Opinion
C/A 8:22-cv-03583-TMC-JDA
08-01-2023
Curtis T. Johnson, Petitioner, v. Warden, Allendale Correctional Institution, Respondent.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court on Respondent's motion for summary judgment. [Doc. 23.] Petitioner is a state prisoner who seeks relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.
Petitioner filed this Petition for writ of habeas corpus on October 13, 2022. [Doc. 1.] On February 13, 2023, Respondent filed a return and memorandum to the Petition and a motion for summary judgment. [Docs. 22; 23.] On the next day, the Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion. [Doc. 24.] Petitioner's response in opposition to the motion for summary judgment was entered on the docket on April 17, 2023. [Doc. 32.] Respondent filed a reply on April 24, 2023 [Doc. 34], and Petitioner's sur reply was entered on the docket on May 15, 2023 [Doc. 35].
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). In this case, construing the filing date in the light most favorable to Petitioner, this action was filed on October 13, 2022. [Doc. 1 at 15 (Petition, signed by Petitioner on October 13, 2022).
Having carefully considered the parties' submissions and the record in this case, the Court recommends that Respondent's motion for summary judgment be granted in part and denied in part with leave to refile as to the procedurally defaulted grounds.
BACKGROUND
Petitioner is confined in the South Carolina Department of Corrections pursuant to orders of commitment of the Lexington County Clerk of Court. [Doc. 1 at 1.] In April 2007, Petitioner was indicted on one count of murder, two counts of assault and battery with intent to kill (“ABWIK”), and one count of possession of a firearm or knife during the commission of a violent crime. [App. 1116-23.2] On September 14-18, 2009, represented by Elizabeth Fullwood, Petitioner proceeded to a jury trial. [App. 1-881.] On the murder charge, the jury found Petitioner guilty of the lesser-included offense of voluntary manslaughter; on the ABWIK charges, the jury found Petitioner guilty of the lesser-included offense of assault and battery of a high and aggravated nature; and on the possession of a firearm or knife during the commission of a violent crime charge, the jury found Petitioner guilty as charged. [App. 876.] Petitioner received concurrent sentences of 30 years' imprisonment on the voluntary manslaughter conviction and ten years' imprisonment on each assault and battery of a high and aggravated nature conviction and a consecutive sentence of five years' imprisonment on the weapons conviction. [App. 1124-27.]
The Appendix can be found at Docket Entry Numbers 22-1 through 22-7.
Direct Appeal
Petitioner appealed. Robert M. Pachak of the South Carolina Commission on Indigent Defense filed an Anders brief on Petitioner's behalf, raising one issue: “Whether the trial court erred in refusing to grant a directed verdict to the charges against [Petitioner] because his actions were in self-defense and in defense of another?” [2nd Supp. App. 22-31. At the same time he filed the Anders brief, Pachak submitted a petition to be relieved as counsel. [2nd Supp. App. 32.] Petitioner then filed a pro se brief raising the following additional issues:
A brief filed pursuant to Anders v. California, 386 U.S. 738 (1967), effectively concedes the appeal lacks a meritorious claim.
The Second Supplemental Appendix can be found at Docket Entry Number 22-9.
Before the appellate briefs were filed, the South Carolina Court of Appeals held the appeal in abeyance and remanded the action to the circuit court for a reconstruction hearing after Petitioner challenged the accuracy of the trial transcript and noted that a portion of the transcript was missing. [2nd Supp. App. 20.] On October 3, 2011, the trial court conducted a hearing to reconstruct the portion of the transcript that was missing. [2nd Supp. App. 882-970.]
I
[Petitioner] objects to Pachak's petition to be relieved as counsel of record, and that the granting of Pachak's petition would deny [Petitioner] his right to the effective assistance of appellate counsel on his first appeal of right.
II
Whether there is insufficient evidence [to] reasonably conclude that [Petitioner] acted in the element of sudden heat of passion to support a valid voluntary manslaughter conviction, when the element of sudden heat of passion was not established and proven beyond a reasonable doubt, as a matter of law, by the state.
III
Whether the trial court erred in instructing the jury on a charge of mutual combat, since the instruction was highly prejudicial to [Petitioner's] defense and the instruction denied [Petitioner] this right to a fair trial.[2nd Supp. App. 35-64.] The South Carolina Court of Appeals dismissed Petitioner's appeal and granted Pachak's motion to be relieved on January 16, 2013. [2nd Supp. App. 66-67.] After the court denied Petitioner's pro se petition for rehearing, the matter was remitted to the lower court on April 7, 2013. [2nd Supp. App. 68-90.]
Post-Conviction Relief Proceedings
Petitioner filed a pro se application for post-conviction relief (“PCR”) on August 22, 2013. [App. 971-80.] The PCR application raised 31 allegations of ineffective assistance of trial counsel, four allegations of ineffective assistance of appellate counsel, 15 allegations of prosecutor misconduct, one allegation of juror misconduct, and four allegations of due process violations. [App. 973-75.] Petitioner, through counsel, later filed an amendment to his application to add an additional claim of ineffective assistance of appellate counsel. [App. 981.] The State filed a return dated December 18, 2013. [App. 983-92.]
A hearing was held on April 21, 2015, and Petitioner was represented at the hearing by Anna R. Good. [App. 993-1077.] At the hearing, PCR counsel clarified that Petitioner was proceeding on the following grounds: (a) ineffective assistance of trial counsel for (1) “[f]ailure to request and perform certain pretrial motions,” (2) “[f]ailure to object to several prejudicial statements throughout the trial,” (3) “[f]ailure to object to several prejudicial statements by the prosecutor in closing arguments,” (4) “[f]ailure to object to the judge's comments on the case regarding his beliefs during sentencing,” and (5) “[f]ailure to object to one of the jury charges regarding [State v. ]Belcher,” 685 S.E.2d 802 (2009), and (b) ineffective assistance of “appellate counsel regarding missing transcript pieces” and reconstruction of the transcript. [App. 997.] In an order filed July 15, 2019, the PCR court denied and dismissed with prejudice Petitioner's PCR application. [App. 1078-1108.] The PCR court's order addressed the following claims: (1) ineffective assistance of trial counsel for failure to move for (a) a hearing pursuant to Jackson v. Denno, 371 U.S. 967 (1963), (b) an immunity hearing pursuant to the Protection of Persons and Property Act, and (c) the witnesses to be sequestered; (2) ineffective assistance of trial counsel for failure to object to (a) a victim's testimony about paralysis, (b) an investigator's testimony about a photo identification, (c) a lay witness's testimony about tire tracks, and (d) a crime scene analyst's testimony about the bullet trajectory; (3) ineffective assistance of trial counsel for failure to object to the State's closing argument; (4) ineffective assistance of trial counsel for failure to object to comments by the trial court; (5) ineffective assistance of trial counsel for failure to object to an impermissible Belcher charge; and (6) ineffective assistance of counsel for failure to adequately reconstruct the trial record. [App. 1084-1106.] Petitioner subsequently filed a pro se motion to alter or amend judgment, which the PCR court denied. [App. 1111-15.]
Petitioner appealed. [Doc. 22-10.] On April 15, 2020, Sarah E. Shipe with the South Carolina Commission on Indigent Defense filed on Petitioner's behalf a petition for writ of certiorari in the Supreme Court of South Carolina. [Doc. 22-11.] The petition asserted the following issue:
Did the PCR court err in finding trial counsel was not ineffective for failing to object to statements made by the solicitor during closing that were inflammatory and improperly
played to the jury's emotions where the solicitor repeatedly referred to the decedent as an “Iraqi war veteran,” one wounded man's body as having been “splattered,” and another injured man's wound as a “bone sticking out [of] his leg?[Id. at 3 (alteration in original).] The appeal was transferred to the South Carolina Court of Appeals, which denied the petition on April 1, 2022. [Docs. 22-13; 22-14.] Remittitur was issued on April 21, 2022, and filed in the Lexington County Court of Common Pleas on April 29, 2022. [Doc. 22-15.]
Petition for Writ of Habeas Corpus
Petitioner filed this Petition for writ of habeas corpus on October 13, 2022. [Doc. 1.] Petitioner raises the following grounds, quoted substantially verbatim:
GROUND ONE: The trial court erred in refusing to grant a [d]irected [v]erdict to the charges against the Petitioner because his actions were in self-[d]efense and [d]efense of [a]nother. This violated the Petitioner's 5th and 14th Amendment rights of [d]ue [p]rocess of the U.S. Constitution.
GROUND TWO: There was insufficient evidence to convince a rational trier of fact beyond a reasonable doubt that the Petitioner acted in the element of “sudden heat of passion” to support a valid voluntary manslaughter conviction, when the element of “sudden heat of passion” was not established and proven beyond a reasonable doubt, as a matter of law, by the State. This violated Petitioner's 5th and 14th Amendments [d]ue [p]rocess [r]ights of the U.S. Constitution.
GROUND THREE: The trial court erred in instructing the jury on a charge of mutual combat, since the instruction was highly prejudicial to Petitioner's self-[d]efense and [d]efense of [a]nother defenses. This violated Petitioner's 5th and 14th Amendment rights of [d]ue [p]rocess of the U.S. Constitution; thus denying Petitioner his right to a fair trial.
GROUND FOUR: Trial counsel was ineffective for failing to motion during Petitioner's sentencing hearing, or file a post-trial motion after the sentencing hearing, for an acquittal, when the trial court declared the jury verdict a “compromise verdict,” any sentence the Court gave Petitioner would not serve justice, and Petitioner should not look to the Court's sentence for justice. This violated Petitioner's 5th, 6th, and 14th Amendment rights of effective assistance of counsel, and [d]ue [p]rocess [r]ights of the U.S. Constitution.
GROUND FIVE: Trial counsel [was] ineffective for not filing a pre-trial motion for the “Protection of Persons and Property Act.” This violated Petitioner's 5th, 6th, and 14th Amendment rights of effective assistance of counsel and due process rights of the U.S. Constitution.
GROUND SIX: Trial counsel [was] ineffective for requesting erroneous, prejudicial, and burden shifting jury instructions of voluntary manslaughter and assault and battery of a high and aggravated nature (ABHAN). This violated Petitioner's 5th, 6th, and 14th Amendment rights of effective assistance of counsel and due process rights of the U.S. Constitution.
GROUND SEVEN: Trial counsel [was] ineffective for failing to pre-trial interview and investigate witnesses. This violated Petitioner's 5th, 6th, and 14th Amendment rights of effective assistance of counsel, right to confrontation of witnesses against him, and Due Process rights of the U.S. Constitution.
GROUND EIGHT: Trial counsel [was] ineffective for failing to cross-examine and impeach witness[es] with relevant exculpatory evidence. This violated Petitioner's 5th, 6th, and 14th Amendment rights of effective assistance of counsel, right to confrontation of witness[es] against him, and due process rights of the U.S. Constitution.
GROUND NINE: Trial counsel was ineffective for failing to present expert witness testimony to testify that Petitioner's actions were consistent with the defenses of [s]elf-[d]efense and [d]efense of [a]nother. This violated Petitioner's 5th, 6th, and 14th Amendment rights of effective assistance of counsel and [d]ue [p]rocess [r]ights of the U.S. Constitution.
GROUND TEN: Trial counsel [was] ineffective for making improper comments during closing arguments. This violated Petitioner's 5th, 6th, and 14th amendment rights of effective assistance of counsel and [d]ue [p]rocess [r]ights of the U.S. Constitution.
GROUND ELEVEN: Trial counsel was ineffective for failing to request tailored jury instructions to support Petitioner's defenses of [d]efense of [a]nother and [s]elf-[d]efense. This violated Petitioner's 5th, 6th, and 14th Amendment rights of effective assistance of counsel and due process rights of the U.S. Constitution.
GROUND TWELVE: Trial counsel was ineffective for failing to object to erroneous prejudicial, and burden shifting jury instructions; and failed to motion for a mistrial because Petitioner was denied a fair trial. This violated Petitioner's 5th, 6th, and 14th Amendment rights of [d]ue [p]rocess and effective assistance of counsel of the U.S. Constitution.
GROUND THIRTEEN: Trial counsel [was] ineffective for failing to present character witnesses and character evidence of Petitioner's good character. This violated Petitioner's 5th, 6th, and 14th Amendment rights of effective assistance of counsel, due process rights, and the right to have compulsory process for obtaining witnesses in his favor of the U.S. Constitution.
GROUND FOURTEEN: Trial counsel [was] ineffective for failing to object to the Prosecutor's unconstitutional, burden shifting, and prejudicial closing argument statements; and failed to motion for a mistrial. This violated the Petitioner's 5th, 6th, and 14th
Amendment rights of effective assistance of counsel and Due Process Rights of the U.S. Constitution.[Docs. 1 at 5-10; 1-2 at 127-68.] The case is now ripe for review.
APPLICABLE LAW
Liberal Construction of Pro Se Petition
Petitioner brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se petition is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(a). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
Habeas Corpus
Generally
Because Petitioner filed the Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision,” and “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 101-02 (2011). Moreover, state court factual determinations are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Procedural Bar
Federal law establishes this Court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person “is in custody in violation of the Constitution or laws or treaties of the United States” and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural bypass operate to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this Court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (I) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254. The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. Id. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must fairly present his claim to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds for relief be stated in the direct appeal or PCR application. S.C. App. Ct. R. 203; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). Further, strict time deadlines govern direct appeal and the filing of a PCR application in the South Carolina courts. For direct appeal, a notice of appeal must be filed and served on all respondents within ten days after the sentence is imposed or after receiving written notice of entry of the order or judgment. S.C. App. Ct. R. 203(b)(2), (d)(1)(B). A PCR application must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.
If any avenue of state relief is still available, the petitioner must proceed through the state courts before requesting a writ of habeas corpus in the federal courts. Richardson v. Turner, 716 F.2d 1059, 1062 (4th Cir. 1983); Patterson v. Leeke, 556 F.2d 1168 (4th Cir. 1977). Therefore, in a federal petition for habeas relief, a petitioner may present only those issues that were presented to the Supreme Court of South Carolina through direct appeal or through an appeal from the denial of a PCR application, regardless of whether the Supreme Court actually reached the merits of the claim.
Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner seeks habeas corpus relief based on an issue he failed to raise at the appropriate time in state court, removing any further means of bringing that issue before the state courts. In such a situation, the petitioner has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. See Smith v. Murray, 477 U.S. 527, 533 (1986). The United States Supreme Court has stated that the procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See id. Bypass can occur at any level of the state proceedings if a state has procedural rules that bar its courts from considering claims not raised in a timely fashion. Id.
The Supreme Court of South Carolina will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. See S.C. Code Ann. § 1727-90; Aice v. State, 409 S.E.2d 392, 394 (S.C. 1991). Further, if a prisoner has failed to file a direct appeal or a PCR application and the deadlines for filing have passed, he is barred from proceeding in state court. S.C. App. Ct. R. 203(d)(3), 243. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. See Reed v. Ross, 468 U.S. 1, 11 (1984); see also Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995). As the United States Supreme Court explained:
. . . [State procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed, 468 U.S. at 10-11.
However, if a federal habeas petitioner can show both (1) “‘cause' for noncompliance with the state rule” and (2) “‘actual prejudice resulting from the alleged constitutional violation[,]'” the federal court may consider the claim. Smith, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986). Further, if the petitioner does not raise cause and prejudice, the court need not consider the defaulted claim. See Kornahrens, 66 F.3d at 1363.
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Absent a showing of cause and actual prejudice, a federal court is barred from considering the claim. Wainwright, 433 U.S. at 87. In such an instance, the exhaustion requirement is technically met, and the rules of procedural bar apply. Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman, 501 U.S. at 735 n.1; Teague, 489 U.S. at 297-98; George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)).
Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this Court may consider claims that have not been presented to the Supreme Court of South Carolina in limited circumstances-where a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or where a “fundamental miscarriage of justice” has occurred, Carrier, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim, where the novelty of the constitutional claim is such that its legal basis is not reasonably available to the petitioner's counsel. Id. at 487-89; Reed, 468 U.S. at 16. Absent a showing of “cause,” the court is not required to consider “actual prejudice.” Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice to excuse a default. Carrier, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error. Engle v. Isaac, 456 U.S. 107, 134-35 (1982).
As an alternative to demonstrating cause for failing to raise the claim, the petitioner may show a miscarriage of justice. To demonstrate a miscarriage of justice, the petitioner must show he is actually innocent. See Carrier, 477 U.S. at 496 (holding a fundamental miscarriage of justice occurs only in extraordinary cases, “where a constitutional violation has probably resulted in the conviction of someone who is actually innocent”). Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 623 (1998). To demonstrate this actual innocence standard, the petitioner's case must be truly extraordinary. Carrier, 477 U.S. at 496.
DISCUSSION
Procedurally Defaulted Grounds
Procedural default is an affirmative defense that is waived if not raised by respondents. Gray v. Netherland, 518 U.S. 152,165-66 (1996). If the defense is raised, it is the petitioner's burden to raise cause and prejudice or actual innocence; if not raised by the petitioner, the court need not consider the defaulted claim. Kornahrens v. Evatt, 66 F.3d 1350 (4th Cir.1995). Here, Respondent contends Grounds Six through Thirteen and a portion of Ground Fourteen are procedurally barred. [Doc. 22 at 9-11.] Petitioner does not contend that these grounds are properly exhausted but instead argues he can establish cause and actual prejudice for any procedurally barred claims under Martinez v. Ryan, 566 U.S. 1 (2012), because his PCR counsel was ineffective in failing to pursue these claims at his PCR evidentiary hearing. [Docs. 1 at 10; 1-2 at 11-13; 32 at 2-3; 32-2 at 14-16, 17; 35.] In response to Petitioner's argument that he can establish cause under Martinez, Respondent filed a very brief reply asserting that, even if the Court were to conclude that Petitioner could establish cause and prejudice, Petitioner is barred from developing his claims through an evidentiary hearing based on Shinn v. Ramirez, 142 S.Ct. 1718 (2022).
Most of these grounds were presented to the PCR court in Petitioner's pro se PCR application. [App. 973-75.] However, as stated, at the hearing, PCR counsel clarified which grounds Petitioner was proceeding on and omitted the grounds Petitioner now seeks to raise in this § 2254 action. [App. 997.] At the hearing, Petitioner repeatedly stated on the record that he had other grounds he wanted to present, but the PCR court ruled that the record had already been closed and Petitioner could not retake the stand. [App. 1058-76.]
In Shinn, the Supreme Court held that even when a habeas petitioner is pursuing a Martinez claim based on ineffective assistance of state post-conviction counsel, “a federal court may order an evidentiary hearing or otherwise expand the state-court record only if the prisoner can satisfy § 2254(e)(2)'s stringent requirements.” 142 S.Ct. at 1735.
The Court concludes that the briefing is insufficient to determine whether Petitioner can establish cause and prejudice in this case. As an initial matter, the PCR court noted that after the PCR evidentiary hearing, Petitioner relieved appointed PCR counsel and proceeded pro se pursuant to a consent order issued on September 22, 2015. [App. 1107.] Thereafter, Petitioner filed a pro se motion to alter or amend judgment in the PCR court and asked the PCR court to “mak[e] specific findings of fact and stat[e] expressly the conclusions of law relating to each issue raised and presented” throughout the PCR action. [App. 1111-13.] Accordingly, it appears that Petitioner properly preserved these grounds for PCR appellate review. Nonetheless, in his petition for writ of habeas corpus, Petitioner raised only one issue-whether trial counsel was ineffective for failing to object to statements made by the solicitor during closing arguments. [Doc. 22-11 at 3.] Accordingly, the Court concludes that additional briefing is needed regarding whether Martinez is applicable where PCR counsel was relieved during the PCR action, Petitioner proceeded pro se through the remainder of the PCR action and filed a motion asking the PCR court to rule on all grounds that had been raised, and Petitioner did not subsequently raise those grounds in the PCR appeal. Additional briefing is also needed regarding whether, if Martinez is applicable, Petitioner can establish cause and prejudice under Martinez, either by meeting § 2254(e)(2)'s requirements for an evidentiary hearing or on the basis of the current state-court record.
Merits of Remaining Grounds
Under the AEDPA, a federal court may not grant habeas relief unless the underlying state court decision was contrary to or an unreasonable application of federal law, as determined by the United States Supreme Court, 28 U.S.C. § 2254(d)(1), or based on an unreasonable determination of the facts before the court, id. § 2254(d)(2). The Supreme Court has held the “contrary to” and “unreasonable application of” clauses present two different avenues for relief. Williams, 529 U.S. at 405. The Court stated there are two instances when a state court decision will be contrary to Supreme Court precedent:
A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases.... A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts
that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.Id. at 405-06. Additionally, a state court decision is an unreasonable application of Supreme Court precedent when the decision “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” Id. at 407-08; see also Richter, 562 U.S. at 102 (“Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.... It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.”). Finally, a decision cannot be contrary to or an unreasonable application of Supreme Court precedent unless applicable Supreme Court precedent exists; without applicable Supreme Court precedent, there is no habeas relief for petitioners. Virsnieks v. Smith, 521 F.3d 707, 716 (7th Cir. 2008); see Bustos v. White, 521 F.3d 321, 325 (4th Cir. 2008).
Grounds One and Two
In Ground One, Petitioner argues the trial court erred in refusing to grant a directed verdict because Petitioner's actions were in self-defense and defense of another. [Docs. 1 at 5; 1-2 at 2-3.] In Ground Two, Petitioner argues there was insufficient evidence to support a valid voluntary manslaughter conviction because the element of “sudden heat of passion” was not established and proven beyond a reasonable doubt. [Docs. 1 at 7; 1-2 at 4-6.]
Both of these grounds challenge the sufficiency of the evidence. Such a claim is cognizable on collateral review; “however, a federal court's review of such claims is ‘sharply limited.'” Wilson v. Greene, 155 F.3d 396, 405 (4th Cir. 1998) (quoting Wright v. West, 505 U.S. 277, 296 (1992)); see also Evans-Smith v. Taylor, 19 F.3d 899, 905 (4th Cir. 1994) (“The standard is obviously rigorous.”). “Federal review of the sufficiency of the evidence to support a state conviction is not meant to consider anew the jury's guilt determination or to replace the state's system of direct appellate review.” Wilson, 155 F.3d at 405-06. When reviewing such a claim, a federal court must consider circumstantial as well as direct evidence and allow the government the benefit of all reasonable inferences from the facts proven to the facts sought to be established, United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982), and when faced with all the evidence that allows conflicting inferences, this Court must presume that the jury resolved such conflicts in the State's favor, Jackson v. Virginia, 443 U.S. 307, 326 (1979). Therefore, a petitioner “is entitled to relief only if ‘no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'” Wilson, 155 F.3d at 406 (quoting Jackson, 443 U.S. at 324); see also George v. Angelone, 100 F.3d 353, 357 (4th Cir. 1996). The Jackson standard “must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16. In Coleman v. Johnson, the Supreme Court explained,
We have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference. First, on direct appeal, “it is the responsibility of the jury-not the court-to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact
could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1,----, 132 S.Ct. 2, 4 . . . (2011) (percuriam). And second, on habeas review, “a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was ‘objectively unreasonable.'” Ibid. (quoting Renico v. Lett, 559 U.S. 766, ---, 130 S.Ct. 1855, 1862 . . . (2010)).566 U.S. 650, 651 (2012) (per curiam).
Ground One
A directed verdict is appropriate only when the prosecution presents no evidence whatsoever of one or more elements of the charged offense. State v. McCluney, 606 S.E.2d 485, 486 (S.C. 2004); State v. McLauren, 563 S.E.2d 346, 351 (S.C. 2002). The trial court may not weigh the sufficiency of the evidence. McLauren, 563 S.E.2d at 351. In other words, if the prosecution has presented any evidence of the elements of the charged offense, the case will survive a motion for directed verdict.
At trial, at the conclusion of the State's case in chief, trial counsel moved for directed verdicts on all charges, and the trial court denied the motion. [App. 627-29.] At the end of the defense's case, Petitioner renewed the motion for directed verdicts, and the Court again denied the motion. [App. 765-66.] Petitioner then raised the issue on appeal, and the South Carolina Court of Appeals dismissed the appeal. [2nd Supp. App. 22, 66-67.] The Court now turns to the evidence presented at trial on each of Petitioner's charges.
Murder Charge
Petitioner was indicted for murder for shooting Isaac Wilson (“Isaac”) with a Smith and Wesson 40 caliber pistol. [App. 1117.] South Carolina Code § 16-3-10 provides that “[m]urder is the killing of any person with malice aforethought, either express or implied.” Accordingly, the State had to prove that Petitioner killed the victim and did so with malice. “‘Malice' is the wrongful intent to injure another and indicates a wicked or depraved spirit intent on doing wrong.” State v. Kelsey, 502 S.E.2d 63, 69 (S.C. 1998). “In the context of murder, malice does not require ill-will toward the individual injured, but rather it signifies a general malignant recklessness of the lives and safety of others, or a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief.” In re Tracy B., 704 S.E.2d 71, 80 (S.C. Ct. App. 2010) (internal quotation marks omitted).
At trial, Walter Gadson (“Gadson”), one of the victims, testified that he and Isaac had been in a physical altercation with Petitioner earlier the same day and that, as Petitioner drove away, he yelled, “y'all gonna get y'all's.” [App. 151-52.] Petitioner also admitted to the altercation. [App. 670-75.] Another witness testified that she was at Isaac's apartment when she heard a knock and then watched Isaac, Gadson, and A.J. Wilson (“A.J.”) walk outside on the patio. [App. 89-91.] After the three men walked outside, the witness heard someone say, “you've been sleeping with my girlfriend,” and recognized the voice as Petitioner's. [App. 91.] The witness then heard gunshots and saw Isaac drop to the floor. [App. 91-92.] Gadson testified that he saw Petitioner with a pistol in his hand before he heard gunshots. [App. 173-74.] Additionally, evidence was presented that Isaac's blood was found on Petitioner's right shoe and gunshot residue was found on Petitioner's hand. [App. 563-64, 608.] Based upon a review of the evidence submitted at trial, the Court cannot find that Petitioner has shown that no rational trier of fact could have found him guilty of the murder charge. See Wilson, 155 F.3d at 406. Thus, the state court's denial of Petitioner's motion for directed verdict on the murder charge was not contrary to, nor an unreasonable application of, clearly established federal law. Further, it was not based upon an unreasonable determination of facts in light of the state court record.
Petitioner seems to contend that he was entitled to a directed verdict because of his defenses of self-defense and defense of another. [Docs. 1-2 at 2-3; 32-2 at 23-29.] Here, evidence allowing conflicting inferences was presented to the jury, and the jury was instructed on murder, voluntary manslaughter, self-defense, and defense of others. [App. 850-65.] As stated, when faced with evidence allowing conflicting inferences, this Court must presume that the jury resolved such conflicts in the State's favor. Jackson, 443 U.S. at 326. Thus, even if sufficient evidence demonstrated Petitioner acted in self-defense or defense of another, it would not prevent a jury from rejecting that defense where sufficient evidence also exists to prove every element of murder.
ABWIK Charge Related to A.J. Wilson
Petitioner was indicted for ABWIK for shooting A.J. with a Smith and Wesson 40 caliber pistol. [App. 1119.] ABWIK “comprises all the elements of murder except the death of the victim. To be convicted of [ABWIK], the jury must be satisfied beyond a reasonable doubt that if the victim had died, the defendant would have been guilty of murder.” State v. Wilds, 584 S.E.2d 138, 141 (S.C. Ct. App. 2003) (internal citations omitted).
“The South Carolina legislature abolished common-law [ABWIK] ¶ 2010.” Ceasar v. United States, No. 4:06-cr-01030-RBH-1, 2018 WL 3009099, at *3 n.6 (D.S.C. June 15, 2018).
At trial, A.J. testified that he had been hanging out in the apartment with Isaac and Gadson when Gadson heard something, walked outside, and then walked back inside and said, “that's them outside,” referring to Petitioner. [App. 244.] Isaac got a shotgun, and the three men walked outside. [App. 244.] They walked into the street and saw someone walking toward them. [App. 245-46.] A.J. saw the person reach for something he thought was a gun, so he said, “he got a gun,” and took off running back toward the apartment's patio. [App. 249.] As he was running, he heard gunshots. [App. 250.] Once he got inside, he turned around and did not see Isaac, so he ran back outside to help him. [App. 250-51.] When he got outside, he saw Isaac on the ground with someone on top of him. [App. 251.] A.J. tried to pull the person off of Isaac and then he saw a second person standing off to the side, and the person pulled a gun and shot A.J. [App. 252-54.] A.J. was shot in the mouth, his right hand, his side, and his back. [App. 254-55.] As stated, Gadson testified that he saw Petitioner with a pistol in his hand [App. 173-74], and evidence was presented that gunshot residue was found on Petitioner's hand [App. 563-64]. Moreover, A.J.'s blood was found on Petitioner's left shoe. [App. 608.] Based upon a review of the evidence submitted at trial, the Court cannot find that Petitioner has shown that no rational trier of fact could have found him guilty of the ABWIK charge related to A.J. See Wilson, 155 F.3d at 406. Thus, the state court's denial of Petitioner's motion for directed verdict on the ABWIK charge was not contrary to, nor an unreasonable application of, clearly established federal law. Further, it was not based upon an unreasonable determination of facts in light of the state court record.
Again, Petitioner seems to contend that he was entitled to a directed verdict because of his defenses of self-defense and defense of another. [Docs. 1-2 at 2-3; 32-2 at 23-29.] The jury was instructed on ABWIK, assault and battery of a high and aggravated nature, self-defense, and defense of others [App. 855-65], and this Court must presume that the jury resolved such conflicts in the State's favor, Jackson, 443 U.S. at 326. Thus, even if sufficient evidence demonstrated Petitioner acted in self-defense or defense of another, it would not prevent a jury from rejecting that defense where sufficient evidence also exists to prove every element of ABWIK.
ABWIK Charge Related to Walter Gadson
Petitioner was indicted for ABWIK for driving a vehicle into Gadson. [App. 1123.] As previously noted, ABWIK “comprises all the elements of murder except the death of the victim. To be convicted of [ABWIK], the jury must be satisfied beyond a reasonable doubt that if the victim had died, the defendant would have been guilty of murder.” Wilds, 584 S.E.2d at 141 (internal citations omitted).
As noted, Gadson testified at trial that he and Petitioner had been in a physical altercation earlier the same day and that, as Petitioner drove away, he yelled, “y'all gonna get y'all's.” [App. 151-52.] Petitioner also admitted to the altercation. [App. 670-75.] Then, later that evening, Gadson noticed a mid-size S.U.V. drive slowly by the apartment and back in to park. [App. 154.] Gadson later saw Petitioner get out of the vehicle's driver's seat. [App. 159.] After some words were exchanged between Petitoner's brother and Isaac, A.J., and Gadson, Petitioner's brother dropped a metal rod he had been holding and reached down to his pants leg. [App. 159, 168-69.] A.J. told the others that Petitioner's brother had a gun, and then A.J. and Isaac starting running back toward the patio at the apartment. [App. 169.] As Isaac ran, he swung and released the shot gun he was holding, and Gadson caught the gun. [App. 170-71.] At the same time, Petitioner put the car in gear and came toward Gadson. [App. 171.] Gadson tried to pull the trigger to shoot the vehicle, but the safety was on. [App. 170-71.] Gadson then tried to run toward the patio, but before he could get near it, the vehicle hit him from behind and ran him into a wall. [App. 171-72.] Gadson landed in some bushes and shrubs, and when he looked up, he saw Petitioner get out of the vehicle with a pistol in his hand. [App. 172-74.] Based upon a review of the evidence submitted at trial, the Court cannot find that Petitioner has shown that no rational trier of fact could have found him guilty of the ABWIK charge related to Gadson. See Wilson, 155 F.3d at 406. Thus, the state court's denial of Petitioner's motion for directed verdict on the ABWIK charge was not contrary to, nor an unreasonable application of, clearly established federal law. Further, it was not based upon an unreasonable determination of facts in light of the state court record.
Again, Petitioner seems to contend that he was entitled to a directed verdict because of his defenses of self-defense and defense of another. [Docs. 1-2 at 2-3; 32-2 at 23-29.] The jury was instructed on ABWIK, assault and battery of a high and aggravated nature, self-defense, and defense of others [App. 855-65], and this Court must presume that the jury resolved such conflicts in the State's favor, Jackson, 443 U.S. at 326. Thus, even if sufficient evidence demonstrated Petitioner acted in self-defense or defense of another, it would not prevent a jury from rejecting that defense where sufficient evidence also exists to prove every element of ABWIK.
Possession of a Firearm or Knife Charge
Petitioner was indicted for possession of a firearm or knife during the commission of a violent crime based on possessing and firing a Smith and Wesson 40 caliber pistol, killing Isaac and striking A.J. [App. 1121.] South Carolina Code § 16-23-490 provides that “[i]f a person is in possession of a firearm or visibly displays what appears to be a firearm . . . during the commission of a violent crime and is convicted of committing or attempting to commit a violent crime as defined in Section 16-1-60, he must be imprisoned five years, in addition to the punishment provided for the principal crime.” At the time Petitioner was indicted and tried, SC Code § 16-1-60 provided that a violent crime included the offense of murder and ABWIK.
The Court has already concluded that there was sufficient evidence to allow the jury to decide the murder and assault and battery with intent to kill charges. As noted, Gadson testified that he saw Petitioner with a pistol in his hand [App. 173-74], and evidence was presented that gunshot residue was found on Petitioner's hand [App. 563-64]. Based upon a review of the evidence submitted at trial, the Court cannot find that Petitioner has shown that no rational trier of fact could have found him guilty of the possession of a firearm or knife during the commission of a violent crime charge. See Wilson, 155 F.3d at 406. Thus, the state court's denial of Petitioner's motion for directed verdict on this charge was not contrary to, nor an unreasonable application of, clearly established federal law. Further, it was not based upon an unreasonable determination of facts in light of the state court record.
For all of these reasons, Ground One is without merit, and Respondent's motion for summary judgment should be granted as to Ground One.
Ground Two
Petitioner was convicted of voluntary manslaughter as a lesser-included offense of the murder charge. [App. 876.] On appeal, Petitioner argued that the trial evidence was insufficient to support the voluntary manslaughter conviction, and the South Carolina Court of Appeals dismissed the appeal. [2nd Supp. App. 45-52, 66-67.] Under South Carolina law, “[v]oluntary manslaughter is the unlawful killing of a human being in sudden heat of passion upon sufficient legal provocation.” State v. Cole, 525 S.E.2d 511, 513 (S.C. 2000). “The sudden heat of passion, upon sufficient legal provocation, which mitigates a felonious killing to manslaughter, while it need not dethrone reason entirely, or shut out knowledge and volition, must be such as would naturally disturb the sway of reason, and render the mind of an ordinary person incapable of cool reflection, and produce what, according to human experience, may be called an uncontrollable impulse to do violence.” Id. (internal quotation marks omitted).
At trial, Petitioner testified that he and his brother had decided to go talk to Isaac and Gadson to find out why they had jumped Petitioner earlier that day. [App. 677-78.] When they arrived at Isaac's apartment, Petitioner's brother got out of the vehicle and Petitioner stayed in the vehicle. [App. 686.] As he was sitting in his vehicle, Petitioner saw Isaac, Gadson, and another man walking toward the vehicle with three shotguns. [App. 687-90.] He also heard Isaac tell the others that they were “going to shoot the n*****.” [App. 691-92.] Petitioner was terrified that he and his brother were going to lose their lives. [App. 692.] Petitioner testified that he subsequently ran over Gadson because he was pointing a gun at Petitioner's brother and then he saw Isaac with a shotgun pointed at his brother, so Petitioner, still terrified, got a gun out of the glove box and shot it. [App. 729, 733-35.] Gadson testified that he “heard several shots. More than five.” [App. 175.] This evidence supports the voluntary manslaughter conviction because Petitioner's testimony that the three men had guns and had said they were going to shoot Petitioner and his brother, along with the testimony that they had a gun pointed at his brother, supports a finding that there was provocation. Additionally, Petitioner's testimony that, in response to being terrified that he and his brother were going to lose their lives, he ran over Gadson with a vehicle and then fired a gun he found in the glove box of his brother's vehicle along with Gadson's evidence that he heard more than five gun shots is sufficient evidence to support a finding that Petitioner acted in a sudden heat of passion. See State v. Payne, 862 S.E.2d 81, 98 (S.C. Ct. App. 2021) (finding that “unlike the lack of any evidence of sudden heat of passion in [other cases], there is some evidence in the present case from which the jury could have reasonably inferred that [the shooter] was incapable of cool reflection and was acting under an uncontrollable impulse to do violence” (internal quotation marks omitted)), reh'g denied (Aug. 31, 2021), cert. granted (Mar. 30, 2023). Thus, the Court cannot find that Petitioner has shown that no rational trier of fact could have found him guilty of voluntary manslaughter. See Wilson, 155 F.3d at 406. Therefore, the state court's dismissal of Petitioner's appeal was not contrary to, nor an unreasonable application of, clearly established federal law. Further, it was not based upon an unreasonable determination of facts in light of the state court record. Accordingly, Ground Two is without merit, and Respondent's motion for summary judgment should be granted as to Ground Two.
Ground Three
In Ground Three, Petitioner argues that the trial court erred in instructing the jury on a charge of mutual combat, which was highly prejudicial to Petitioner's defenses of selfdefense and defense of another. [Docs. 1 at 8; 1-2 at 7-10.] Trial counsel challenged the mutual combat instruction, and the trial court decided to give the instruction. [App. 772-73, 859-60.] Petitioner raised the issue on appeal, and the South Carolina Court of Appeals dismissed the appeal. [2nd Supp. App. 53-63, 66-67.]
“Alleged errors in state court jury instructions . . . are matters of state law and do not provide a basis for federal habeas corpus relief unless the instructions infect the entire trial such that due process has been denied.” Temoney v. Sapp, No. 0:06-1983-CMC-BM, 2007 WL 752200, at *8 (D.S.C. Mar. 1, 2007). The Supreme Court has stated,
The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process, not merely
whether the instruction is undesirable, erroneous, or even universally condemned.Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (footnote and internal quotation marks and citation omitted).
“Mutual combat relates primarily to the law of self-defense.” State v. Bowers, 875 S.E.2d 608, 612 (2022). Under the doctrine of mutual combat, if a criminal defendant is engaged in mutual combat with the victim, then the no-fault element of self-defense cannot be established. Id. Thus, if the doctrine of mutual combat applies, it negates the defense of self-defense. Id. To establish mutual combat, “there must be mutual intent and willingness to fight.” State v. Taylor, 589 S.E.2d 1, 3 (S.C. 2003) (internal quotation marks omitted). Mutual intent may be shown by acts and conduct of the parties and the circumstances leading to the combat. Id.
At trial, evidence was admitted showing that Petitioner and his brother went to Isaac's apartment with brass knuckles, a metal rod or pipe, and a pistol. [App. 159, 161, 168-69, 173, 465, 679.] Once Isaac, A.J., and Gadson realized that Petitioner and his brother were there, the three of them walked out to meet them, and Isaac had a shotgun. [App. 244.] On this record, the Court concludes that Petitioner has failed to establish that the mutual combat jury instruction was erroneous. Moreover, even if it was erroneous, Petitioner has not shown that it was so prejudicial that it affected the outcome of the entire trial. Accordingly, Ground Three is without merit, and Respondent's motion for summary judgment should be granted as to Ground Three.
Grounds Four, Five, and a Portion of Fourteen
Grounds Four, Five, and the exhausted portion of Ground Fourteen raise claims of ineffective assistance of trial counsel. When evaluating a habeas petition based on a claim of ineffective assistance of counsel, assuming the state court applied the correct legal standard-the Supreme Court's holdings in Strickland-“[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard.” Richter, 562 U.S. at 101. “A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id.; see also Yarborough v. Gentry, 540 U.S. 1, 6 (2003) (stating judicial review of counsel's performance is “doubly deferential when it is conducted through the lens of federal habeas”). Consequently, a “state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, the habeas court must determine whether it is possible for fairminded jurists to disagree that the arguments or theories supporting the state court's decision are inconsistent with Supreme Court precedent. Id.
In Strickland v. Washington, the United States Supreme Court established that to challenge a conviction based on ineffective assistance of counsel, a prisoner must prove two elements: (1) his counsel was deficient in his representation and (2) he was prejudiced as a result. 466 U.S. 668, 687 (1984). To satisfy the first prong, a prisoner must show that “counsel's representation fell below an objective standard of reasonableness.” Id. at 688. To satisfy the second prong, a prisoner must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The Supreme Court has cautioned that “[j]udicial scrutiny of counsel's performance must be highly deferential,” and “[b]ecause of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
Ground Four
In Ground Four, Petitioner contends that trial counsel was ineffective for failing to move for an acquittal “when the trial court declared the jury verdict a ‘compromise verdict,' any sentence the [trial c]ourt gave Petitioner would not serve justice, and Petitioner should not look to the [trial c]ourt's sentence for justice.” [Doc. 1-2 at 127.] The PCR court evaluated trial counsel's performance under the standard set forth in Strickland. [App. 1081-83, 1101-03.] The PCR court found,
The Court is not convinced Ground Four is not procedurally barred because it was not raised in the petition for writ of certiorari in Petitioner's PCR appeal. [See Doc. 22-11.] However, because procedural default is an affirmative defense that is waived if not raised by respondents, Gray, 518 U.S. at 165-66, the Court addresses the merits of this ground.
[Petitioner] makes a claim that the trial court impermissibly commented on the jury's verdict during the sentencing hearing and that counsel's failure to object was prejudicial. [Petitioner] testified the trial judge said the jury's verdict was a compromised verdict and any sentence the judge could impose would not serve justice. [Petitioner] stated he received both concurrent and consecutive sentences. He also noted that counsel did not object to the trial court's expression of its personal beliefs about whether the verdict was correct.
The trial court postponed sentencing in this case and indicated to all parties at the sentencing hearing that he spent a tremendous amount of time considering the appropriate sentence. The record reflects that the trial court stated prior to ruling on a post-trial motion: “. . . I think it's a fair characterization of the verdict, to call it a compromise verdict - that it was not prejudicial to your client.” After having heard numerous victims' relatives speak, and after having heard trial counsel's mitigation presentation and [Petitioner]'s own statement of remorse, the court asked for latitude to speak and stated: “This is an absolute tragedy....The jury's verdict, as
I indicated to you, seemed to me to be somewhat of a compromise verdict.... Now that I'm saddled with the responsibility of deciding what the punishment for the defendants will be ....” The trial court went on to pontificate that, in his analysis, each side of the aisle had a different idea of justice in this case and asked the parties not to “look to [his] sentence for justice.... Justice will be doled out by your Lord and Maker.... There's no sentence [the court could issue] that's going to be right and that's going to serve justice.” The court concluded: “Having said that, with the worldly means that are at my disposal, I will try and I will impose a sentence.”
At PCR, trial counsel testified that she did not interpret the comment by the trial court in the manner presented by PCR counsel. Trial counsel testified she did not object to these comments because she did not believe the judge was expressing an opinion that the verdict should have been murder rather than voluntary manslaughter, but that the trial court had “heard the facts and [had] to base his sentence on a number of factors including the facts of the trial.”
This Court finds no merit to the ineffective assistance of counsel allegation. The undersigned agrees with trial counsel's interpretation of the record and finds no deficient performance or prejudice in the failure to object to the court's remarks prior to issuing its sentence. A judge or other sentencing authority is to be accorded very wide discretion in determining an appropriate sentence, and must be permitted to consider any and all information that reasonably might bear on the proper sentence for the particular defendant, given the crime committed. There are restrictions on factors the sentencing court may take into account. They include a defendant's choice to exercise the constitutional right to jury trial or against self-incrimination, materially false or unreliable information, and a defendant's religious or political beliefs (which is distinguishable from the motivation for a crime).
The record does not reflect any objectionable basis within the court's comments, as the court did not consider any improper factor prior to issuing its sentence. Rather, the court expressly stated that it would issue a sentence within its “worldly means” at its disposal, indicating consideration of only relevant facts and circumstances. As the record reflects no basis for objection, there can be no Strickland error or prejudice in counsel's representation at this stage of
[Petitioner]'s criminal proceedings, and this allegation is denied.[App. 1101-03 (alterations in original) (internal citations omitted).]
Because the PCR court applied the correct legal standard, and because the record fails to demonstrate the court confronted a set of facts that were materially indistinguishable from those considered in a decision of the Supreme Court but arrived at a result different from Supreme Court precedent, the Court concludes the state court's decision was not contrary to applicable Supreme Court precedent. Thus, this Court must analyze ?whether the state court's application of the Strickland standard was unreasonable.” Richter, 562 U.S. at 101.
Contrary to Petitioner's assertion, this Court cannot find that the PCR court's application of Strickland was unreasonable. The PCR court's determination is supported by the record, and nothing in the record reflects that the court considered improper factors at sentencing or that Petitioner was entitled to an acquittal based on the trial court's comments. This Court cannot find the PCR Court's decision was unreasonable application of Strickland, and Petitioner has not alleged or shown that the PCR court's conclusion was the result of unreasonable factual findings. Accordingly, the undersigned recommends that Respondent's motion for summary judgment be granted with respect to Ground Four.
Ground Five
In Ground Five, Petitioner argues that trial counsel was ineffective for failing to file a pre-trial motion for immunity. [Doc. 1-2 at 128.] Again the PCR court evaluated trial counsel's performance under the standard set forth in Strickland. [App. 1081-83, 1084-88.] The PCR court found as follows:
Just as with Ground Four, the Court is not convinced that Ground Five is not procedurally barred because it was not raised in the petition for writ of certiorari in Petitioner's PCR appeal. [See Doc. 22-11.] However, because procedural default is an affirmative defense that is waived if not raised by respondents, Gray, 518 U.S. at 165-66, the Court addresses the merits of this ground.
This Court further finds that trial counsel did not render deficient performance or prejudice [Petitioner] by failing to request a pre-trial immunity hearing pursuant to S.C. Code Ann. § 16-11-440. [Petitioner] failed to present testimony which rationalized the importance of an immunity hearing in relation to the self-defense claim he presented at trial. More importantly, trial counsel testified at PCR that her pre-trial analysis and preparation for [Petitioner]'s defense did not include a Castle Doctrine claim because, while aware that the Act can apply when someone is in their vehicle, the facts of [Petitioner]'s case did not fall subject to the Act. Trial counsel interpreted the Act's applicability to “the type of situation where, say, an individual is just in their car in traffic and somebody tries to carjack them or something.” She assessed it was not applicable to the facts of [Petitioner]'s case.
Based upon the totality of the record in [Petitioner]'s case, this Court finds trial counsel's failure to pursue an immunity hearing pursuant to the Act was properly informed upon the applicability of the Act and was therefore not an example of deficient performance, but rather of reasonabl[e] advocacy under prevailing professional norms. This Court agrees with trial counsel's assessment that the Act did not in fact apply, and thus finds no error or prejudice on the part of trial counsel for failure to pursue an immunity hearing under the Act.
Whether a defendant is entitled to immunity under the Protection of Persons and Property Act must be decided prior to trial if either party moves for a determination regarding the Act's application to a defendant's case. “[W]hen a party raises the question of statutory immunity prior to trial, the proper standard for the circuit court to use in determining immunity under the Act is a preponderance of the evidence.” “Section 16-11-450 provides immunity from prosecution if a person is found to be justified in using deadly force under the Act.” “Consistent with the Castle Doctrine and the text of the Act, a
valid case of self-defense must exist, and the trial court must necessarily consider the elements of self-defense in determining a defendant's entitlement to the Act's immunity. This includes all elements of self-defense, save the duty to retreat.”
The record fails to establish that the Act applied in [Petitioner]'s case. [Petitioner] presented no evidence or testimony to support a finding the presumption afforded by S.C. Code Ann. § 16-11-440(A) would apply. S.C. Code § 16-11-440(A) states:
A person is presumed to have a reasonable fear of imminent peril of death or great bodily injury to himself or another person when using deadly force that is intended or likely to cause death or great bodily injury to another person if the person:
(1) against whom the deadly force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if he removes or is attempting to remove another person against his will from the dwelling, residence, or occupied vehicle; and
(2) who uses deadly force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring or has occurred.
[Petitioner] also presented no evidence or testimony that would support a finding the presumption afforded by S.C. Code Ann. 3§ 16-11-440(C) would apply. S.C. Code § 16-11-440(C) states:
A person who is not engaged in an unlawful activity and who is attacked in another place where he has a right to be, including, but not limited to, his place of business, has no duty to retreat and has the right to stand his ground and meet force with force, including deadly force, if he reasonably believes it is necessary to prevent death or great bodily injury to himself or another
person or to prevent the commission of a violent crime as defined in Section 16-1-60.
As trial counsel testified to at PCR, [Petitioner] and his brother got in a car and drove over to the location of the shooting for the purpose of confronting the victims about a physical altercation they had engaged in earlier that day. The trial record evidences that [Petitioner] initiated a confrontation between defined parties, and that [Petitioner] was a major instigator in a physical altercation that led to a later series of events including his running into a person with his vehicle and a shooting. During this chain of events, [Petitioner] drove his vehicle toward one or more victims, striking them with his vehicle. [Petitioner] held a pistol in his hand, got out of his truck after striking a victim, and proceeded after others on foot with his pistol. Though the victim crawled away, he heard several gunshots. Crucially, no eyewitness testimony identified any victim as attempting to gain access to [Petitioner]'s car.
The record in this case provides no evidence bearing significance to any provision of the Act. This incident occurred outside of the victims' residence. There was no evidence presented at trial that would support a finding that the victims were in the process of unlawfully and forcefully entering [Petitioner]'s dwelling, residence, or occupied vehicle. Further, there was no evidence presented at trial reflecting the victims were removing or attempting to remove [Petitioner] or his codefendant against their will from their dwelling, residence, or occupied vehicle. Additionally, insofar as [Petitioner] and another decided to drive over and confront the victims about a previous altercation, [Petitioner] was at fault in bringing about the difficulty and had no valid claim to self-defense. The record otherwise establishes that [Petitioner]'s case was one concerning mutual combat. [Petitioner] has failed to establish either deficient performance or prejudice in regards to this allegation.[App. 1085-88 (second alteration in original) (emphasis and internal citations omitted).]
Because the PCR court applied the correct legal standard, and because the record fails to demonstrate the court confronted a set of facts that were materially indistinguishable from those considered in a decision of the Supreme Court but arrived at a result different from Supreme Court precedent, the Court concludes the state court's decision was not contrary to applicable Supreme Court precedent. Thus, this Court must analyze ?whether the state court's application of the Strickland standard was unreasonable.” Richter, 562 U.S. at 101.
Contrary to Petitioner's assertion, this Court cannot find that the PCR court's application of Strickland was unreasonable. The PCR court's determination that trial counsel was not deficient depended largely on the court's interpretation of state law concerning the applicability of the Protection of Persons and Property Act. The state court's interpretation of state law is entitled to deference here. See Estelle v.McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”). The PCR court concluded that trial counsel was not deficient where the record failed to establish that the Protection of Persons and Property Act applied to Petitioner's case, and Petitioner has not demonstrated that the PCR court unreasonably applied Strickland in coming to that conclusion. See United States v. Wilkes, 20 F.3d 651, 654 (5th Cir. 1994) (“Counsel is not deficient for, and prejudice does not issue from, failure to raise a legally meritless claim.”). This Court cannot find the PCR Court's decision was unreasonable application of Strickland, and Petitioner has not alleged or shown that the PCR court's conclusion was the result of unreasonable factual findings. Accordingly, the undersigned recommends that Respondent's motion for summary judgment be granted with respect to Ground Five.
Ground Fourteen
In Ground Fourteen, Petitioner argues that trial counsel was ineffective for failing to object to the prosecution's “unconstitutional, burden shifting, and prejudicial closing argument statements.” [Doc. 1-2 at 14.] The PCR court addressed this issue, and Petitioner raised it in his petition for writ of certiorari on PCR appeal. [App. 1097-1100; Doc. 22-11 at 3.] The PCR court evaluated trial counsel's performance under the standard set forth in Strickland and found as follows:
Petitioner also argues that trial counsel was ineffective for failing to move for a mistrial on the same basis. [Doc. 1-2 at 14.] However, as explained, that portion of Ground Fourteen is procedurally barred.
Trial counsel testified that the record reflected that she did not object to the verbiage cited by [Petitioner]'s PCR counsel. Specifically, that the Solicitor said the body was splattered; that the Solicitor said “I knew he couldn't prove that”; and that the Solicitor said one victim was paralyzed for life and otherwise identified the victims as [an] Iraqi war veteran and “a young man asleep in a chair for the rest of his life.”
Trial counsel otherwise testified in her general practice she was aware of “a fairly standard list of things Solicitors might do that's inappropriate during closing arguments and you might have a list right there on the table or you might just be carrying a list in your head but you try to catch them.” She aptly identified her shortlist as being “the gold rule type argument,” “burden shifting arguments,” and arguments she refers to as “asking for a verdict based on something outside of the evidence” such as emotion-evoking arguments. She testified she was aware that the Solicitor who tried [Petitioner]'s case had past convictions reversed for making prejudicial arguments during closing. She testified [she] hoped she would have objected if one of those occurred in [Petitioner]'s case.
This Court finds no error or prejudice within trial counsel's representation of [Petitioner] during the prosecution's closing. Regarding the alleged failure to object, there remains in this action the strong presumption that trial counsel rendered
adequate assistance and exercised reasonable professional judgment in his representation of [Petitioner] at all stages of [Petitioner]'s trial. Because [Petitioner] must establish prejudice from counsel's failure to object in order to garner relief, the underlying question before this Court is “whether the solicitor's comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.” “Solicitors are bound to rules of fairness in their closing arguments.” “[I]ts content should stay with the record and reasonable inferences to it.” “The solicitor's closing argument must, of course, be based upon this principle. The argument therefore must be carefully tailored so as not to appeal to the personal bias of the juror nor be calculated to arouse his passion or prejudice.” However, any excerpt of the State's closing exists as “one moment in an extended trial.” Accordingly, a court must conduct an “examination of the entire proceedings” in context.
The undersigned finds the portions of the prosecution's closing argument drawn to this Court's attention at the evidentiary hearing neither inflammatory nor improper based on the remainder of the record. The entirety of the closing argument closely pertained to evidence properly received at trial and later corroborated through [Petitioner]'s own testimony. Insofar as [Petitioner] alleges the State prejudicially referred to the condition of the victims on multiple occasions, this Court finds each reference closely contained to and reasonable inferred from the record of the injuries sustained.
This Court further finds that the allegation of improper burden-shifting is not supported by the record. In that instance, the Solicitor was presenting reasons the jury should not believe the defendant's claim that he had been injured by a shotgun during the incident. The State at that time referenced a variety of evidentiary reasons affecting the credibility of [Petitioner]'s claim. “A solicitor has a right to state his version of the testimony and to comment on the weight to be given such testimony.” The State may generally argue for or against the credibility of any witness so long as the argument is contained to the record and does not include improper vouching. Neither vouching nor burden-shifting appears in this record.
Further, where [Petitioner] alleges that the State prejudicially referenced the condition of the victim's injuries
and veteran status, this Court again finds the State validly identified the victims based upon facts appearing in the record. This Court finds the State did not impermissibly play to the passions or prejudices of the jury by making any more than a fleeting reference to one shooting victim's status as a veteran, and finds that the arguments were permissibly offered in furtherance of the State's requesting the jury to find malice in the acts charged based upon specific facts presented in the testimony. There was no impermissible request by the State to view the evidence from the viewpoint of the victim or to decide the case on passion rather than reason. This Court also notes that trial counsel was not a passive member of the courtroom during the prosecution's closing. She did object when a good faith objection arose.
This Court denies [Petitioner]'s ineffective assistance of trial counsel allegation regarding the failure to object to the prosecution's closing argument, finding [Petitioner] has failed to meet his burden of proving Strickland error and prejudice. The prosecution's closing argument did not leave room for a meritorious objection by trial counsel, and neither deficient performance nor prejudice results.[App. 1081-83, 1097-1100 (last alteration in original) (internal citations omitted).]
Because the PCR court applied the correct legal standard, and because the record fails to demonstrate the court confronted a set of facts that were materially indistinguishable from those considered in a decision of the Supreme Court but arrived at a result different from Supreme Court precedent, the Court concludes the state court's decision was not contrary to applicable Supreme Court precedent. Thus, this Court must analyze ?whether the state court's application of the Strickland standard was unreasonable.” Richter, 562 U.S. at 101.
Contrary to Petitioner's assertion, this Court cannot find that the PCR court's application of Strickland was unreasonable. The PCR court's determination that trial counsel was not deficient is supported by the record. Additionally, a jury is presumed to follow the instructions given by the trial judge. Weeks v. Angelone, 528 U.S. 225, 234 (2000). The trial judge in this case informed the jury that what the attorneys said in opening statements and closing arguments was not evidence on which the jury should base its decision. [App. 63, 782-83.] This Court cannot find the PCR Court's decision was unreasonable application of Strickland, and Petitioner has not alleged or shown that the PCR court's conclusion was the result of unreasonable factual findings. Accordingly, the undersigned recommends that Respondent's motion for summary judgment be granted with respect to the exhausted portion of Ground Fourteen.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Respondent's motion for summary judgment [Doc. 23] be GRANTED IN PART and DENIED IN PART with leave to refile. If the district judge adopts this recommendation, the Court further recommends that Respondent be directed (1) to refile its motion for summary judgment with respect to the Procedurally Defaulted Grounds and (2) to specifically address, as outlined in more detail above, whether Martinez is applicable and, if Martinez is applicable, whether Petitioner can establish cause and prejudice under Martinez, either by meeting § 2254(e)(2)'s requirements for an evidentiary hearing or on the basis of the current state-court record. Finally, the parties should be directed to address only the Procedurally Defaulted Grounds in their supplemental filings.
IT IS SO RECOMMENDED.