Opinion
C. A. 5:22-402-MGL-KDW
12-28-2022
Tre'Vaughn Jackson, Petitioner, v. Brian Kendall, Warden Lieber Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
KAYMANI D. WEST, UNITED STATES MAGISTRATE JUDGE
Tre'Vaughn Jackson (“Petitioner”) is a state prisoner who filed this counseled 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. 14, 15. Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment on June 9, 2022, ECF No. 20, and Respondent filed a Reply on June 16, 2022. ECF No. 21.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment be granted, and this Petition be denied.
I. Background
Petitioner is currently incarcerated in Lieber Correctional Institution of the South Carolina Department of Corrections. He was indicted at the November 2013 term of the Sumter County Grand Jury on two counts of attempted murder, one count of possession of a firearm during the commission of a violent crime, one count of unlawfully carrying a pistol, and one count of discharging a firearm in a dwelling. App. 505-506. Petitioner proceeded to a jury trial on August25-28, 2014, before the Honorable W. Jeffrey Young, Circuit Court Judge, on attempted murder, possession of a weapon, and discharging a firearm charges. App. 1 et. seq. Petitioner was represented by Tiffany Butler, Esquire and Assistant Solicitor John P. Meadors represented the State. App. 1. The jury found Petitioner guilty of the attempted murder and weapon charges. App. 390. Judge Young sentenced Petitioner to 60 years imprisonment. App. 404-406.
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 Nos. 14-1 to 14-7 in this habeas matter.
Although the cover page of the transcript indicates the trial date was in April, internal dates establish the trial was in August.
Petitioner appealed his convictions and sentences to the South Carolina Court of Appeals (“Court of Appeals”). App. 408. On appeal, Petitioner was represented by Chief Appellate Defender Robert M. Dudek, Esq., of the South Carolina Office of Appellate Defense, who filed an Anders Brief of Appellant on September 18, 2015, raising the following issue:
Anders v. California, 386 U.S. 738, 744 (1967), requires that counsel who seeks to withdraw after finding the “case to be wholly frivolous” following a “conscientious examination” must submit a brief referencing anything in the record that arguably could support an appeal, furnish a copy of that brief to the defendant, and after providing the defendant with an opportunity to respond, the reviewing court must conduct a full examination of the proceedings to determine if further review is merited.
Whether the court erred by allowing hearsay testimony from law enforcement that other alleged eyewitnesses named appellant as the shooter since this hearsay testimony was highly prejudicial, and denied appellant his right to a fair trial on the present charges?App. 411. Attorney Dudek certified the appeal was without legal merit and asked to be relieved as counsel. App. 419. On March 2, 2016, the Court of Appeals filed an unpublished decision dismissing Petitioner's appeal. App. 422-23.
II. Procedural History
Petitioner filed an Application for Post-Conviction Relief (“PCR”) on April 11, 2016. App. 424-57. Petitioner asserted he was being held in custody unlawfully because of ineffective assistance of counsel and denial of due process claims. App. 425-26, 429-57. The State filed a return on or about September 30, 2016. App. 459-63. A PCR motion hearing convened on November 8, 2016, before the Honorable Brian M. Gibbons, Circuit Court Judge. App. 464-91. Petitioner was present and represented by Attorney Timothy L. Griffith, and Assistant Attorney General Julie A. Coleman appeared on behalf of the State. See id. Petitioner's trial counsel Tiffany Butler testified at the hearing; Petitioner did not testify. Id. The PCR court denied and dismissed Petitioner's PCR Application in an order filed on May 4, 2017, making the following findings of fact and conclusions of law:
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
This Court has had the opportunity to review the record in its entirety and has heard the testimony at the post-conviction relief hearing. This Court has further had the opportunity to observe the witnesses presented at the hearing, closely pass upon their credibility and weigh their testimony accordingly. 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).
As a matter of general impression, this Court finds Trial Counsel's testimony to be credible and persuasive. This credibility finding has been applied to the Court's findings and conclusions set forth below.
INEFFECTIVE ASSISTANCE OF COUNSEL
Applicant has asserted several allegations of ineffective assistance of counsel. This Court finds these claims to be meritless and they should be denied and dismissed with prejudice.
Failure to object to accomplice liability instructions and “hand of one hand of all” charge
Applicant alleges that Trial Counsel was ineffective for failing to object to accomplice liability instructions and a “hand of one, hand of all” charge. This allegation is meritless. There was evidence presented that another person was involved in the shooting, although law enforcement never identified who it was. Trial Counsel testified that there was no reason to object to these instructions, and this Court agrees. Applicant has failed to meet his burden of proving either prong of the Strickland test, and this allegation is denied and dismissed with prejudice.
Failure to request the lesser-included offense
Applicant alleges that Trial Counsel was ineffective for failing to request an instruction on the lesser included offense of Assault and Battery of a High and Aggravated Nature. This allegation is meritless.
Although Trial Counsel could not recall her reasoning for choosing not to request the lesser included offense, she expressed that it was possible that she did not want Applicant to be convicted of a lesser included offense when there was a chance he would be found not guilty of attempted murder. In this case, he would not have any convictions. It is reasonable to assume that this is a valid strategy that Trial Counsel could have been choosing. Where counsel articulates a valid strategic reason for his action or inaction, counsel's performance should not be found ineffective. Roseboro v. State, 317 S.C. 292, 454 S.E.2d 312 (1996); Underwood v. State, 309 S.C. 560, 425 S.E.2d 20 (1992); Stokes v. State, 308 S.C. 546, 419 S.E.2d 778 (1992). Courts must be wary of second guessing counsel's trial tactics; and where counsel articulates a valid reason for employing such strategy, such conduct is not ineffective assistance of counsel. Whitehead v. State, 308 S.C. 119, 417 S.E.2d 529 (1992). Recognize, however, that a strategic or tactical decision does not have to be articulated by counsel on the record; counsel doesn't to [sic] have to personally identify his or her thinking. Federal courts have held that it is enough that the record show a basis for strategy, not that counsel announce that strategy on the record. Wood v. Allen, 558 U.S. 290,___, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010).
This Court finds that Trial Counsel was not ineffective for choosing not to request an instruction for the lesser-included offense. Applicant has failed to meet his burden of proof, and this allegation is denied and dismissed with prejudice.
Failure to object to hypothetical examples of express malice in jury instructions
Applicant alleges that Trial Counsel was ineffective for failing to object to the trial judge's use of hypothetical examples when explaining express malice to
the jury. This allegation is meritless. This Court finds there was no reason to object to these instructions, as they were part of the standard jury charges used to compare express and implied malice. Furthermore, any objection that might have been made to this would not have changed the outcome of the trial. Since Applicant has failed to prove either prong of the Strickland test, this allegation is denied and dismissed with prejudice.
Failure to object to consecutive sentences
Applicant alleges that Trial Counsel was ineffective for failing to object to the trial court's consecutive sentences. This allegation is meritless.
South Carolina law states:
In determining the number of offenses for the purpose of imposition of sentence, the court shall treat as one offense any number of offenses which have been committed at times so closely connected in point of time that they may be considered as one offense, notwithstanding under the law they constitute separate and distinct offenses.
S.C. Code Ann. § 17-25-50. Applicant was sentenced to two consecutive thirty-year sentences based on his two charges of attempted murder. Here, there were two victims shot. These people were the victims of two separate and distinct crimes - -both of them were shot and injured. This was the basis for the trial court's sentence, and this Court agrees with its reasoning. This Court finds that the trial court properly sentenced Applicant within its discretion and within the statutory limits of the sentence. Trial Counsel credibly testified that she asked for concurrent sentences in her mitigation at sentencing. This Court finds that Trial Counsel was not ineffective for failing to object to the sentence.
Furthermore, Applicant has not shown that the implication of this sentence changed the outcome of the trial. Any objection to the sentence would only have potentially altered the sentence, not the jury's verdict. Regardless, Applicant has not proven that any objection would have been successful.
Because Applicant has failed to prove either prong of the Strickland test, and this allegation is denied and dismissed with prejudice.
Failure to object to general intent instruction
Applicant alleges that Trial Counsel was ineffective for failing to object to the trial court's jury instruction that general intent, not specific intent, was the proper standard to meet the elements of attempted murder. This allegation is meritless.
Under current South Carolina case law, attempted murder is defined by the courts as a specific intent crime. The Court of Appeals settled this question in 2015 in State v. King: “We find the Legislature intended to require the State to prove specific intent to commit murder as an element of attempted murder, and therefore the trial court erred by charging the jury that attempted murder is a general intent crime.” State v. King, 412 S.C. 403, 411, 772 S.E.2d 189, 193 (Ct. App. 2015), reh'g denied (June 5, 2015). The King decision was appealed to the South Carolina Supreme Court and is currently pending, While the current law states that attempted murder is a specific intent crime, this could be reversed on appeal, meaning that a general intent standard applies.
Regardless of the current state of the law on this issue, the Court of Appeals opinion in King was not decided until April of 2015. Applicant's trial was held in August of 2014, before this opinion existed. To claim that Trial Counsel was ineffective for failing to object, Applicant must prove that Trial Counsel had knowledge or should have had knowledge of the case law at the time. At the time of Applicant's trial, the general intent instruction was proper. Trial Counsel cannot be expected to be clairvoyant in the law to object to issues that have not yet arisen before the courts. “This Court has never required an attorney to anticipate or discover changes in the law, or facts which did not exist, at the time of the trial.” Thomes v. State, 310 S.C. 306, 309-10, 426 S.E.2d 764, 765 (1993).
This Court finds that Trial Counsel was not ineffective in failing to object to a jury instruction that was proper at the time it was given under South Carolina law. Applicant has failed to prove ineffectiveness or prejudice, and therefore this allegations [sic] is denied and dismissed with prejudice.
Failure to impeach witness Lenard Johnson with prior inconsistent statement
Applicant has failed to meet his burden in proving that Trial Counsel was ineffective for failing to properly cross-examine witnesses at trial.
The purpose of cross examination at trial is “to show a prototypical form of bias on the part of the witness. and thereby to expose to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness.” State v. Gillian, 360 S.C. 433, 451, 602 S.E.2d 62, 71 (Ct. App. 2004) affd as modified, 373 S.C. 601, 646 S.E.2d 872 (2007) (citing Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)). This Court finds that Trial Counsel properly cross-examined each of the State's witnesses enough to expose their biases and create doubt as to their credibility in the minds of the jury. Trial Counsel credibly testified that her trial strategy was to show the jury that the State's witnesses were not consistent. She emphasized to the jury the high level of chaos during the shooting which made the witnesses' testimony more unreliable. Furthermore, Trial Counsel did impeach witness Lenard Johnson with his prior inconsistent statement. Trial Tr. at 322.
Furthermore, Applicant failed to present the proper cross-examination testimony from witnesses at the evidentiary hearing, and thus cannot establish prejudice because their testimony is merely speculative. “This Court has repeatedly held a PCR applicant must produce the testimony of a favorable witness or otherwise offer the testimony in accordance with the rules of evidence at the PCR hearing in order to establish prejudice from the witness' failure to testify at trial.” Bannister v. State, 333 S.C. 298, 303, 509 S.E.2d 807, 809 (1998). “The applicant's mere speculation what the witnesses' testimony would have been cannot, by itself, satisfy the applicant's burden of showing prejudice.” Glover v. State, 318 S.C. 496, 498-99, 458 S.E.2d 538, 540 (1995).
Since Applicant cannot prove either prong of the Strickland test, this allegation is denied and dismissed with prejudice.
DUE PROCESS
Applicant alleges that he was denied due process of law. However, Applicant fails to set forth with specificity the grounds upon which these constitutional violations are based. The Uniform Post-Conviction Procedure Act requires that the Applicant must “ . . . specifically set forth the grounds upon which the application is based.” S.C. Code Ann. § 17-27-50. In an application for postconviction relief, it is incumbent upon the Applicant to make at least a prima facie showing that would entitle him to relief before an evidentiary hearing will be held. Welch v. MacDougall, 246 S.C. 258, 143 S.E.2d 455 (1965); Blandshaw v. State, 245 S.C. 385, 140 S.E.2d 784 (1965). Since the Applicant has failed to make even a prima facie showing, this Court finds that this allegation should be dismissed for failing to meet the requirements of the Uniform Post-Conviction Procedures Act. Applicant has presented no credible evidence proving that he was denied due process in any manner. Accordingly, this allegation is denied and dismissed with prejudice.
ALL OTHER ALLEGATIONS
As to any and all allegations that were raised in the application at the hearing in this matter and not specifically addressed in this Order, this Court finds the Applicant failed to present any testimony, argument, or evidence at the hearing regarding such allegations. Accordingly, this Court finds the Applicant has abandoned any such allegations.
V. CONCLUSION
Based on all the foregoing, this Court finds and concludes that the Applicant has not established any constitutional violations or deprivations that would require this court to grant his application. Therefore, this application for post-conviction relief must be denied and dismissed with prejudice.p. 493-504 (Errors in Original).
Petitioner appealed the denial of his PCR application. ECF No. 14-3. Appellate Defender ra M. Caudy, Esquire, South Carolina Commission on Indigent Defense, Division of Appellate fense, represented Petitioner on appeal. ECF No. 14-4. Attorney Caudy filed a Petition for Writ Certiorari in the South Carolina Supreme Court on or about January 26, 2018. Id. The petition sented the following issue:
Whether Petitioner's Sixth and Fourteenth Amendment rights to the effective assistance of counsel were violated when trial counsel failed to request a jury instruction on the lesser included offense of assault and battery of a high and aggravated nature (ABHAN) when there was evidence from which the jury could have found Petitioner committed the lesser rather than the greater offense, where trial counsel failed to articulate any strategic reason whatsoever for failing to request such an instruction, and where Petitioner was prejudiced because if counsel had requested an instruction on the lesser offense there is a reasonable probability the jury would have found Petitioner guilty of only ABHAN?Id. at 3. The South Carolina Supreme Court transferred the petition to the Court of Appeals and Court of Appeals granted the Petition for Writ of Certiorari on May 30, 2019. ECF No. 14-5. March 31, 2021, the Court of Appeals issued an order dismissing certiorari as improvidently nted. ECF No. 14-6. The remittitur was issued on April 26, 2021. ECF No 14-7.
III. Discussion
A. Federal Habeas Issues
Petitioner raises the following issues in his Federal Petition for a Writ of Habeas Corpus, ted verbatim:
Ground One: Petitioner received ineffective assistance of trial counsel when trial counsel failed to request a jury instruction on the lesser-included offenses of assault and battery of a high and aggravated nature and assault and battery in the first degree, in violation of his Sixth and Fourteenth Amendment rights.
Ground Two: Trial counsel rendered ineffective assistance of counsel when she failed to properly impeach the state's main witness with his prior inconsistent statement made to trial counsel's investigator in violation of his Sixth and Fourteenth Amendment rights.
Ground Three: Trial counsel was ineffective for failing to object to prejudicial hearsay testimony from law enforcement that other eyewitnesses named Petitioner as the shooter since this hearsay testimony was highly prejudicial and denied Petitioner his right to a fair trial, specifically denying his constitutional right to confront witnesses against him in violation of his Sixth and Fourteenth Amendment rights.ECF No. 1 at 15-25.
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, 131 S.Ct. 1388 (2011). 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, 131 S.Ct. at 1403. 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). 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 v. 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 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 v. Carrier, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
IV. Analysis
A. Procedurally-Barred Grounds
Although Respondent did not raise the issue of procedural bar in his Motion for Summary Judgment, Petitioner conceded in his habeas Petition and his Response to Respondent's summary judgment motion that his Ground Two and Three claims are procedurally barred as these grounds were not properly raised to the PCR court or in Petitioner's PCR appeal. ECF No. 1 at 21, 24; ECF No. 20 at 5. Because Petitioner's Ground Two and Three claims were not ruled on by South Carolina appellate courts, these claims 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); Pruitt v. State, 423 S.E.2d 127 (S.C. 1992) (holding issue must be raised to and ruled on by the PCR judge in order to be preserved for review). Consequently, federal habeas review of these claims is barred absent a showing of cause and actual prejudice, or actual innocence. Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
B. Cause and Prejudice
Petitioner has not shown sufficient cause and prejudice to excuse the default of his Ground Two and Three claims. 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. 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”).
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 v. Carrier, 477 U.S. at 488. Petitioner cites to the holding in Martinez v. Ryan, 566 U.S. 1 (2012), and argues the procedural bar applied to his Ground Two and Three claims should be lifted due to the ineffectiveness of his PCR counsel. In Martinez, the Court recognized a narrow exception to the rule established in Coleman v. Thompson, 501 U.S. 722 (1991) and held that “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Martinez, 566 U.S. at 9.
In Coleman, the Court held an attorney's errors in a postconviction proceeding do not qualify as cause for a default. Coleman, 501 U.S. at 754-755.
In Ground Two, Petitioner alleges his trial counsel failed to properly impeach the State's main witness, Lanard Johnson, who identified Petitioner as one of the shooters, with his prior inconsistent statements. ECF No. 1 at 19-22. Petitioner argues his PCR counsel ineffectively presented this claim to the PCR court because she did not call the investigator to the stand to present the particulars of the prior inconsistent statements. Id. at 21. Petitioner, however, fails to offer any evidence concerning Johnson's prior inconsistent statements other than a post-trial affidavit from Johnson. See ECF No. 1-1. In his December 31, 2021 affidavit, Johnson states he did not see Petitioner on the day of the incident, however, he states he was scared after being taken into custody and he identified Petitioner as the shooter based on “what [he] heard on the streets about what happened.” Id. The PCR court addressed the substance of Petitioner's Ground Two claim on the merits. In denying this claim, the PCR court found trial counsel properly cross examined the State's witnesses and impeached Johnson with his prior inconsistent statements. The Court also found the speculative nature of Petitioner's argument failed to establish prejudice.
Although spelled as “Lenard” in the trial and PCR transcripts, this witness signed his affidavit as “Lenard” Johnson. See ECF No. 1-1 at 2.
In Ground Three, Petitioner claims his trial counsel failed to object to prejudicial hearsay testimony from law enforcement that other witnesses identified Petitioner as the shooter. Id. at 22. Petitioner argues his PCR counsel was ineffective in failing to amend his PCR application to include his Ground Three claim. Id. at 24. Although PCR counsel did not raise a claim concerning trial counsel's failure to object to hearsay testimony identifying Petitioner as the shooter, a similar claim was raised in Petitioner's appeal. In his Anders appellate brief, counsel argued the trial court erred in allowing testimony from law enforcement that other alleged eyewitnesses named Appellant as the shooter. App. 408-18. The Court of Appeals found this claim to be without merit when it denied Petitioner's appeal.
The undersigned finds Petitioner has failed to establish either of his defaulted habeas claims are substantial and meritorious. As to Ground Two, Petitioner has failed to establish trial counsel's cross examination of Johnson with his prior inconsistent statements was ineffective. Petitioner has not pointed to any statement made by Johnson before or during the trial that contradicted the trial testimony he gave. Although Petitioner argues trial counsel should have called the investigator to testify, Petitioner does not explain what the investigator would have testified to or why his testimony was essential. To the extent Petitioner relies on the December 31, 2021 affidavit from Johnson, Petitioner correctly notes that under the holding in Shinn v. Ramirez, 142 S.Ct. 1718 (U.S. 2022), this court may not consider evidence beyond the existing state-court record when evaluating an ineffective assistance of PCR counsel claim. ECF No. 2 at 5. Petitioner's Ground Three claim, Petitioner has failed to offer sufficient evidence to establish his trial counsel was ineffective for failing to object to hearsay testimony from law enforcement that other eyewitnesses identified Petitioner as the shooter. As noted supra, the South Carolina appellate court addressed whether the court erred in admitting this testimony, and found there was no error. Additionally, Petitioner fails to acknowledge that there was other testimony offered at trial that identified Petitioner as the shooter other than this hearsay testimony. Accordingly, Martinez does not excuse the default of Petitioner's Ground Two and Three claims. See Martinez, 132 S.Ct. at 1318-20
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. Therefore, a procedural bar applies to Grounds Two and Three.
V. Analysis
In Ground One, Petitioner alleges his trial counsel was ineffective when she failed to request jury instructions on the lesser included offenses of assault and battery of a high and aggravated nature and assault and battery in the first degree. ECF No. 1 at 15-18.
At the PCR hearing, trial counsel testified she did not request the jury instructions include any lesser included offenses. App. 475. Counsel testified she could not remember why she did not make a request, but stated “it may have been a situation where [she] wanted to give the jury one, one option.” Id. Counsel testified she has requested a jury be charged with a lesser included offense in other cases depending on the facts and the trial strategy. App. 475-76. Counsel stated it was possible she did not make the request in this case based on trial strategy. App. 476.
In denying Petitioner's claims, the PCR court found trial counsel was not ineffective as she articulated a valid trial strategy for not requesting lesser included offenses be included in the jury instructions. App. 498-99.
Respondent argues the PCR court did not err in finding trial counsel was not ineffective for failing to request lesser included offenses as her reason for not making the request was a reasonable strategic decision allowed under Strickland. ECF No. 14 at 13-16. Respondent also contends trial counsel's failure to request the lesser-included offense was harmless. Id.
In his opposition brief, Petitioner contends trial counsel did not articulate a reason why she did not request a lesser included offense, and the PCR court's imputing a strategic reason was unreasonable. ECF No. 21 at 1-2. Petitioner also argues counsel's failure to make the request was not harmless as Petitioner was sentenced to 60 years, and the maximum sentence for the lesser included offenses was 10 and 20 years. Id. at 2.
In reply, Respondent argues trial counsel testified at the PCR hearing that she was not sure why she did not request a lesser included offense, but it was possible she wanted to give the jury only one option. ECF No. 21 at 1. Respondent contends the only defense presented to the jury was that Petitioner was not guilty because he was not there and did not make the shot. Id. at 1-2. Respondent points out that under Strickland a trial strategy does not have to be successful, only reasonable, and the PCR court correctly determined the trial strategy was reasonable. Id. at 2.
The undersigned finds Petitioner's arguments are insufficient to satisfy the Strickland test. The undersigned finds that, based on the evidence presented at the hearing, Petitioner has failed to show by clear and convincing evidence that the PCR court reached an unreasonable factual determination. Testimony at the PCR hearing established trial counsel defended the charges against Petitioner by attacking the credibility of the witnesses who identified Petitioner as the shooter. App. 469-73. Although trial counsel did not recall why she did not request lesser included offenses be charged to the jury, she stated it may have been because she wanted to give the jury only one option for a verdict. App. 475-76. The undersigned finds the PCR court's findings that counsel was not ineffective for failing to request a jury instruction on lesser included offenses was not unreasonable. There is evidence in the record to support the PCR court's finding that trial counsel's decision was a part of her trial strategy, and her strategy was objectively reasonable given the facts of the case. Where trial counsel articulates a valid reason for employing certain trial strategy, such conduct should not be deemed ineffective assistance of counsel if it is objectively reasonable under the circumstances. Strickland v. Washington; Caprood v. State, 525 S.E.2d 514 (S.C. 2000). Courts must be wary of second-guessing counsel's trial tactics; and where counsel articulates a valid reason for employing such strategy, such conduct is not ineffective assistance of counsel if objectively reasonable under the circumstances. Strickland v. Washington; Whitehead v. State, 417 S.E.2d 529 (S.C. 1992). Furthermore, as noted by the PCR court, trial counsel was not required to announce her strategy; it was enough that the record shows a basis for strategy. App. 499 (citing Wood v. Allen, 558 U.S. 290 (2010)). Petitioner has also failed to show the PCR court unreasonably applied United States Supreme Court precedent in deciding these claims. Accordingly, Petitioner has failed to overcome the deferential standard of review accorded the state PCR court's determinations of these issues. Williams v. Taylor, 529 U.S. 362, 402-13 (2000); Bell v. Jarvis, 236 F.3d 149, 157-58 (4th Cir. 2000); 28 U.S.C. § 2254(e)(1) (finding the determination of a factual issue by the state court shall be presumed correct unless rebutted by clear and convincing evidence). The undersigned recommends Respondent be granted summary judgment on Petitioner's Ground One claim.
V. Conclusion and Recommendation
Based upon the foregoing, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 15, 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).