Opinion
8:23-cv-00982-DCC-JDA
01-18-2024
Derrick McDonald, Petitioner, v. Warden Tonya James, 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. 21.] Petitioner is a state prisoner seeking relief under 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.
Proceeding pro se, Petitioner filed this action on March 7, 2023. [Doc. 1.] Respondent filed a return and memorandum and motion for summary judgment on July 5, 2023. [Docs. 20; 21.] The next day, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the summary judgment procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 22.] Petitioner's response in opposition was entered on the docket on August 11, 2023. [Doc. 25.] The motion is now ripe for review.
A prisoner's pleading is considered filed at the moment it is delivered to prison authorities for forwarding to the court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Accordingly, this action was filed on March 7, 2023. [Doc. 1-1 at 2 (envelope marked as received by the prison mailroom on March 7, 2023).]
BACKGROUND
Petitioner is confined in the South Carolina Department of Corrections pursuant to orders of commitment of the Kershaw County Clerk of Court. [Doc. 1 at 1, App. 1890. On February 7, 2007, a Kershaw County grand jury returned true-billed indictments against Petitioner for murder and first-degree burglary. [App. 2062-65.] Petitioner, represented by Marcus Whitlark and Nathan Sheldon, was tried by a jury from May 6 through May 9 and May 13, 2008. [App. 186-1690.] The jury convicted Petitioner as charged. [App. 1687.] Petitioner was sentenced to concurrent terms of 35 years' imprisonment on each of the two offenses. [App. 1735-36.] Petitioner's motion for a new trial was argued on September 3, 2008 [App. 1738-68], and denied by the court on September 15, 2008 [see App. 1891].
The Appendix can be found at Docket Entry Numbers 20-1 through 20-5.
Direct Appeal
Petitioner, represented by Robert M. Dudek of the South Carolina Commission on Indigent Defense, appealed to the South Carolina Court of Appeals. [S.App. 1. Counsel raised the following issues:
The Supplemental Appendix can be found at Docket Entry Number 20-6.
1.
Whether the court committed reversible error by allowing into evidence the statements of appellant's nontestifying co-defendant without adequately redacting his claim of appellant's involvement, as this denied appellant his Sixth Amendment right to confront and cross-examine the witness, as interpreted by Bruton v. United States, 391 U.S. 123 (1968), and its progeny?
2.
Whether the court violated appellant's right to confrontation pursuant to Crawford v. Washington, 541 U.S. 36 (2004) by allowing into evidence the statement of appellant's non-testifying co-defendant, where he gave that statement to law enforcement during their investigation of the crime, and appellant never had the opportunity to confront and cross examine his co-defendant?[S.App. 4.]
The Court of Appeals affirmed, concluding that there was no error in the first claimed issue and that the second issue was procedurally barred from review on the merits. [S.App. 47-54.] Petitioner filed a petition for rehearing [S.App. 56-58], which the Court of Appeals denied on November 30, 2012 [S.App. 70]. Still represented by Dudek, Petitioner then filed a petition for writ of certiorari in the Supreme Court of South Carolina, dated March 1, 2013, which raised the following issues:
1.
Whether the Court of Appeals erred by holding the trial court did not commit reversible error by allowing into evidence the statements of petitioner's non-testifying co-defendant without adequately redacting his claim of petitioner's involvement, as this denied petitioner his Sixth Amendment right to confront and cross-examine the witness, as interpreted by Bruton v. United States, 391 U.S. 123 (1968), and its progeny?
2.
Whether the Court of Appeals erred by holding the Crawford v. Washington, 541 U.S. 36 (2004) issue was not preserved since the issue was raised along with Bruton, it involves the same essential principle of confrontation, the lower court ruled Crawford was not violated, and the lower court had violated petitioner's right to confrontation under Crawford by allowing into evidence the statement of petitioner's non-testifying co-defendant, where he gave that statement to law enforcement during their investigation of the crime, it was testimonial, and petitioner never had the opportunity to confront and cross examine his co-defendant?[S.App. 74.]
The Supreme Court granted certiorari as to the first issue but denied as to the second. [S.App. 118.] The Supreme Court eventually affirmed the decision of the Court of Appeals as modified, concluding that the Court of Appeals erred in ruling that Petitioner's Confrontation Clause rights were not violated but that the error was harmless in light of the overwhelming evidence of Petitioner's guilt. [S.App. 170-78.] The Supreme Court issued the remittitur on May 8, 2015. [Doc. 20-7.]
Post-Conviction Relief Proceedings
On May 8, 2015, Petitioner, proceeding pro se, filed an application for postconviction relief (“PCR”). [App. 1769-76.] On September 9, 2015, the State made its return. [App. 1777-82.] On October 12, 2017, Petitioner, represented by Kristy G. Goldberg, filed an amended PCR application. [App. 1784-85.] It presented the following allegations:
(a) Ineffective assistance of counsel for failure to object when the Court analyzed the factual determinations and reached a decision in the Jackson v. Denno hearing using an incorrect burden.
(b) Ineffective assistance of counsel for failure to object when the Court instructed the jury that they would be conducting a “search for the truth.”
(c) Ineffective assistance of counsel for failure to file or argue a Motion to Sever.
(d) Ineffective assistance of counsel for failure to present compelling argument regarding the photographs of Christopher Whitehead's car which was already entered into evidence.
(e) Ineffective assistance of counsel for failure to properly preserve Crawford issues for appellate review during trial.
(f) Ineffective assistance of counsel for failure to sufficiently and effectively argue under Bruton that admission of the co-defendant's statement violated the Applicant's rights under the Confrontation Clause.
(g) Ineffective assistance of counsel for failure to ensure that the Court properly provided a limiting instruction under Bruton and failure to object when the insufficient instruction was given.
(h) Ineffective assistance of counsel for failure to object when the Court allowed the jury during deliberations to review the transcripts of testimony of three trial witnesses.
(i) Ineffective assistance of counsel for failure to ensure that the Applicant was present during all critical stages of trial.
(j) Ineffective assistance of counsel as counsel was ineffective for failing to present evidence before the jury.
(k) The cumulative effect of trial counsel's errors constitute[s] ineffective assistance of counsel.[App. 1784-85.]
An evidentiary hearing was held on December 12, 2017, with Goldberg representing Petitioner. [App. 1787-1888.] Goldberg advised the PCR court that Petitioner would be going forward on the issues from the October 12, 2017, amendment. [App. 1791.] The PCR court received testimony from Petitioner and trial counsel Mr. Whitlark. [App. 1788, 1796-1860.] Goldberg withdrew Issue (d) regarding the photograph of co-defendant Whitehead's car. [App. 1865, 1901.]
By order dated April 2, 2018, the PCR judge initially granted Petitioner relief. [App. 1890-1913.] The State filed a timely motion to reconsider [App. 1914-44], and Petitioner filed a response opposing the motion [App. 1946-49]. After hearing argument on the motion on May 17, 2018 [App. 1950-95], and receiving additional post-hearing memoranda from both parties [App. 1997-2032], the PCR court granted the State's motion, and upon reconsideration, denied and dismissed Petitioner's application with prejudice on February 13, 2019 [App. 2033-61]. Petitioner timely appealed. [Doc. 20-8 at 1.]
Appellate Defender Jessica M. Saxon of the South Carolina Commission on Indigent Defense represented Petitioner in his PCR appeal. [Id.] On October 25, 2019, PCR appellate counsel filed a petition for writ of certiorari in the Supreme Court of South Carolina presenting the following questions:
I.
Did the PCR court err in reversing its original grant of relief by relying on the Supreme Court's holding in Petitioner's direct appeal that there was “overwhelming evidence of guilt” such that prejudice could not be shown where trial counsel failed to file a motion to sever resulting in a violation of Petitioner's constitutional rights?
II.
Did the PCR court err in reversing its original grant of relief by relying on the Supreme Court's holding in Petitioner's direct appeal that there was “overwhelming evidence of guilt” such that prejudice could not be shown where counsel failed to object when the trial judge analyzed the factual determination and reached a decision in the Jackson v. Denno hearing by placing the burden on the defense to prove the invocation of the right to an attorney and that promises of leniency were made?
III.
Did the PCR court err in reversing its original grant of relief by relying on the Supreme Court's holding in Petitioner's direct appeal that there was “overwhelming evidence of guilt”
such that prejudice could be shown where trial counsel failed to introduce evidence before the jury regarding the voluntariness of Petitioner's statement?
IV.
Did the PCR court err in reversing its original grant of relief by relying on the Supreme Court's holding in Petitioner's direct appeal that there was “overwhelming evidence of guilt” such that prejudice could not be shown where counsel failed to object when the trial judge instructed the jury in both its opening remarks and charge on the law that it was to search for the truth?
V.
Did the PCR court err in reversing its original grant of relief by relying on the Supreme Court's holding in Petitioner's direct appeal that there was “overwhelming evidence of guilt” such that prejudice could not be shown where trial counsel failed to object when the trial judge allowed the jury to review the transcripts of testimony of three witnesses during deliberations?[Id. at 4-5 (footnote omitted).]
The State filed its return to the petition on March 19, 2020. [Doc. 20-9.] On April 2, 2020, the appeal was transferred to the South Carolina Court of Appeals for disposition, and, on August 19, 2022, the Court of Appeals denied the petition. [Docs. 20-10; 20-11.]
The remittitur was entered on September 16, 2022, and filed in the Kershaw County Clerk's Office on September 19, 2022. [Doc. 20-12.]
Petition for Writ of Habeas Corpus
Petitioner filed this Petition for writ of habeas corpus on March 7, 2023. [Doc. 1.] Petitioner raises the grounds, stated substantially verbatim below, in his Petition pursuant to 28 U.S.C. § 2254:
GROUND ONE: The PCR court erred in reversing its order to grant Petitioner's PCR due to overwhelming evidence of guilt,
when evidence used to make that determination was not viewed in light of trial counsel's errors.
Supporting facts: This ground is rooted in law so I'll just say that from the final order, it can be plainly seen that Judge Newman disregarded the fact that counsel's failure to impeach evidence that he subsequently listed as overwhelming was reversible and not harmless.
GROUND TWO: The PCR court erred in reversing its order granting relief for counsel's failure to present a defense after acknowledging on the record that counsel's strategy was ineffective, being that it conflicted with Petitioner's interests and was influenced by co-counsel's interests.
Supporting facts: The PCR court stated counsel had an obligation to me, not my co-defendants, when deciding if I was to testify or not. Especially after telling the jury he would be doing just that.
GROUND THREE: The PCR court erred in adopting an order that went against initial order, which stated counsel was deficient in all issues raised when an email from the PCR counsel's clerk stated to the Attorney General that the PCR judge changed his mind on deficiency pertaining to the Jackson v. Denno hearing.
Supporting facts: December 2019, Mrs. Goldberg sent me a thread of emails from the PCR court's clerk to the Attorney General explaining Judge Newman's new mind on Petitioner's claims. In the emails, she directly states what was to be in the order. When the signed order came, it didn't match what the email said.
GROUND FOUR: The PCR court erred in reversing cumulative error issue when all issues presented are so intertwined that a reasonable person will conclude the sum of the errors left the trial fundamentally unfair.
Supporting facts: From the Jackson v. Denno hearing, to the confrontation issues and Bruton issues, to the failure to present a defense and Gulledge issue, all of the PCR issues interweave in such prejudicial harmony that I absolutely had no chance to defend myself against the indictments against me.[Doc. 1 at 5, 7, 8, 10 (footnote added).]
Although Ground Three references “PCR counsel's clerk,” it appears that Petitioner actually meant to refer to the PCR court's clerk. [See, e.g., Doc. 1 at 8 (referring to the “PCR court's clerk” in the statement of facts supporting Ground Three).]
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 13 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.
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
Under the AEDPA, a federal court may not grant relief unless the underlying state court decision was contrary to or an unreasonable application of federal law, as determined by the United States Supreme Court, 28 U.S.C. § 2254(d)(1), or based on an unreasonable determination of the facts before the court, id. § 2254(d)(2). The Supreme Court has held the “contrary to” and “unreasonable application of” clauses present two different avenues for relief. Williams, 529 U.S. at 405. The Court stated there are two instances when a state court decision will be contrary to Supreme Court precedent:
A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases.... A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.Id. at 405-06. Additionally, a state court decision is an unreasonable application of Supreme Court precedent when the decision “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.” Id. at 407-08; see also Richter, 562 U.S. at 102 (“Under § 2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.... It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.”). Finally, a decision cannot be contrary to or an unreasonable application of Supreme Court precedent unless applicable Supreme Court precedent exists; without applicable Supreme Court precedent, there is no habeas relief for petitioners. Virsnieks v. Smith, 521 F.3d 707, 716 (7th Cir. 2008); see Bustos v. White, 521 F.3d 321, 325 (4th Cir. 2008).
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 One
Ground One asserts that the PCR court, in finding no Strickland prejudice because the evidence of guilt was overwhelming and compelling, erroneously considered evidence that came in as a result of trial counsel's deficient representation. [Doc. 1 at 5.] However, regardless of whether it would be error to consider evidence that came in as a result of deficient representation, there is no indication that the PCR court did that here. Indeed, the PCR court, on reconsideration, did not find any deficiencies in trial counsel's representation. [App. 2059-60.] The Court therefore cannot find that the PCR Court's decision was “contrary to or an unreasonable application of federal law.”
Indeed, Petitioner does not argue, with regard to Ground One or any of his other grounds, how he has satisfied the AEDPA standard.
For this reason, the Court recommends that Respondent's summary judgment motion be granted as to Ground One.
Ground Two
Ground Two alleges that the PCR court's rejection of Petitioner's claim that trial counsel was ineffective for failure to present a defense was erroneous in light of statements that were supportive of this ineffectiveness claim that the PCR court had made earlier in the PCR proceedings. [Doc. 1 at 7.] In spite of the statements the PCR court had made earlier that were supportive of the claim, the PCR court, on reconsideration, found that trial counsel's decision not to present a defense was a strategic one and not constitutionally deficient. [App. 2059.] The PCR court also found that, in any event, Petitioner could not establish prejudice from the decision not to present a defense because of the “overwhelming and compelling evidence of [Petitioner's] guilt.” [App. 2059.]
At the PCR hearing, trial counsel testified that, once Petitioner's directed motion was denied, one “extremely important” reason that no evidence was presented was to preserve the right to make the last closing argument. [App. 1839-40]; see State v. Beaty, 813 S.E.2d 502, 510-11 (S.C. 2018) (“[I]n cases in which no defendant introduces evidence, the defendant(s) have the right to open and close, but may waive the right to both or may waive opening and present full argument after the State's closing argument.... [I]f two or more defendants are jointly tried, if any one defendant introduces evidence, the State has the final closing argument.”).
The PCR court's denial of Petitioner's ineffective assistance claim on reconsideration was neither contrary to nor an unreasonable application of applicable Supreme Court precedent. First, the court applied the Strickland standard, which is the applicable Supreme Court precedent. Second, the record fails to demonstrate that the PCR 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. Thus, the Court concludes the state court's decision was not contrary to applicable Supreme Court precedent.
To the extent that Ground Two asserts that the PCR court erred in not giving proper weight to the prior statements and rulings that the PCR court had made that were supportive of Petitioner's claim, that claim is not cognizable on federal habeas review. As Respondent notes [Doc. 20 at 19], “[t]he federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner's conviction; what occurred in the Petitioner's collateral proceedings does not enter into the habeas calculations.” Bowen v. Williams, No. 1:18-620-HMH-SVH, 2018 WL 7204072, at *10 (D.S.C. Nov. 26, 2018), Report and Recommendation adopted by 2019 WL 125945 (D.S.C. Jan. 7, 2019).
The undersigned concludes that the fairminded jurists could agree with the PCR court's determination that counsel did not fall below professional norms in deciding that the best strategy for Petitioner would be to not present Petitioner or any other witnesses. See Strickland, 466 U.S. at 689 (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because 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; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.' There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” (internal citation omitted)). Additionally, given the overwhelming and compelling evidence that the PCR court referenced, fairminded jurists could also agree with the PCR court's determination that the decision not to present a case in defense, even if deficient, was not prejudicial. For both of these reasons, the undersigned recommends that summary judgment be granted to Respondent regarding Ground Two.
Ground Three
Ground Three asserts that the PCR judge erred in adopting an order that was at odds with both his original order and an email from the PCR judge's clerk informing the parties of the PCR judge's intended ruling regarding the motion for reconsideration. [Doc. 1 at 8; see also Doc. 25 at 1-3.] As Respondent notes [Doc. 20 at 19], however, “[t]he federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner's conviction; what occurred in the Petitioner's collateral proceedings does not enter into the habeas calculations.” Bowen v. Williams, No. 1:18-620-HMH-SVH, 2018 WL 7204072, at *10 (D.S.C. Nov. 26, 2018), Report and Recommendation adopted by 2019 WL 125945 22 (D.S.C. Jan. 7, 2019). Accordingly, this claim concerning whether the PCR judge erred in making rulings on a motion for reconsideration that deviated from earlier rulings and statements that the judge made during the PCR proceeding is not cognizable on federal habeas review. See Bryant v. State of Md., 848 F.2d 492, 493 (4th Cir. 1988) (“[C]laims of error occurring in a state post-conviction proceeding cannot serve as a basis for federal habeas corpus relief.”).
For this reason, the Court recommends granting Respondent's summary judgment motion as to Ground Three.
Ground Four
Ground Four alleges that the PCR court failed to consider the cumulative effect of all of trial counsel's constitutional deficiencies in undertaking its Strickland prejudice analysis. [Doc. 1 at 10]
Because that claim was not raised on appeal of the PCR court's decision [Doc. 20-8 at 4-5], it is procedurally defaulted. See Matthews, 105 F.3d at 911. Additionally, were the claim not procedurally defaulted, it would fail on its merits. That is so because claims of ineffective assistance of counsel must be reviewed individually, not collectively. Fisher v. Angelone, 163 F.3d 835, 852 (4th Cir. 1998). Because the PCR court found that trial counsel did not provide ineffective assistance of counsel, a cumulative error analysis would not be proper under federal law. See United States v. Russell, 34 Fed.Appx. 927, 927 (4th Cir. 2002) (“Fisher . . . held that it is not appropriate to consider the cumulative effect of attorney error when the individual claims of ineffective assistance do not violate the defendant's constitutional rights.”).
In sum, for these reasons, the Court recommends granting Respondent's motion for summary judgment as to Ground Four.
In his response opposing summary judgment, Petitioner appears to seek leave to amend his Petition so that it raises all of “those issues that are procedurally proper and preserved for review. [Doc. 25 at 1; see id. at 2-3.] He states his “Amended issues” as follows:
a. [Petitioner] was subjected to ineffective assistance of trial counsel, and that ineffectiveness is shown by a web of legal propositions Petitioner believes he can once again show to a court if given the chance to speak for himself.
i. Counsel failed to object to an incorrect burden analysis when [the trial court] reached its decision in the [Jackson v. Denno hearing].
ii. Counsel was ineffective when failing to object to the “search for the truth” language used by [the trial court] to the [jury].
iii. Counsel failed to file motion to sever.
iv. Counsel failed to properly preserve [Crawford] violations for direct appeal, thwarting due process.
v. Counsel failed to adequately explain that under Bruton violations, admission of co-defendant's alleged statements violates Petitioner's confrontation rights.
vi. Counsel failed to protect [Petitioner's] right to be at every critical stage of the [trial], once again thwarting Petitioner's due process.
vii. The critical stage stated in issue “vi”, was a hearing where he allowed the transcripts of witness testimony that alleged petitioner gave a confession, when the legal and reasonable thing would be to replay the full testimony during deliberations.
Viii. Counsel erroneously persuaded Petitioner not to testify or present the defense he was led to believe they “prepared,” because of the counsel of his codefendants' suggestions, who have a totally different interest than that of [Petitioner].
viv. Petitioner holds that not only does the [cumulative] effect of trial [counsel's] errors show his ineffectiveness, he also holds that this case is unique and one of a kind. Had counsel presented the witnesses Petitioner presented at the [Jackson v. Denno] hearing, maybe the jury would have looked at the “somewhat troubling” testimony presented, which was characterized that [way] by [the] trial court, and give a different verdict. Besides the alleged confession, there is no other evidence point to petitioner in any way. If you look at the issues presented in the light of the evidence presented at trial, there's no other way to look at it and not see extreme prejudice.
[b.] Petitioner doesn't know how to state his claim but submits that the complete analytical 180° turn [the] PCR court took from not only [its] initial order granting petitioner's PCR, but also what [the PCR judge's] clerk said his ruling was. Petitioner submits his theory of how this could have occurred.
i. [The] Attorney General['s] office sent a proposed order contrary to what PCR clerk said and PCR court signed in good faith, making their office ultimately responsible for the “PCR court never ruled there were errors” comment in respondent's order . . . which is their office again.[Id. at 2-3 (final alteration in original).] “To the extent that Petitioner intends to raise new claims of ineffective assistance of counsel, those arguments were not raised in the petition and will not be considered by this court.” Bowman v. James, No. 8:21-cv-00995-HMH-JDA, 2022 WL 1721243, at *16 n.9 (D.S.C. May 9, 2022) (alterations and internal quotation marks omitted), Report and Recommendation adopted by 2022 WL 1720984 (D.S.C. May 27, 2022), appeal dismissed, 2023 WL 333999 (4th Cir. Jan. 20, 2023); see Temple v. Oconee Cnty., No. 6:13-144-JFA-KFM, 2014 WL 4417702, at *13 (D.S.C. Sept. 8, 2014) (holding that new claims cannot be raised in response to a summary judgment motion).
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Respondent's motion for summary judgment [Doc. 21] be GRANTED and that the Petition be DENIED.
Because the Court concludes Respondent is entitled to summary judgment on the grounds discussed, the Court declines to address Respondent's alternative arguments.