Opinion
C/A 5:23-3556-MGL-KDW
08-26-2024
Tashon Earl Hurell, Petitioner, v. Brian Kendall, Respondent.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Tashon Earl Hurell (“Petitioner”) is a state prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 24, 25. On October 31, 2023, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 26. After obtaining one extension, ECF No. 30, Petitioner filed a Response in Opposition to Respondent's Motion on December 15, 2023, ECF No. 32.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 25, be granted, and this Petition be denied.
The factual background is taken, verbatim, from the Court of Appeals August 1, 2018, order affirming Petitioner's conviction. App. 446-50. Citations to “App.” refer to the Appendix for Petitioner's trial transcript and Post-Conviction Relief (“PCR”) Proceedings and the page numbers on the top of the page. That appendix is available at ECF 24-1 to 24-3 in this habeas matter.
Mary Pecorora (the victim) testified she was working the night shift at the Kangaroo convenience store in Summerville on April 23, 2014. While in the bathroom to get supplies, she heard the store buzzer, indicating someone had entered the store. As she approached the front door, someone came around a corner, yelled at her, and hit her in the head with a bat. The perpetrator wore a mask, told her, “You gonna get it[,] *itch,” and threatened to cut her throat. The victim testified the perpetrator grabbed her by the neck, dragged her to the cash register, and forced her to open it. He grabbed the money, jumped over the counter, and left. The victim described the perpetrator as approximately 5' 10” or 5' 11”, “kind of slender,” and African American. She testified he was wearing a ski mask, a bandana, a hooded jacket, gloves, and red shoes. The victim called 911, and officers responded. The victim's injuries required facial and sinus surgeries.
Bernard Nelson of the Summerville Police Department testified he responded to the 911 call. Nelson took numerous photographs of the scene, including photos of a footprint on the counter. Nelson also viewed the store's video surveillance tape. Based on the victim's description and the videotape, Nelson passed a description to other police units of a “black male subject wearing a light hoodie with ... multi-colored graphic designs on the front. Bright lime green hoodie, black pants, red shoes, black gloves, dark colored bandanna over his face.” Nelson also testified the suspect was of medium build, had a husky voice, and was carrying a baseball bat.
Hobie Williams, then of the Summerville Police Department, testified he was a K-9 handler on the night of the robbery. He arrived at the scene-and-deployed his dog near the rear of the store to track the freshest human odor to be found. The canine tracked to apartments near the store. There is a footpath between the locations, and it takes between thirty and ninety seconds to walk the path. Williams and another officer walked around the first building of the apartment complex and spoke to a male, who was outside on his upper level balcony. The male reported seeing a black male running from around the building carrying a baseball bat and wearing a dark tee shirt, baseball cap, and dark shorts. He also reported the man jumped the balcony beneath his, drove away in a white Mustang, returned, jumped the balcony again, and left a second time in the Mustang. The witness had never before seen the car at the apartment complex.
Williams testified he saw a dollar bill laying on the ground in the balcony area1 of the lower unit. Although the ground was wet, the bill was dry and appeared to have blood on it. Williams testified he went into the building and made contact with the occupant of the unit in question. Hurell's sister, Tashima Jones, answered the door. Jones permitted Williams to retrieve the dollar bill from her balcony. Hurell's brother, Traquan, was also in the apartment. Williams identified the dollar bill during the trial.
Lucas Hartman testified he was the man interviewed by Williams. Hartman testified he was on his balcony at approximately 1:30 a.m. when he saw a man wearing black shorts and carrying a baseball bat and backpack approaching from behind the building across from Hartman's building. The men nodded at each other. Hartman next witnessed the man jump over the balcony beneath his balcony. Hartman heard the door open and close before the man came back out, drove away in a white Mustang, returned, and did the “same exact thing.” According to Hartman, he assumed the man entered the apartment for a few minutes on each return. Hartman testified that although he was unequivocal about the make of the vehicle in his initial statement, he was not an expert on vehicles and the vehicle may not have been a Mustang. During cross-examination, he admitted he first learned the vehicle could have been a Pontiac Grand Am from Officer Williams. On re-direct examination, Hartman insisted he was never positive the vehicle was a Ford Mustang.
Michael Weaver, a detective with the Summerville Police Department, testified he was the on-call detective on April 23, 2014. Later that day, Weaver obtained a search warrant for Jones's apartment. Because no one was home when he attempted to search, Weaver obtained a key to the apartment from the apartment manager. His search resulted in a bat, a bandanna, and two pairs of red shoes, all of which were found to be irrelevant and returned to Jones. After his search and visit to the manager's office to return the key, Weaver noticed a white Pontiac Grand Am in front of the apartment. Because one of the reports had listed a white vehicle rather than a white Mustang, Weaver went back to the apartment because he believed the two vehicle makes were similar. Hurell and his mother, Jana Hurell, were there. The white vehicle was a Pontiac owned by Mrs. Hurell.
Hurell objected to any testimony of his interactions with Weaver, arguing he attempted to end the conversation with law enforcement because Hurell told Weaver, “I'm not giving you anything.” During a proffer of the evidence, Weaver's report indicated Hurell walked away from him, then came back and laughed when shown a photograph of the lime green sweatshirt, saying, “[W]hy would someone wear something like this?” The trial court admitted the evidence, and Weaver testified Hurell laughed when shown the photo of the suspect wearing the sweatshirt during the robbery. Weaver claimed Hurell then asked why anyone would wear a sweatshirt like that during something like this.
Travis Holdorf testified he knew Hurell at the time of the robbery and knew Hurell's cell phone number at the time as ***-2320. Marilyn Dilly, of Sprint as a reseller for TracFone,2 testified as a records custodian of Hurell's cell phone records for the period April 22-24, 2014. George Floyd of Verizon Wireless also testified as a records custodian, and the records for Hurell's cell phone were introduced. Floyd testified there were cell towers at 10870 Dorchester Road and at 132 Trailing Alley, both in Summerville. According to Floyd, towers in rural areas such as the Summerville towers are between three and five miles apart.
Detective Weaver testified he obtained Traquan's phone records. At the time of the robbery, Traquan was on the phone from 12:21 a.m. until 2:11 a.m. He then hung up for a few moments and got back on the phone at 2:12 a.m. As to Hurell's phone, there was no activity during the time the robbery was commenced between 12:55 a.m. and 1:10 a.m. His phone was used beginning at 1:10 a.m. and pinged off the cell tower on Dorchester Road near the store. It switched to the cell tower near Hurell's mother's house, then back to the tower on Dorchester Road over an eighteen minute period. The phone was used again at 7:08 a.m. at the tower near the store. The phone then repeatedly called the telephone number for the Greyhound Bus Lines at 8:41 a.m.
The State called Shelby Bradt, the former girlfriend of Hurell's brother, Tremaine. Hurell objected, arguing her testimony would be to claim the perpetrator on the store videotape was not Tramaine, the evidence was inadmissible as lay opinion testimony, and it was irrelevant. The court overruled the objection, and Bradt testified she viewed the store videotape and the perpetrator did not look or sound like Tramaine. Bradt also testified she had never seen Tramaine wearing the green sweatshirt.
Weaver retrieved the South Carolina Department of Motor Vehicle (DMV) records for Jones's address, which indicated the residents were Jones, Hurell, and Traquan. Weaver created three six-pack photo lineups, each of which included one of the three Hurell brothers: Hurell, Traquan, and Tramaine. The victim identified Tramaine, whom she recognized as a regular customer, as having been outside the store when her shift began the night of the robbery, but she could not identify the perpetrator. Weaver also testified he reviewed the video of the robbery with the victim and neither he nor the victim thought the perpetrator sounded like Tramaine.
Tashima Jones, Hurell's sister, testified she lived in the apartment with Traquan and her son at the time of the robbery. According to Jones, Hurell alternately lived with their mother and his girlfriend. She testified she did not recognize the green sweatshirt. During direct testimony, Jones was asked about Hurell listing her address as his own with the DMV. She replied, “Prior to him getting out from serving some time, . . .” Hurell moved for a mistrial. After conferring with Hurell, his attorney withdrew the motion. Outside of the presence of the jury, the court questioned Hurell about the withdrawal of the motion and cautioned Jones, Tramaine, and Traquan about referring to Hurell's prior criminal activities while testifying.
Detectives Weaver and Nick Santana interviewed Hurell's brother, Traquan, at Bi-Lo, where Traquan worked. Traquan testified he was shown the video of the robbery, he did not recognize the perpetrator, and the green sweatshirt was not his. Detective Weaver was recalled and testified Traquan told him during an initial interview that the character on the sweatshirt was a Tasmanian Devil and the sweatshirt had been given to him by a friend. Santana testified he assisted during the investigation and was present when Traquan recognized the sweatshirt.
Weaver reviewed Hurell's Facebook page and saw photographs of shoes similar to those worn by the perpetrator. Derek Cheek, then of the Dorchester County Sheriffs Office, testified he reviewed the Facebook photographs in the investigatory file and noted Hurell wearing red and black shoes similar to those worn by the perpetrator in the surveillance videotape. Cheek also testified he reviewed websites of shoes, and a tread pattern in blood found at the site of the robbery was consistent with the tread pattern of red and black Nike shoes similar to those seen on the videotape. Hurell objected to the shoe evidence as irrelevant.
Samuel Stewart, a DNA analyst with the South Carolina Law Enforcement Division (SLED), testified as an expert that the blood on the dollar bill found outside Jones's apartment matched the victim's blood.
The State rested. Hurell moved for directed verdicts on all charges, which the court denied. Hurell moved for a mistrial when the jury requested to review his sister's testimony again, and asked, “Did she say when he got out he sometimes stayed with her?” The jury subsequently sent a note to disregard the previous note. The court denied the motion for a mistrial. After more than four hours of deliberation, the court gave an Allen3 charge. After the jury rendered its verdicts of guilty on all three charges, Hurell renewed his motion for a mistrial and moved to set aside the verdicts. The trial court denied the motions and sentenced Hurell to three concurrent thirty year terms of imprisonment.
1 The balcony is also described in the record as a breezeway. The photographic exhibit depicts a porch area on the ground level apartment, enclosed with a waist-high railing.
2 Dilly testified TracFone is a reseller of Sprint, sells prepaid phones, and keeps its own records.
3 Allen v. United States, 164 U.S. 492, 501 (1896) (discussing the jury charge given by a trial judge to encourage a deadlocked jury to reach a verdict).App. 446-50.
Petitioner is currently incarcerated in the Lieber Correctional Institution of the South Carolina Department of Corrections. ECF No. 1 at 1. He was indicted at the March 2015 term of the Dorchester County Grand Jury on attempted murder, kidnapping, and armed robbery. App. 368-73. Petitioner proceeded to a jury trial on February 8 to 10, 2016, before the Honorable Edgar W. Dickson, Circuit Court Judge. App. 1 et. seq. Petitioner was represented by John Loy, Esq. and Assistant Solicitors Glenn Justis and Kyle Ward represented the State. App. 1. The jury found Petitioner guilty as indicted and Judge Dickson sentenced Petitioner to 30 years imprisonment. App. 357, 366.
This was Petitioner's second trial on these charges. The first trial ended in a mistrial. See App. 490-91.
Petitioner appealed his sentence to the South Carolina Court of Appeals (“Court of Appeals”). App. 377-411. Petitioner was represented by Chief Appellate Defender Robert M. Dudek, South Carolina Commission on Indigent Defense. App. 377. Petitioner raised the following issues on appeal:
1. Whether the court erred by refusing to direct a verdict on all three counts where the state did not present substantial circumstantial evidence placing appellant at the scene of the convenience store robbery, the state's circumstantial evidence only raised appellant's guilt, and the judge incorrectly reasoned the directed
verdict standard had changed?
2. Whether the court erred by allowing Shelby Bradt, the former girlfriend of appellant's brother, to testify appellant's brother was not the masked robber in the convenience store video, since appellant's brother was not on trial, and this evidence was consequently confusing and irrelevant?
3. Whether the court erred by refusing to declare a mistrial when it was clear the jury was discussing the fact that appellant's sister had inadvertently told the jury that appellant had been in prison as a result of a prior conviction, since appellant's prior record being the subject of jury deliberations constituted conclusive evidence the jury was impermissibly considering it as far as his guilt or innocence in this case?
4. Whether the court erred by allowing Detective Weaver to testify that appellant started laughing when Detective Weaver showed him a photograph of the sweatshirt the robber wore during the robbery while “holding the victim” in this attempted murder case, since it was irrelevant, and any probative value it had was substantially outweighed by its unduly prejudicial effect?
5. Whether the court erred by admitting photographs and testimony about red and black shoes, since there was no foundation for this evidence, it therefore was not relevance since the internet “shoes evidence” was not linked to the crime, and it therefore only invited confusing speculation?App. 382-83. The State filed a final brief of respondent on October 2, 2017. App. 414-41. On August 1, 2018, the Court of Appeals filed a decision afforming Petitioner's convictions. App. 445-56.
II. Procedural History
Petitioner filed an Application for Post-Conviction Relief (“PCR”) on September 25, 2018. App. 457-62. Petitioner asserted he was being held in custody unlawfully because of ineffective assistance of trial and appellate counsel, police committed perjury to obtain arrest warrant, and insufficient indictment, police perjury, and misconduct. App. 459-62. Petitioner filed an Amendment to his PCR Application on September 3, 2019, alleging additional ineffective assistance of trial counsel claims. App. 480-81.
A PCR motion hearing convened on September 11, 2019, before the Honorable Diane Shafer Goodstein, Circuit Court Judge. App. 482-594. Petitioner was present and represented by Attorney Leslie T. Sarji, and Assistant Attorney General Benjamin H. Limbaugh appeared on behalf of the State. See Id. Petitioner, his mother Janah Hurell, his brother Tremaine Hurell, his ex-girlfriend Julia Piper Simmons, his sister Tashima Jones, private investigator Jather Stevens, and his trial counsel John Loy testified at the hearing. Id.
The PCR court denied and dismissed Petitioner's PCR Application with prejudice in an order filed on April 21, 2020, making the following findings of fact and conclusions of law:
FINDINGS OF FACTS AND CONCLUSIONS OF LAW
This Court has thoroughly reviewed the record in its entirety. Additionally, this Court heard the testimony presented at the evidentiary hearing and was able to observe the witnesses presented, which allowed the Court to scrutinize the credibility presented. Set forth below are the relevant findings of facts and conclusions of law as required pursuant to S.C. Code Ann. § 17-27-80 (1985).
The Sixth Amendment to the United States Constitution guarantees a defendant the right to effective assistance of counsel. U.S. Const. amend VI; Strickland v. Washington, 466 U.S. 668 (1984); Lomax v. State, 379 S.C. 93, 665 S.E.2d 164 (2008).
In a post-conviction relief action, an applicant bears the burden of proving the allegations in his or her application. Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985). Where the application alleges ineffective assistance of counsel as a ground for relief, the applicant must prove that “counsel's conduct so undermined the proper functioning of the adversarial process that [it] cannot be relied upon as having produced a just result.” Strickland, 466 U.S. 668; Butler, 286 S.C. at 442, 334 S.E.2d at 814.
Strickland does not guarantee perfect representation, only a “‘reasonably competent attorney.'” 466 U.S. at 687 (quoting McMann v. Richardson, 397 U.S. 759, 770 (1970)); Representation is constitutionally ineffective only if it so undermined the proper functioning of the adversarial process” that the defendant was denied a fair trial. Strickland, 466 U.S. at 686. Just as there is no expectation that competent counsel will be a flawless strategist or tactician, an attorney may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what appear to be remote possibilities. See generally Id.
In evaluating allegations of ineffective assistance of counsel, the reviewing court applies the two-pronged test outlined in Strickland, 466 U.S. 668. First, an applicant must prove that counsel's performance was deficient. Id.; Cherry v. State, 300 S.C. 115, 117, 386 S.E.2d 624, 625 (1989). Under this prong, the court measures an attorney's performance by its “reasonableness under prevailing professional norms.” Cherry, 300 S.C. at 117, 386 S.E.2d at 625 (quoting Strickland, 466 U.S. at 690). The proper measure of performance is whether an attorney provided representation within the range of competence required in criminal cases. Butler, 286 S.C. at 442, 334 S.E.2d at 814. “Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. (citing Strickland, 466 U.S. at 690). The applicant must overcome this presumption to receive relief. Cherry, 300 S.C. at 118, 386 S.E.2d at 625. Second, counsel's deficient performance must have prejudiced the applicant such that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Cherry, 300 S.C. at 117-18, 386 S.E.2d at 625.
Although courts may not indulge “post hoc rationalization” for counsel's decision making that contradicts the available evidence of counsel's actions, Wiggins, 539 U.S. at 526-527, neither may they insist counsel confirm every aspect of the strategic basis for his or her actions. There is a “strong presumption” that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than “sheer neglect.” Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam). After an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better, and, in the course of that reflection to magnify their own responsibility for an unfavorable outcome. Strickland, however, calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind. Id. at 688; Harrington v. Richter, 562 U.S. 86 (2011).
With respect to prejudice, an applicant must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. It is not enough “to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Counsel's errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687; Harrington, 562 U.S. 86.
Surmounting Strickland's high bar is never an easy task. Padilla v. Kentucky, 559 U.S. 356, 371 (2010). An ineffective assistance of counsel claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest “intrusive post-trial inquiry” threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U.S. at 689-690. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings knew of materials outside the record and interacted with the client, with opposing counsel, and with the judge. It is “all too tempting” to “second-guess counsel's assistance after conviction or adverse sentence.” Id. at 689; sec also Bell v. Cone, 535 U.S. 685, 702 (2002); Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). The question is whether an attorney's representation amounted to incompetence under “prevailing professional norms,” not whether it deviated from best practices or most common custom. Strickland, 466 U.S. at 690.
In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. Wong v. Belmontes, 558 U.S. 15 (2009); Strickland, 466 U.S. at 693. Instead, Strickland asks whether it is “reasonably likely” the result would have been different Id. at 696. This does not require a showing that counsel's actions “more likely than not altered the outcome,” but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters “only in the rarest case.” Id. at 693, 697. The likelihood of a different result must be substantial, not just conceivable. Id. at 693; Harrington, 562 U.S. 86.
Based on this standard set forth above, this Court finds Applicant has failed to meet his requisite burden of establishing any constitutional ineffectiveness of counsel as to any of his various allegations. Each allegation is addressed fully below:
Allegation: Advising Applicant to Waive Right to Mistrial
Applicant alleges trial counsel was ineffective for advising him to waive the motion for mistrial. Counsel initially moved for a mistrial following testimony from
Applicant's sister that Applicant used her address “prior to him getting out from serving some time.” Applicant testified that he remembered counsel initially moving for a mistrial. Applicant testified that he recalled discussing with counsel whether or not he wanted to go forward with the mistrial motion or proceed with the trial. Applicant testified that counsel told him that it was ultimately his decision as to whether or not to move forward with the mistrial motion and that he chose to proceed with trial. Counsel testified that he discussed the mistrial motion with Applicant and that he told Applicant that it was his decision as to how he wanted to proceed. Counsel testified that it was ultimately Applicant's decision to withdraw the motion and proceed with the trial. Even if counsel did not withdraw the motion, there is no indication that the grounds for the motion were sufficient for the court to grant a mistrial.
“The decision to grant or deny a mistrial is within the sound discretion of the trial court. The trial court's decision will not be overturned on appeal absent an abuse of discretion amounting to an error of law.” State v. Wilson, 389 S.C. 579, S8S, 698 S.E.2d 862, 865 (Ct. App. 2010) (citation and internal quotation marks omitted). “A mistrial should only be granted when absolutely necessary, and a defendant must show both error and prejudice in order to be entitled to a mistrial.” Id. at 585-86, 698 S.E.2d at 865. “Insubstantial errors that do not impact the result of the case do not warrant a mistrial when guilt is conclusively proven by competent evidence.” Id. at 586. 698 S.E.2d at 865 (citation and internal quotation marks omitted).
Applicant has failed to show how counsel, after conferring with Applicant, was deficient for withdrawing the motion for mistrial. Applicant has failed to show that if the motion had not been withdrawn there would have been grounds sufficient for the trial court to grant the motion. Further, Applicant has failed to show any prejudice resulting from the decision to withdraw the motion. This Court finds that Applicant has failed to meet his burden of proof in showing deficiency on the part of counsel as it relates to this allegation. Therefore, this Court dismisses this allegation with prejudice.
Allegation: Failure to Subject Prosecution's Case to Meaningful Adversarial Testing
Applicant alleges counsel was ineffective for failing to put the State's case through meaningful adversarial testing. This Court finds this allegation to be exceedingly broad and is encompassed by Applicant's other allegations. However, this Court will note that counsel did subject the State's case to meaningful adversarial testing. Counsel thoroughly cross-examined State's witnesses, moved for a directed verdict, provided an in-depth closing argument to the jury, and moved
for a mistrial during jury deliberations. This Court finds that counsel did subject the State's case to meaningful adversarial testing and Applicant has failed to show otherwise.
Therefore, this Court finds that Applicant has failed to meet his burden in showing counsel's deficiency and the allegation is dismissed with prejudice.
Allegation: Failure to Adequately Investigate the Case and Offer Alibi Witness Testimony
Applicant alleges counsel was deficient for failing to adequately investigate the case and for failing to present alibi witnesses at trial. Applicant testified that he felt counsel was ineffective for failing to investigate and call alibi witnesses at trial including: Janah Hurell, Tremayne Hurell, and Julia Piper-Simons. All three of these potential alibi witnesses were present and testified during the evidentiary hearing.
Applicant testified that he wanted counsel to investigate the aforementioned alibi witnesses and call them at trial to testify that Applicant was sleeping at his mother's home when the crime occurred. Applicant testified that he told counsel about the existence of Julia Simons and that counsel did not investigate her as a potential witness. Applicant testified that he told counsel to investigate his mother and his brother as potential alibi witnesses and that he wanted them to be called on his behalf at trial. Applicant testified that he was aware that counsel did in fact investigate his mother and his brother as potential witnesses. Applicant testified that counsel discussed calling them at trial but that counsel felt that a jury would not believe them because they were his close family. Applicant testified that he did not understand why a jury would not believe them and that he still wanted them to be called at trial.
Applicant's mother, Janah Hurell, testified at the evidentiary hearing. She testified that counsel met with her to discuss her potential testimony and ultimately told her that the jury would not believe her because she was Applicant's mother. She testified at the evidentiary hearing that she was home the night of the incident. On direct examination, she testified that Tremayne went to sleep around 9 or 9:30 that night, but changed her testimony on cross-examination to being either 10 or 11pm. She testified that Applicant would typically wait for his brother to go to sleep before he would go get in bed. She testified that her daughter called around12:30 or 1 and told her that a robbery had occurred at the gas station near her apartment. She testified that Applicant and his brother were both asleep when her daughter called.
Applicant's brother, Tremayne Hurell, testified at the evidentiary hearing. Tremayne testified both that he did not speak with counsel until after the trial and that he had spoken with him before the trial. Tremayne testified that he spoke with counsel about what happened with Applicant and that Applicant was in bed with him when the incident occurred. Tremayne testified that he told counsel prior to trial that he wanted to testify, but counsel told him that it was the State's burden and that he did not think the jury would believe him because he was Applicant's brother. Tremayne testified that he and Applicant were sleeping in the same bed because Applicant was visiting from Atlanta. Tremayne testified that he went to sleep around 10 pm the night of the incident Tremayne testified that he was a light sleeper and that he believes he would have woken up had Applicant gotten out of bed. Tremayne testified that his mother woke he and Applicant up when his sister called. Tremayne testified that he and Applicant both went back to sleep after their mother woke them up. Tremayne testified on cross-examination that at trial he would have testified that he was asleep when Applicant got in the bed with him, but that he would have noticed if another full grown man got out of the bed.
Applicant's sister, Tashima Hurell, testified at the evidentiary hearing. Tashima testified that she was home the night of the incident and woke up to a police K-9 unit at her door. Tashima testified that the officers told her the K-9 led them from the incident location at the gas station to her apartment. Tashima testified that the police also told her that a witness had reported seeing the suspect jump onto her balcony and go into her apartment through the balcony door. Tashima testified that the balcony door was always locked, that the door locked from the inside, and that Applicant did not have a key to that door. Tashima testified that she has a Yorkie, breed of dog, that barks constantly and loudly. Tashima testified that the dog barks at people it knows, she did not bear the dog bark that night, and that the dog would have barked if someone entered the apartment that night. Tashima testified that counsel did not interview her about the case, but that she was called at trial as a witness by the State. Tashima testified that counsel did not ask her any of the questions asked by PCR counsel during the evidentiary hearing. (ALL OF THIS TESTIMONY WAS ELICITED ON DIRECT AT TRIAL).
Applicant's girlfriend at the time, Julia Piper-Simons, testified at the evidentiary hearing. Julia testified on direct examination that she was with Applicant that day and dropped him off at his mother's house around 9 or 10pm that night. Julia testified that she dropped Applicant off at his mother's house a number of times, he often stayed there when he was in town visiting. Julia testified that counsel did not interview her prior to trial to discuss the case.
Trial counsel testified at the evidentiary hearing that he recalled discussing the possibility of calling his brother and mother as potential alibi witnesses, but did
not recall Applicant mentioning that he wanted bis sister or Julia Simons to testify as alibi witnesses. Counsel testified that he interviewed Applicant's mother and brother, but that he did not believe that their story or testimony would be compelling to a jury. Counsel testified that he does not remember Applicant being adamant about calling the potential alibi witnesses at trial or it being a big issue that the decision had been made not to call them. Counsel also testified that he wanted to have the final argument to the jury in this case and felt that it was important. Counsel testified that he did not speak with Applicant's sister or Julia Simmons prior to trial.
Encompassed in counsel's duly to investigate is the duty to investigate alibi witnesses identified by a defendant. Walker v. State, 407 S.C. 400, 405, 756 S.E.2d 144, 147 (2014) (citing Grooms v. Solem, 923 F.3d 88, 90 (8th Cir. 1991)). “Failure to make some effort to contact them to ascertain whether their testimony would aid the defense is unreasonable.” Id. However, when the testimony presented at the evidentiary hearing from purported alibi witnesses do not establish an alibi defense, no prejudice can result from the alleged deficiency. See Glover v. State, 318 S.C. 496, 458 S.E.2d 538 (1995) (holding trial counsel's failure to contact alleged alibi witnesses did not result in prejudice when the testimony these alibi witnesses presented did not establish an alibi defense). Moreover, questions concerning the weight and believability of alibi witnesses is Walker, 407 S.C. at 407, 756 solely within the province of the post-conviction relief court. S.E.2d at 147.
Through an alibi an accused attempts “‘to show that because he was not at the scene of the crime at the time of its commission, having been at another place at the time, he could not have committed the crime.'” State v. Robbins, 275 S.C. 373, 375, 271 S.E.2d 319, 320 (1980) (quoting 21 Am. Jur. 2d Criminal law § 136)). To do so, the accused must show “‘he was at a place so distant that his participation in the crime was impossible.'” Id. Furthermore, the alibi must account for the entire time during which these crimes were committed. Id. “Since an alibi derives its potency as a defense from the fact that it involves the physical impossibility of the accused's guilt, a purported alibi which leaves it possible for the accused to be the guilty person is no alibi at all.” Glover, 318 S.C. at 498, 458 S.E.2d 540 (citing Robbins, 275 S.C. 373, 271 S.E.2d 319).
Here, Applicant has failed to show deficiency by counsel for failing to call two potential alibi witnesses at trial and for failing to investigate two other potential alibi witnesses. Applicant has also failed to show any resulting prejudice from the alleged deficiency of counsel. Applicant alleges trial counsel should have called his mother and his brother at trial to testify to the fact that he was home asleep at the time of the incident. Counsel testified that he interviewed both potential witnesses and decided that the jury would likely not believe their testimony or find it
compelling. Both counsel and Applicant testified that they discussed this decision and counsel testified that he recalled Applicant agreeing with the decision at the time. This Court agrees that the testimony of Applicant's mother and brother at the evidentiary would not have made for a compelling alibi defense for Applicant. Although their testimony was consistent, this Court agrees that it is perfectly reasonable for counsel to weigh how the jury will respond to an alibi presented by Applicant's close family with the potential benefits of having the final closing argument to the jury. The testimony of Applicant's brother Tremayne was also not an alibi at all. Tremayne's testimony at the evidentiary hearing was that he was asleep when his brother returned home and was only made aware of his presence in the bed when their mother woke them up to tell them about the incident. Tremayne testified that he believes he would have woken up if Applicant got out of the bed that night, however, he did not testify with certainty. Tremayne's testimony in no way accounts definitively for Applicant's whereabouts until the point where his mother comes in to wake them up. Applicant's mother's testimony could potentially provide an alibi, however, counsel made a reasonable strategic not to call her as a witness for the reasons enumerated previously.
In regards to the first potential alibi witness counsel failed to investigate, Julia Piper-Simmons, this Court must examine the reasonableness of counsel failing to investigate this witnesses, whether her testimony provides an alibi at all, and whether or not Applicant has demonstrated prejudice from any alleged deficiency. There is discrepancy in the testimony as to whether or not Applicant asked counsel to investigate Julia Simmons as a potential alibi witness. Applicant testified that he asked counsel to investigate, counsel testified that he only recalled Applicant requesting that he interview his mother and his brother. Regardless, this Court will examine her testimony accordingly. Julia's testimony at the evidentiary hearing was that she dropped Applicant off at his mother's house between 9 and 10 pm the night of the incident and did not see him the rest of the evening. This testimony suffers from the same issue as Applicant's brother, it in no way accounts for Applicant's whereabouts during the time the incident occurred. All this testimony would have presented to the jury was that Applicant was dropped off at his mother's house around that time. This Court must consider this testimony as what the witness would have presented at trial and the testimony elicited would not have amounted to a possible alibi for Applicant. In evaluating this testimony, this Court finds that Applicant has failed to prove he was prejudiced by counsel not investigating and calling this witness at trial. This Court dismisses this allegation under the prejudice prong of Strickland.
In evaluating the failure to investigate the second potential alibi witness, Tashima Hurell, this Court will use the same standards as set forth above. There is no discrepancy in the testimony as it relates to this witness, both counsel and
Applicant testified that counsel was not asked to investigate Tashima as a potential alibi witness. This Court notes that counsel was in fact deficient for failing to interview Applicant's sister who was interviewed by law enforcement and would have been known to counsel in preparation for trial. However, this Court must evaluate whether her testimony provides an alibi for Applicant and whether or not Applicant was prejudiced by counsel not calling her as an alibi witness at trial. Tashima's testimony at the evidentiary hearing was that Applicant was not at her apartment that night, if someone had been in her apartment her dog would've barked, her balcony door locked from the inside, and Applicant did not have a key to the apartment. Tashima's testimony in no way accounts for Applicant's whereabouts during the incident. The testimony does not affirmatively place Applicant anywhere during the time of the incident, but simply works as a counter to the State's theory of what happened after the incident occurred. Tashima's testimony does not provide an alibi defense for Applicant when it does not at all account for his whereabouts during the time of the incident and leaves open the possibility that Applicant could have been at the incident location at the time of the incident. Further, Applicant could not possibly be prejudiced by counsel's failure to call Tashima at trial to elicit this testimony because the same testimony was elicited by the State on direct examination at trial. During the State's direct examination at trial Tashima testified to the following: 1. Nobody had come in the apartment that night and she did not open the door for anyone, 2. Applicant was staying at their mother's house while he was there visiting, 3. Applicant did not have a key to her apartment App. 213-216. The testimony elicited during the evidentiary hearing would have been duplicative to the testimony the jury heard during the State's case, eliminating the need for counsel to lose last argument by calling her as a witness and removing any potential prejudice alleged by Applicant. Applicant cannot show he was prejudiced by counsel failing to call Tashima as an alibi witness where the jury heard all of her relevant testimony during the State's case. Ultimately, Applicant got the benefit of the jury hearing the testimony he wanted counsel to elicit, but without the consequence of losing the last argument to the jury. Considering the relevant testimony at the evidentiary hearing was the same as that at trial, this Court cannot find it to be reasonable that the result of the trial would have been different had Tashima testified on behalf of Applicant. Therefore, this Court dismisses this allegation with prejudice.
CONCLUSION
Based on all the forgoing, this Court finds and concludes Applicant has not established any constitutional violations or deprivations before or during his trial and sentencing proceeding. Counsel was not deficient, nor was Applicant prejudiced by Counsel's representation. Therefore, his PCR application must be denied and dismissed with prejudice.App 606-17 (Errors in Original). Petitioner filed a pro se Rule 59(e) motion to alter or amend the PCR courts order that was denied by the court on June 30, 2020. App. 619-22. Petitioner appealed the denial of his PCR application. ECF No. 24-4. Appellate Defender Kathrine H. Hudgins, Esquire, South Carolina Commission of Indigent Defense, Division of Appellate Defense, represented Petitioner on appeal. ECF No. 24-5. Attorney Hudgins filed a Petition for Writ of Certiorari in the South Carolina Supreme Court on March 31, 2021, which presented the following issue:
1. Did the PCR judge err in refusing to find trial counsel ineffective for waiving a mistrial motion when Petitioner's sister inadvertently testified before the jury that Petitioner had served time in prison?
2. Did the PCR judge err in refusing to find trial counsel ineffective for failing to call Petitioner's mother, Janah Hurell, and brother, Tramaine Hurell, as alibi witnesses?Id. at 3. On June 30, 2021, the South Carolina Supreme Court transferred the petition to the Court of Appeals. ECF No. 24-6. The Court of Appeals denied the Petition for Writ of Certiorari on January 31, 2023. ECF No. 24-7. The Remittitur was issued on February 21, 2023. ECF No. 24-8. This Petition followed on July 24, 2023. ECF No. 1.
III. Discussion
A. Federal Habeas Issues
Petitioner raises the following issues in his Federal Petition for a Writ of Habeas Corpus, quoted verbatim:
Ground One:Police perjury and misconduct.
Supporting Facts: Police detective Michael Weaver swore under penalty of perjury that Petitioner was positively identified by audio/video surveillance and a phone call. Detective Weaver signed warrants stating this on July 22, 2014. On May 8, 2014, an FBI analyst sent a report of examination to the Summerville police department, and South Carolina Law Enforcement Division (SLED) stating no voice comparisons were conducted because the surveillance video was of insufficient quality for comparison. Detective Weaver had this information before signing the warrants. Detective Weaver also swore that articles of clothing worn during the crime were also identified. Nothing from the crime was ever recovered or tied to Petitioner as can be read and seen from the trial transcript.
Ground Two:Ineffective assistance of counsel.
Supporting Facts: Trial counsel failed to investigate the case, Petitioner's PCR lawyer hired a private investigator who ran a DMV check of the whole apartment building Petitioner's sister lived in, and found a white Mustang registered to an apartment right across from her. The witness told police he had seen a white Mustang and two black males lived at the apartment where the Mustang was registered. Had Petitioner's trial counsel investigated he would've easily found the same information. Trial counsel also failed to call Petitioner's alibi witnesses to testify. He advised Petitioner to waive my right to a mistrial. This prejudiced Petitioner from a fair trial where he could have been found not guilty.ECF No. 1 at 5-7.
B. Standard 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 a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “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 “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly 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. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 323 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
C. Habeas Corpus Standard of Review 1. Generally
Because 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, 336 (1997); Breard v. Pruett, 134 F.3d 615, 618 (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 at the state court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362 (2000). “[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.” Id. at 411.
a. Deference to State Court Decisions
Courts afford deference to state courts' resolutions of the habeas claims of state prisoners. See Bell v. Cone, 543 U.S. 447, 455 (2005). The Supreme Court has provided further guidance regarding the deference due to state-court decisions. Harrington v. Richter, 562 U.S. 86 (2011); Cullen v. Pinholster, 563 U.S. 170. To obtain habeas relief from a federal court, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. “[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102. The Court further stated: “If this standard is difficult to meet, that is because it was meant to be.” Id.; see Richardson v. Branker, 668 F.3d 128, 137-44 (4th Cir. 2012) (quoting Harrington extensively and reversing district court's grant of writ based on his ineffective assistance of counsel claims).
In interpreting § 2254(d)(1) and discussing the federal courts' role in reviewing legal determinations made by state courts, the United States Supreme Court held as follows:
[A] federal court may grant a writ of habeas corpus if the relevant state-court decision was either (1) “contrary to . . . [clearly] established Federal law as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.Williams v. Taylor, 529 U.S. 362, 404-05 (2000) (quoting from § 2254(d)(1)). “Clearly established Federal law in § 2254(d)(1) refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams, 529 U.S. at 412). In considering whether a state-court decision is “contrary to” clearly established federal law, the federal court may not grant relief unless the state court arrived at a conclusion opposite to that reached by the Supreme Court on a legal question, the state court decided the case differently than the Court has on facts that are materially indistinguishable, or if the state court “identifie[d] the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applie[d] that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 405-13. The “unreasonable application” portion of § 2254(d)(1) “requires the state court decision to be more than incorrect or erroneous[,]” it “must be objectively unreasonable,” which is a higher threshold. Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citation omitted).
Section 2254(e)(1) requires the federal court give a presumption of correctness to state-court factual determinations and provides that a petitioner can only rebut such a presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Accordingly, a habeas petitioner is entitled to relief under § 2254(d)(2), only if he can prove, by clear and convincing evidence, that the state court unreasonably determined the facts in light of the evidence presented in state court.
b. Ineffective Assistance of Counsel
The Sixth Amendment provides a criminal defendant the right to effective assistance of counsel in a criminal trial and first appeal of right. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court announced a two-part test for adjudicating ineffective assistance of counsel claims. First, a petitioner must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 687. Second, the petitioner must show that this deficiency prejudiced the defense. Id. at 694. The United States Supreme Court's 2011 decisions cited previously elaborate on the interplay between Strickland and § 2254, noting the standards are “both highly deferential,” and “when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal quotation marks omitted); Pinholster, 563 U.S. at 188-190. When a petitioner raises in a § 2254 habeas petition an ineffective-assistance-of-counsel claim that was denied on the merits by a state court, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable[,]” not “whether defense counsel's performance fell below Strickland's standard.” Harrington, 562 U.S. at 101. “For purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Id. (citing Williams, 529 U.S. at 410) (emphasis in original). “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.
2. 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. 28 U.S.C. § 2254(a)-(b). The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require that a habeas petitioner 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.
a. 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.
The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997). 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 be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767 (S.C. 1976). If the PCR court fails to address a claim as is required by section 17-27-80 of the South Carolina Code, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will result in the application of a procedural bar by the South Carolina Supreme Court. Marlar v. State, 653 S.E.2d 266, 267 (S.C. 2007). Strict time deadlines govern direct appeals and the filing of a PCR in the South Carolina courts. A PCR 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.
Furthermore, in filing a petition for habeas relief in the federal court, a petitioner may present only those issues that were presented to the South Carolina Supreme Court or the South Carolina Court of Appeals. See State v. McKennedy, 559 S.E.2d 850, 853 (S.C. 2002) (holding “that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error.”) (quoting In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief, 471 S.E.2d 454, 454 (S.C. 1990)).
b. Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue 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.
The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the United States Supreme Court explains: [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).
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. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 23, 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).
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. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met, and the rules of procedural bar apply. See Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996).
3. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the South Carolina Supreme Court in limited circumstances in which 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 that a “fundamental miscarriage of justice” has occurred. Murray, 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 that hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Id. 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 in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
IV. Analysis
A. Procedurally-Barred Grounds
Respondent argues Petitioner's claims in Ground One are procedurally defaulted because Petitioner failed to raise this ground in his PCR appeal. ECF No. 24 at 17-19. In Ground One, Petitioner alleges police perjury and misconduct claims concerning Detective Weaver's statements in Petitioner's arrest warrant that Petitioner was positively identified by audio/video surveillance, a phone call, and clothing. ECF No. 1 at 5. Because the claims in Ground One were not ruled upon by the South Carolina appellate courts, they are not preserved for review. See, e.g., Coleman v. Thompson, 501 U.S. 722 (1991) (holding issue not properly raised to state's highest court, and procedurally impossible to raise there now, is procedurally barred from review in federal habeas). Consequently, federal habeas review of this claim is barred absent a showing of cause and actual prejudice, or actual innocence. Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Matthews v. Evatt, supra.
1. Cause and Prejudice
Petitioner has not shown sufficient cause and prejudice to excuse the default of his Ground One claim. In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Petitioner has failed to meet this burden. Thus, his claim is procedurally barred from consideration by this court and should be dismissed. See 28 U.S.C. § 2254; Rodriguez v. Young, 906 F.2d 1153, 1159 (7th Cir. 1990) (“Neither cause without prejudice nor prejudice without cause gets a defaulted claim into Federal Court.”); Mazzell v. Evatt, 88 F.3d 263, 269 (4th Cir. 1996) (holding that to show prejudice, a petitioner must show that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different); Rodriguez, 906 F.2d at 1159 (holding a fundamental miscarriage of justice occurs only in extraordinary cases, “where a constitutional violation has probably resulted in the conviction of one who is actually innocent”) (citing Murray, 477 U.S. 478).
The existence of cause must ordinarily turn on whether the prisoner can show some objective factor external to the defense impeded counsel's or his efforts to comply with the state's procedural rule. Murray, 477 U.S. at 488. Petitioner fails to articulate cause for procedurally defaulting on this claim. Petitioner had a trial, a direct appeal, a PCR hearing, and a PCR appeal in which to raise these issues. However, he failed to preserve these issues for habeas review. Accordingly, Petitioner cannot establish cause and prejudice.
In the alternative, Petitioner must show a miscarriage of justice. To demonstrate a miscarriage of justice, Petitioner must show he is actually innocent. Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 622 (1998). Petitioner cannot establish that the errors he complains of probably resulted in the conviction of an innocent person. Schlup v. Delo, 513 U.S. 298, 327 (1995). To pass through the actual-innocence gateway, a petitioner's case must be “truly extraordinary.” Id.
The court's review of the record does not support a showing of actual innocence. Although there was no direct evidence linking Petitioner to the charged crimes, the following circumstantial evidence was introduced at trial concerning the individual who robbed the store and assaulted the clerk: (a) the perpetrator went from the store to Petitioner's sister's apartment building, (b) an individual carrying a baseball bat was seen entering Petitioner's sister's apartment, (c) a bloody dollar bill that matched the victim's DNA was found on Petitioner's sister's porch, (d) Petitioner's brother owned a sweatshirt similar to the one worn by the perpetrator, (e) the perpetrator was seen driving in a car that was similar to Petitioner's mother's car, (f) Petitioner's cell phone was used in the area near the time of the incident and was used to call the Greyhound Bus Lines numerous times later that morning, and (g) a Facebook photograph indicating Petitioner owned shoes similar to those seen being worn by the perpetrator in the video. App. 455. In light of the foregoing, the undersigned finds Petitioner has failed to meet his burden of demonstrating actual innocence. Therefore, a procedural bar applies to Petitioner's Ground One claims.
B. Merits
In Ground Two, Petitioner argues his trial counsel was ineffective when he failed to investigate his case and discover that a white mustang was registered to the apartment across from Petitioner's sister and two black males lived at the apartment where the mustang was registered. ECF No. 1 at 7. Petitioner also alleges his trial counsel was ineffective for failing to call Petitioner's alibi witnesses to testify and advising Petitioner to waive his right to a mistrial. Id.
The PCR court found Petitioner's ineffective assistance of counsel claims to be without merit. App. 609. As to Petitioner's mistrial claim, the court noted that after a discussion with his counsel, Petitioner ultimately decided to withdraw his motion for a mistrial. Id. The PCR court found Petitioner failed to show his counsel was deficient for withdrawing the mistrial motion, or that Petitioner was prejudiced from the decision to withdraw the motion. Id. Addressing Petitioner's failure-to-investigate claim and alibi claims, the PCR court found Petitioner failed to show his counsel was deficient for failing to call two alibi witnesses and investigate two alibi witnesses, and Petitioner failed to establish resulting prejudice. App. 615. The PCR court noted trial counsel indicated he interviewed Petitioner's brother and mother and determined the jury would not find their testimony that Petitioner was at home sleeping believable or compelling enough to outweigh the potential benefits from retaining the final closing argument. App. 615. As to the alibi testimony from Petitioner's ex-girlfriend, the PCR court found her testimony did not account for Petitioner's whereabouts during the time the crime was committed and therefore Petitioner failed to show he was prejudiced by counsel's failure to investigate or call this witness to testify at trial. App. 615-16. Finally the PCR court found Petitioner was not prejudiced by his counsel's failure to interview his sister or call her as a witness explaining Petitioner's sister's testimony did not provide him an alibi, however the testimony provided by his sister at the PCR hearing was the same testimony she gave during the State's case at Petitioner's trial. App. 616- 17.
Respondent moves for summary judgment contending the PCR court's findings denying Petitioner's ineffective assistance of counsel claims are not controlled by any error of law and are supported by the probative evidence contained in the record. ECF No. 24 at 20-26.
In his opposition to summary judgment, Petitioner does not directly challenge the PCR court's order. Instead he argues the merits of his failure to investigate alibi witnesses claim contending his trial counsel was ineffective when he failed to present his mother and brother as alibi witnesses. ECF No. 32 at 11. Petitioner contends trial counsel stated he did not call his mother and brother to testify because he did not find their testimony compelling and he wanted to save the final argument. Id. at 13-16. Petitioner argues this was not sound strategy given trial counsel's PCR testimony that he did not know if it made any difference to have final closing argument. Id. at 16. Petitioner does not offer any argument concerning his ineffective assistance of counsel claim related to trial counsel's waiver of Petitioner's right to a mistrial.
Petitioner also argues that his trial counsel was ineffective when he failed to hire an independent investigator and instead relied on law enforcement's investigation to produce any evidence of white Ford mustangs registered to any surrounding apartments. ECF No. 32 at 11. During the PCR hearing, Petitioner presented testimony from private investigator Jather Stevens that he discovered there was a white mustang registered to the apartment directly across the hall from Petitioner's sister and that two black males, who were the same age as Petitioner, lived in the same apartment. Id. at 12. Petitioner argues that if trial counsel had conducted a reasonable investigation this information could have been found and introduced to the jury. Id. Although this ground and testimony was presented at the PCR hearing, it was not addressed in the PCR court's order. Petitioner filed a pro se Rule 59 motion to alter and amend the judgment to address all the issues that were raised in the PCR motion, but his motion was denied.
The undersigned finds Petitioner cannot satisfy the Strickland test. The court has reviewed the record and cannot find the PCR court's application of the Strickland standard was unreasonable. The PCR court found trial counsel investigated the potential alibi witnesses' testimony from Petitioner's mother and brother and found a jury would not find the testimony compelling or believable given their family relationship. The PCR court noted Petitioner's brother's testimony was not an alibi as he went to sleep before Petitioner but found Petitioner's mother's testimony would have offered an alibi. The PCR court observed trial counsel weighed the benefit of offering this testimony against being able to have the final closing argument and determined that it would be better for Petitioner to have the final closing argument. The PCR court noted trial counsel testified he discussed this reasoning with Petitioner and Petitioner agreed. In light of the evidence presented at trial and the PCR hearing, the undersigned finds support in the records for the PCR court's finding that trial counsel was not ineffective for failing to call Petitioner's brother and mother as alibi witnesses. The undersigned also finds the PCR court did not err in finding Petitioner was not prejudiced by any alleged deficiencies of his trial counsel given his brother's testimony, and the noted benefit from having the final closing argument to the jury. Petitioner has failed to overcome the doubly-deferential standard of review accorded the state court's determination of this issue of ineffective assistance of counsel under Harrington. Petitioner has not shown the state court's analysis of this issue misapplied clearly established federal law or, even if there was an error, it was unreasonable. See Williams, 529 U.S. at 410. Based on the foregoing, Petitioner is not entitled to federal habeas relief on this claim, and the undersigned recommends Ground Two be dismissed.
V. Conclusion and Recommendation
Based upon the foregoing, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 25, be GRANTED and the Petition be DENIED.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
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).