Two - Law Enforcement Presence
In Ground Two, Petitioner alleges Trial Counsel was ineffective for failing to object to the number of law enforcement personnel present both inside and outside of the courthouse throughout his trial. [Doc. 1 at 16-18.] He contends the “large amount of armed in uniform law enforcement during [his] entire trial branded [him] with an unmistakable mark of guilt while also conveying the impression that [he] was a danger to the witnesses, court, and community.” [Id. at 17.] Respondent asserts the PCR court's denial of this claim was reasonable in both fact and law. [Doc. 23 at 21-26.]
Respondent contends the portion of Petitioner's claim concerning the jury venire seeing him enter the courthouse in shackles and escorted by armed security was not presented in his PCR appeal and is thus defaulted. [Doc. 23 at 12-13.] In his reply, Petitioner clarifies that any reference to the jury venire was meant as support for his claim, and not as a separate allegation. [Doc. 39 at 9.]
In Strickland v. Washington, the United States Supreme Court established that to challenge a conviction based on ineffective assistance of counsel, a prisoner must prove two elements: (1) his counsel was deficient in his representation and (2) he was prejudiced as a result. 466 U.S. 668, 687 (1984). To satisfy the first prong, a prisoner must show that “counsel's representation fell below an objective standard of reasonableness.” Id. at 688. To satisfy the second prong, a prisoner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The Supreme Court has cautioned that “[j]udicial scrutiny of counsel's performance must be highly deferential,” and “[b]ecause of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
When evaluating a habeas petition based on a claim of ineffective assistance of counsel, assuming the state court applied the correct legal standard-the Supreme Court's holdings in Strickland-“[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard.” Richter, 562 U.S. at 101. “A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id.; see also Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (stating judicial review of counsel's performance is “doubly deferential when it is conducted through the lens of federal habeas”). Consequently, 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.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, the habeas court must determine whether it is possible for fairminded jurists to disagree that the arguments or theories supporting the state court's decision are inconsistent with Supreme Court precedent. Id.
The Court concludes that Petitioner cannot meet this standard here. Accounts of how much law enforcement was present during Petitioner's trial differ slightly. Petitioner testified he was being housed at the J. Reuben Long Detention Center in Conway, South Carolina throughout the trial and was transported to the Marion County Courthouse in a convoy that included three vans and two sheriff's cars. [App. 824-25.] He recalled law enforcement officers posted outside the courthouse and outside the courtroom in tactical gear and military fatigues, at least one of whom was carrying an assault rifle. [App. 825-26.] Petitioner stated the amount of security was overkill because he was not dangerous and had not attempted to escape. [App. 827-28.] However, on crossexamination, Petitioner admitted he had disciplinaries for possession of contraband and that a knife had been found in his cell. [App. 885.]
Solicitor Humphries recalled there being officers from Horry County, where Petitioner was housed; Marion County, where the trial was taking place; and the South Carolina Department of Corrections (“SCDC”), where Cottrell was on death row. [App. 902-03.] He explained that, in addition to being convicted of a capital murder, Cottrell was suspected of two other murders and had managed to make a handcuff key and a length of rope while incarcerated. [App. 903-04.] Solicitor Humphries testified that the amount of law enforcement seemed adequate but had no opinion as to whether it was “significant” or “excessive.” [App. 938.]
The Horry County Sheriff, Phillip Thompson, testified he was responsible for transporting Petitioner to and overseeing security matters at the courthouse during the trial. [App. 948-49.] According to records from the sheriff's office, five Horry County deputies transported Petitioner and worked the trial. [App. 950-51.] Sheriff Thompson explained that, “[a]ccording to the circumstances,” that number was not abnormal and that not all five deputies would be with Petitioner at once. [App. 952.] Per department policy, detainees were transported in three-vehicle convoys and the accompanying officers would be in uniform and carrying visible firearms-either shotguns or pistols. [App. 952-53.]
The Marion County Clerk of Court at the time in question, Sherry Rhodes, recalled there being “more security in the courtroom for [Petitioner's] trial” than normal. [App. 993, 995-96.] Mark Richardson, who was the Marion County Sheriff, indicated his office's job was to “secure the courthouse and the property around the courthouse and make sure that everybody inside coming and going [was] safe.” [App. 998, 999.] This was Sheriff Richardson's first murder trial and he considered it to be a high profile case. [App. 999-1000.] He recalled having eight or ten of his deputies assigned to Petitioner's trial and five Horry County officers escorting Petitioner. [App. 999, 1001 .]
Danny Barker, who was in charge of the Marion County probation and parole field office at the time of Petitioner's trial, had been present in the courthouse for every trial since 1999 and remembered there being “more security tha[n] would be normal for a normal term of court outside the courthouse” during Petitioner's trial. [App. 1005.] He recalled officers on the front steps of the courthouse and additional officers at the back side of the courthouse, all in uniform. [App. 1005-06.] Barker remembered most of the officers carrying standard handguns but did recall one officer on the front steps with a rifle. [App. 1006-07.]
Regarding security inside the courtroom, Barker described it as “definitely an increased presence of law enforcement officers from standard trials.” [App. 1007.] He and Sheriff Richardson met to discuss security prior to the trial and had concerns because there were two defendants and it was a high profile murder trial. [App. 1007-08.] He recalled there being between 15 and 20 uniformed, armed law enforcement officers in the courtroom during the trial, which included officers from Marion County, Horry County, and SCDC. [App. 1008.] In addition, Barker had agents in the courtroom who were not in uniform but were armed. [Id.] He recalled two SCDC officers sat next to the defendants, a deputy was stationed by the judge, another deputy was next to the witness box, one or two deputies were by the door, and the rest were distributed throughout the gallery. [App. 1008-09.]
Senator Hembree testified this was the first and only time he tried a case in Marion County, so he was not sure if the security presence was abnormal but he recalled there being about 12 officers present. [App. 1012.] He described several security concerns because of how the Marion County courthouse was laid out, including easy access to the street and the judges. [App. 1012-13.] The courthouse lacked modern security features and struck Hembree as requiring “additional manpower to provide the security features that in a modern courthouse” would be created by the “structure and design.” [App. 1013.] He explained that Cottrell had previously made implements to attempt to escape, slipped out of belly chains and attacked another inmate, and threatened guards at the jail. [Id.] As a result, Hembree had requested safekeeper status and moved Cottrell to SCDC as a pretrial detainee. [App. 1015-16.] In addition, Petitioner had been indicted for two murders and was known to be highly intelligent. [App. 1014, 1018.] Both defendants had run a successful drug business in Horry County and had “a number of confederates” in the community who may have been willing to help them escape. [App. 1018-19.] So, Hembree was not surprised by the amount of security present and found it appropriate under the circumstances. [App. 1014.]
Trial Counsel agreed the Marion County courthouse lacked a lot of “the normal security” features you would see in other courthouses. [App. 1089.] He testified the security inside the courtroom during Petitioner's trial was “more than normal,” in part because there were officers present from both Horry and Marion Counties and SCDC. [App. 1093.] He did not recall any officers being in riot gear or carrying assault rifles, just the typical uniform and sidearm. [App. 1093-94.] Trial Counsel did not think the amount of security was prejudicial to Petitioner and testified that, if he had, he would have raised the issue with the judge. [App. 1094.] He also noted the jurors, not having familiarity with the courthouse and procedures, likely would not have known if the amount of security present for Petitioner's trial was abnormal. [App. 1095.] Trial Counsel was generally aware at the time of case law addressing the potential for prejudice if too many uniformed officers are present at a trial and did not raise the issue “based on the nature of the trial, two defendants, death penalty or death row inmate,” and the nature of the Marion County courthouse. [App. 1119-20.]
Relying on Strickland and its South Carolina equivalents and the testimony summarized above, the PCR court found as follows:
This Court notes some discrepancies between the many witnesses on this subject. However, this Court notes the prosecutors and trial counsel, all who have a duty to ensure [Petitioner] received a fair trial, provided credible testimony that shows enhanced security was necessary under the circumstances, but it was not of the nature that impeded [Petitioner's] right to a fair trial. This Court finds their testimony credible and gives it great weight. In contrast, this Court finds [Petitioner's] testimony is at best, exaggerated, and does not find it credible on this matter.
This Court notes the co-defendant was on death row and a significant escape risk, [Petitioner] and co-defendant collectively were accused of three murders and an attempted arson that seemed to be an attempted murder, they both had contacts with the criminal elements of their county and, as Senator Hembree points out, [Petitioner] had the ability to recruit people for his criminal plans. The court[]room, the same one which this PCR hearing was held in, is a small courtroom that was not designed with modern security concerns in mind. Under these circumstances, heightened security was warranted. However, based on the evidence presented, this Court does not believe it impacted [Petitioner's] ability to receive a fair trial; this Court finds [Petitioner] has not met his burden of proving so. This Court finds the security provided during trial was not inherently prejudicial. Holbrook v. Flynn, 475 U.S. 560 (1986). This Court finds [Petitioner] has not established that counsel's performance was deficient in this regard and further that [Petitioner] was not prejudiced by the alleged deficiency.[App. 1187.]
Petitioner contends the amount of security was indeed prejudicial. [Doc. 1 at 16-18.] However, the Court concludes that Petitioner cannot meet the AEDPA standard regarding the PCR court's findings. The PCR court properly relied on and applied the Supreme Court's holdings in Strickland and Holbrook v. Flynn, 475 U.S. 560 (1986). In Holbrook, the Court addressed “whether a criminal defendant was denied his constitutional right to a fair trial when, at his trial with five codefendants, the customary courtroom security force was supplemented by four uniformed state troopers sitting in the first row of the spectator's section.” 475 U.S. at 562. The Court found the noticeable deployment of security personnel in a courtroom during trial is not necessarily inherently prejudicial to a defendant and must be evaluated on a case-by-case basis. Id. at 568-69. “All a federal court may do in such a situation is look at the scene presented to jurors and determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to defendant's right to a fair trial; if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.” Id. at 572. Relevant factors may include the number of officers, how they were dressed and armed, and where they were positioned within the courtroom. See id. at 569-72. That is exactly how the PCR court evaluated Petitioner's claim. [ See App. 1184-87 (summarizing hearing testimony related to the number of officers present, what type of clothes or uniform they were wearing, whether and how they were armed, and where they were positioned in the courtroom, as well as evidence related to the particular security risk posed by Petitioner and Cottrell, the layout of the courthouse and courtroom, and public interest in the trial).]
Much of Petitioner's argument centers on Solicitor Humphries's referencing security in his closing argument. [See Docs. 1 at 17-18; 39 at 28-39.] During the trial, the State's star witness, Lawson, began to hyperventilate on the stand after expressing her fear of Petitioner. [App. 261-64.] Humphries referenced Lawson's breakdown in his closing, stating:
I submit to you that if all we had put up on this stand in this case . . . in which [Lawson] testified based on her truthful demeanor, that this case with that evidence alone would have warranted verdicts of guilty for murder for both these defendants. What kind of person, what kind of people could inspire such fear in one individual? What kind of people could cause a witness in a protected courtroom with armed deputies all around, what kind of people could inspire such fear.[App. 555.] Cottrell's defense attorney objected and the judge sustained the objection and instructed the jury to disregard the comment. [App. 555-56.] Trial Counsel's failure to object to this statement was raised and ruled on as a separate, distinct claim in Petitioner's PCR application and not raised in his PCR appeal. [See App. 1180; Doc. 23-10 at 3.] Petitioner has not raised that issue in his habeas petition and it is, thus, not before this Court.
Petitioner also challenges the PCR court's finding that his testimony on this issue was exaggerated and not credible. [Doc. 39 at 37.] In support, Petitioner cites the same hearing testimony on which the PCR court relied and asserts it is “clear from the record of the proceedings that [Petitioner's] testimony is consistent with the testifying officials thus putting the [Respondent's] version in dispute.” [Id.]
“[F]or a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear.” Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008). “Indeed, ‘federal habeas courts [have] no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.'” Id. (quoting Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). Here, the PCR court accurately summarized each witness's account of the security presence inside and outside of the courtroom and found Petitioner's account was not credible. Petitioner's reliance on the same evidence does not show a “stark and clear” error by the PCR court. Further, even if this Court improperly ignored the PCR court's credibility finding and assumed Petitioner truthfully testified that some guards were in tactical gear and carrying shotguns, that would not automatically negate the PCR court's analysis. Even under those circumstances, prejudice is not assumed, nor is trial counsel required to object.
Because the PCR court properly applied the controlling Supreme Court precedents and based its decision on a reasonable interpretation of the facts, the Court recommends granting Respondent's motion for summary judgment as to Ground Two.
Ground Three - The Stun Belt
In Ground Three, Petitioner asserts Trial Counsel was ineffective for failing to object to the requirement that Petitioner wear a stun belt throughout his trial. [Doc. 1 at 19-23.] Respondent contends the PCR court's decision on this issue was reasonable in both fact and law. [Doc. 23 at 26-28.]
At the PCR hearing, the parties stipulated that Petitioner was required to wear a stun belt for the entirety of his trial, that Cottrell's stun belt had accidentally activated during his prior death penalty trial, and that Cottrell had told Petitioner what happened and what it felt like. [App. 764-65.] Trial Counsel knew Petitioner was wearing a stun belt and did not recall it being visible or hindering Petitioner's ability to take notes or speak with counsel during the trial. [App. 1095-96.] He agreed he did not make a motion regarding the stun belt, explaining he was not familiar with Deck v. Missouri at the time but did not think a specific finding was necessary where the restraint was hidden and not seen by the jury. [App. 1096-97.] Both prosecutors remembered Petitioner speaking with counsel “constantly,” taking copious notes, and actively participating in the proceedings. [App. 905-06, 1020-21.]
The Supreme Court decided Deck in May 2005, only months prior to Petitioner's trial. See Deck v. Missouri, 544 U.S. 622 (2005).
On this issue, the PCR court found as follows:
This Court notes that Deck prohibits the routine use of visible shackles without specific findings of a special need, and does not speak as to restraints that are not visible to the jury. This Court finds that case law at the time of trial did not require[] the trial court to make a finding of a special need for non-visible restraints such as a stun belt. Indeed, neither our state court nor the Fourth Circuit has established such a rule as of [the] time of the PCR hearing. See also Earhart v. Kontch, 589 F.3d 337, 347-48 (6th Cir. 2009) (finding no error in requiring the defendant to wear a stun belt during trial where the stun belt was not visible to the jury); Mungo v. United States, 987 A.2d 1145, 1150 (D.C. Ct. App. 2010) (finding the trial court did not err in holding a hearing on the propriety of making the appellant wear a stun belt; all authorities relied upon to establish a due process violation came from different jurisdictions and were issued after appellant[']s 2000 trial; the appellate court noted, “[C]ritical to our analysis, neither the United States Supreme Court nor this court has ever held that a stun belt qualifies as a type of physical restraint whose use is subject to the strictures that the Supreme Court set out in Deck); Commonwealth v. Lopez, 854 A.2d 465, 469-70 (Pa. 2004) (rejecting the claim the defendant's rights were violated because he was forced to wear a stun belt, noting evidence supporting concerns he would attempt to escape. The belt was not visible to the jury. The defendant claimed the belt constricted his breathing and movement and interfered with his Sixth Amendment right to assist counsel. The court rejected the claim because the defendant failed to show that but for the belt, the result of the trial would have been different. The court held, “It is difficult to ascertain what prejudice allegedly resulted from appellant's wearing the belt, beyond the prejudice of not being able to escape.”).
This Court finds that the stun belt was not visible to the jury. This Court also rejects [Petitioner's] claims that he was impeded in any manner from assisting his attorneys and is concerned about the lack of candor in [Petitioner's] testimony on the subject. This Court finds credible the testimony of the prosecutors and trial counsel on this matter and finds
[Petitioner] was able to assist his trial counsel. This Court also rejects [Petitioner's] claim that the stun belt contributed to [Petitioner's] decision to not testify. This Court notes the trial court's colloquy with [Petitioner] and the absence of any concerns raised by [Petitioner] about his ability to testify due to the stun belt. This Court finds [Petitioner's] testimony on the subject is simply not credible.
This Court finds counsel's performance was not deficient for failing to object to the stun belt. Further, this Court finds [Petitioner] was not prejudiced by the alleged deficiency as under the circumstances, requiring [Petitioner] to wear the stun belt was not unreasonable and did not have any effect on [Petitioner's] ability to receive a fair trial.[App. 1188-90 (internal citation omitted).]
The PCR court properly applied the controlling Supreme Court precedent governing Strickland and that governing physical restraints in the courtroom. “[T]he Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial.” Deck v. Missouri, 544 U.S. 622, 629 (2005). This rule is intended to head off potential prejudice. See id. at 635 (“[W]here a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove ‘beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained.'” (quoting Chapman v. California, 386 U.S. 18, 24 (1967)). Accordingly, the constitutional prohibition and required factual determination is limited to the use of visible restraints. Id. at 624.
Petitioner does not allege his stun belt was visible to the jury but continues to assert that counsel should have objected to its use and requested a hearing regarding whether the restraint was necessary and that his failure to do so prevented appellate review of the issue. [Doc. 1 at 21.] Petitioner also reasserts his claim that the stun belt was uncomfortable and he was afraid of it activating after Cottrell was accidentally shocked. [Id. at 20-23; Doc. 39 at 40-48.] According to Petitioner, the fear and discomfort prevented him from effectively communicating with his attorney or taking the stand. [Docs. 1 at 20-23; 39 at 40-48.]
Petitioner also asserts a related Eighth Amendment violation in his response to Respondent's motion for summary judgment. [See Doc. 39 at 40.] Petitioner may not raise a new claim in his response. See White v. Roche Biomedical Lab'ys., Inc., 807 F.Supp. 1212, 1216 (D.S.C. 1992) (noting that “a party is generally not permitted to raise a new claim in response to a motion for summary judgment”); see also Neumon v. Cartledge, C. A. No. 8:14-2256-RMG, 2015 WL 4607732, at *9 n.9 (D.S.C. July 31, 2015) (applying Roche in a federal habeas action).
The law recognizes that “[e]ven if the physical restraints placed upon the defendant are not visible to the jury, they still may burden several aspects of a defendant's right to a fair trial,” including his ability to confer with counsel and decision whether to testify. United States v. Durham, 287 F.3d 1297, 1304, 1305-06 (11th Cir. 2002). For this reason, some Circuits encourage courts to carefully consider whether the use of a stun belt is necessary and to make related factual findings on the record. Id. at 1306-08 (concluding that “a decision to use a stun belt must be subjected to the same close judicial scrutiny required for the imposition of physical restraints”). However, as discussed above, controlling Supreme Court precedent does not require an on-the-record hearing justifying the use of a stun belt.
Moreover, the issue before the Court at this juncture is whether the PCR court reasonably concluded Trial Counsel was not ineffective for failing to object to the use of the stun belt and request a hearing. Petitioner fails to show the PCR court's decision unreasonably applied controlling Supreme Court precedent or relied on an unreasonable interpretation of the facts. “Omitting a motion directed to [a] stun belt is not the sort of inexplicable omission that renders even an apparently sturdy defense so deficient that the representation as a whole fell below an ‘objective standard of reasonableness.'” Bland v. Hardy, 672 F.3d 445, 451 (7th Cir. 2012) (quoting Strickland, 466 U.S. at 688). And, although Petitioner disagrees with the PCR court's interpretation of the facts, that disagreement alone is not enough to show the court's findings, which are supported by the record, are unreasonable or unreliable. See 28 U.S.C. § 2254(e)(1) (state court factual findings, including credibility determinations, are presumed correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence); Wilson v. Ozmint, 352 F.3d 847, 858 (4th Cir. 2003). For these reasons, the Court recommends granting Respondent's motion for summary judgment as to Ground Three.
Ground Four - Cumulative Ineffective Assistance
In Ground Four, Petitioner argues that the cumulative effect of the errors alleged in his Petition violated his Sixth and Fourteenth Amendment rights. [Doc. 1 at 25.] However, claims of ineffective assistance of counsel must be reviewed individually, not collectively. See Fisher v. Angelone, 163835, 852 (4th Cir. 1998). Because the PCR court found that Trial Counsel did not provide ineffective assistance of counsel, a cumulative error analysis would not be proper under federal law. See United States v. Russell, 34 Fed.Appx. 927, 927 (4th Cir. 2002) (Fisher . . . held that it is not appropriate to consider the cumulative effect of attorney error when the individual claims of ineffective assistance do not violate the defendant's constitutional rights.”). Accordingly, the Court recommends granting Respondent's motion for summary judgment as to Ground Four.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Respondent's motion to strike [Doc. 41] be GRANTED, that Respondent's motion for summary judgment [Doc. 24] be GRANTED, and that the Petition be DENIED.
IT IS SO RECOMMENDED.