McGee v. Warden of Lieber Corr. Inst.

Full title: Frankie Lee McGee, Petitioner, v. Warden of Lieber Correctional…

Court: United States District Court, D. South Carolina

Date published: Jul 15, 2022

C. A. 5:21-2777-RMG-KDW (D.S.C. Jul. 15, 2022)

Opinion

C. A. 5:21-2777-RMG-KDW

07-15-2022

Frankie Lee McGee, Petitioner, v. Warden of Lieber Correctional Institution, Respondent.

Kaymani D. West United States Magistrate Judge

REPORT AND RECOMMENDATION

Kaymani D. West United States Magistrate Judge

Frankie Lee McGee (“Petitioner”) is a state inmate who filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 26, 27. On January 25, 2022, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 28. On February 3, 2022, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment, ECF No. 31, and Respondent filed a Reply to Petitioner's Response on February 10, 2022. ECF No. 36.

Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 27, be granted, and this Petition be denied.

I. Background

The South Carolina Court of Appeals (“Court of Appeals”) summarized the facts of this case as follows:

On the night of May 3, 2009, Temika Ashford was visiting Reverend Tryon Eichelberger at his home in Columbia. They heard a noise in another part of the

home, and Eichelberger went to investigate. Ashford heard Eichelberger ask, “[H]ow did you get in here?” and then a “commotion” and “hollering.” Because Ashford was afraid, she left the home, got in her car, and drove away. She drove around the block, and when she could not reach Eichelberger by phone, she returned to his house. She saw a husky man with a potbelly and receding hairline standing on the porch. He was dressed in a white shirt and jeans, wearing white gloves, and holding a metal pipe. She called 911, left the house, and drove down Farrow Road to wait on the police. While she was waiting, she noticed the man she had seen on the porch walking along the road, no longer carrying the pipe nor wearing the gloves. Once the police arrived at the home, Ashford returned there.

Officer Chauncey Duckett of the Columbia Police Department was dispatched to the scene. On his way there, while traveling on Farrow Road, he saw a light-skinned black man walking, wearing a white or light gray t-shirt and jeans. Once at the scene, he found Eichelberger lying on the floor bleeding heavily. Eichelberger's skull was cracked, he had a brain injury, and he lost a lot of blood. He died three months later as a result of his injuries. The police determined a metal tool had been used to pry open a side door to Eichelberger's home. Officer Duckett found a steel rod across the street from Eichelberger's home, in Larry Harp's yard. Officer Duckett also found a pair of white tube socks next to a light pole about twenty-five to thirty yards from the steel rod in the direction of Farrow Road. The socks and rod had blood on them. DNA analysis initially identified the blood on the items as Eichelberger's. Further testing revealed McGee's DNA inside the socks as well. The rod was consistent with the tool marks found at Eichelberger's home.

On the day of the attack, Harp saw a man he later identified as McGee in Eichelberger's yard at 3:00 p.m., talking on the phone and pacing. He saw him again in the yard at about 5:30 p.m. with a plate, napkin, and cup in his hand and eating, while Eichelberger worked in his garden. Harp testified McGee was wearing an athletic jersey and denim shorts and had a medium heavy build and light brown skin. Around midnight on the night of the attack, the police woke Harp because they discovered the rod in his yard. Harp informed the police the rod was not his and he did not know how it got there. The police later determined the rod was a winch rod, which is commonly used to tighten straps on a flatbed trailer.

After Ashford gave the police a description of the man she observed on the front porch, the police began looking for the suspect. Police found two men walking together, and one of them matched the description Ashford had given. Ashford said the man looked like the person she saw but he was not wearing the same clothes. However, the man was eliminated as the perpetrator through more police investigation and DNA testing. Later, Ashford was shown a series of photographic line-ups. In them, she saw two pictures she believed looked like the suspect; one of the two pictures was of McGee. She identified McGee's picture as the one that most resembled the man she saw on Eichelberger's porch.

In March 2010, officers visited Michelle Perry, who was a dispatcher with the cab company at which Eichelberger had worked. Eichelberger held church services in a building attached to the cab company's office. Officers showed Perry a picture of McGee and asked if she recognized him. She told them she had seen him two different times about a year before Eichelberger was attacked. The first time she saw him, he came to one of Eichelberger's church services too early one morning and waited about twenty-five minutes outside the office. She saw him again a few days later when he returned for a Bible study.

On May 2, 2009, the day before Eichelberger was attacked, a red Peterbilt tractortrailer truck was stolen from a business in Camden, where McGee lived. The truck was found the following day about one mile from Eichelberger's home. The theft was recorded by video surveillance, which was later broadcast on local news programs. Officer Sandra Thomas of the Columbia Police Department, McGee's sister, saw the video, recognized McGee, and contacted Crime Stoppers' anonymous tip line. The owner of the truck testified it was used to haul a flatbed trailer and would have contained a winch bar in its tool box.¹ Police learned McGee had a commercial license to operate a tractor trailer that could pull a flatbed trailer, like the one stolen.

On March 17, 2010, officers interrogated McGee while he was incarcerated on an unrelated offense. McGee denied attacking Eichelberger but admitted he had been in that area of Columbia that night. He also said he had gone by Eichelberger's house that day and been on the porch of the house. He told the police that due to an athlete's foot condition, he had taken his socks off while in the area and left them by a dumpster at a store. He then said he left the socks by a light pole. McGee denied stealing the truck from Camden but said he moved a red Mack tractor-trailer truck while in Columbia. McGee told police he did not know what a winch rod was. He also admitted he had told his wife that after a drug dealer pointed a pistol at him, he hit the drug dealer with it on the night of Eichelberger's attack. The police were unable to locate the drug dealer McGee said that he hit.

¹An inventory was never performed to determine if the winch rod was missing from the truck.

² Peterbilt and Mack are both makers of trucks that are used to pull tractor trailers.

App. 1393-95.^[1]

1 Citations to “App.” refer to the Appendix for Petitioner's trial transcript and Post-Conviction Relief (“PCR”) Proceedings. The appendix is available at ECF Nos. 26-1 through 26-10 in this habeas matter.

Petitioner is currently incarcerated at the Lieber Correctional Institution of the South Carolina Department of Corrections. ECF No. 1 at 1. He was indicted at the April 2010 term of the Richland County Grand Jury for murder and first degree burglary. App. 1607-1610. Petitioner proceeded to a jury trial on August 1-3, 8-10, 2011, before the Honorable Clifton Newman, Circuit Court Judge. App. 27 et. seq. The State was represented by Assistant Solicitors Kathryn Luck Campbell, Dolly J. Garfield, and Nicole Simpson, and Douglas Strickler, Esq., Fielding Pringle, Esq., and Jennifer Davis, Esq. represented Petitioner. App. 27. The jury found Petitioner guilty of murder and first degree burglary. App. 1395. Judge Newman sentenced Petitioner to 30-years imprisonment on the burglary charge and life imprisonment for murder. App. 1318.

Petitioner appealed his convictions and sentences to the Court of Appeals. On appeal, Petitioner was represented by Appellate Defender Kathrine H. Hudgins, Esq. of the South Carolina Commission on Indigent Defense, Division of Appellate Defense. App. 1320-36. Petitioner filed a Final Brief of Appellant raising the following issues:

1. Did the trial judge err in admitting identification testimony based on a single photo line-up that was unduly suggestive and inherently unreliable?

2. Did the trial judge err in admitting evidence in regard to the theft of a truck in Camden when the theft does not meet an exception pursuant to Rule 404(b) and is not sufficiently linked to the charged crime to constitute res gestae?

App. 1323. Attorney Hudgins filed an Amended Final Brief on September 9, 2013, raising additional legal arguments. App. 1339-55.

The Court of Appeals issued a decision affirming Petitioner's conviction on April 13, 2014. App. 1392-99. Attorney Hudgins filed a petition for rehearing that the Court of Appeals denied on June 19, 2014. App. 1400-1402, 1404. Attorney Hudgins filed a Petition for Writ of Certiorari raising the following issue:

Did the Court of Appeals err in refusing to find that the trial judge erred in admitting

identification testimony based on a single photo line-up that was unduly suggestive and inherently unreliable?

App. 1408. On December 4, 2014, the South Carolina Supreme Court denied the petition. App. 1446.

Petitioner filed an application for Post-Conviction Relief (“PCR”) on May 18, 2014. App. 1447-54. Petitioner asserted he was being held in custody unlawfully due to ineffective assistance of trial counsel. App. 1449-51. The State filed a Return and Motion to Dismiss Without Prejudice on June 9, 2014. App. 1456-57. The court issued an order of dismissal without prejudice on June 11, 2014, finding the PCR was premature because Petitioner's direct appeal was still pending. App. 1459-60. Petitioner filed a second PCR application on January 13, 2015, raising ineffective assistance of trial counsel claims. App. 1461-85. The State filed a Return on June 11, 2015. App. 1488-92. Petitioner filed an amended PCR application on November 2, 2015, raising additional ineffective assistance of trial counsel and ineffective assistance of appellate counsel claims. App. 1494-95.

A PCR motion hearing convened on August 30, 2017, before the Honorable Paul M. Burch. App. 1497-1561. Petitioner was present and represented by Attorney Anna Rawl Browder, Esquire, and Assistant Attorney General Jessica E. Kinard, Esquire, appeared on behalf of the State. See id. Petitioner, his trial counsels Douglas Strickler and Fielding Pringle, and his appellate counsel Katherine Hudgins appeared and testified at the hearing. Id. The PCR court denied and dismissed Petitioner's PCR Application with prejudice in an order filed on November 19, 2018. App. 1563-1605. Petitioner appealed the dismissal of his PCR application and Appellate Defender Taylor D Gilliam, of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, represented Petitioner on appeal. ECF No. 26-11. Attorney Gilliam filed a Johnson ^{2 2}petition for writ of certiorari in the South Carolina Supreme Court on May 15, 2019, raising the following issue:

2 Johnson v. State, 364 S.E.2d 201 (S.C. 1988) (applying the factors of Anders v. California, 386 U.S. 738 (1967), to post-conviction appeals). Anders requires that counsel who seeks to withdraw after finding the “case to be wholly frivolous” following a “conscientious examination” must submit a brief referencing anything in the record that arguably could support an appeal, furnish a copy of that brief to the defendant, and after providing the defendant with an opportunity to respond, the reviewing court must conduct a full examination of the proceedings to determine if further review is merited. Anders, 386 U.S. at 744.

2 Where there is an issue as to whether or not an out-of-court identification was suggestive, or whether an in-court identification by a witness is of independent origin based upon a witness' observations, a defendant is entitled to an in camera hearing to determine the admissibility of such identification. Neil v. Biggers, supra; State v. Simmons, 308 S.C. 80, 417 S.E.2d 92 (1992); State v. Williams, 258 S.C. 482, 189 S.E.2d 299 (1972); State v. Cash, 257 S.C. 249, 185 S.E.2d 525 (1971); State v. Cheatham, 349 S.C. 101, 117, 561 S.E.2d 618, 627 (Ct. App. 2002); State v. Smith, 336 S.C. 39, 518 S.E.2d 294 (Ct. App. 1999); Rule 104(c), SCRE. Questions regarding admissibility of identification evidence is left to the sound discretion of the trial judge and will not be disturbed on appeal absent a showing of abuse of discretion. State v. Patterson, 337 S.C. 215, 522 S.E.2d 845 (Ct. App. 1999).

Whether the PCR court erred in denying relief, where trial counsel failed to object to the assistant solicitor's improper remark during closing argument, where the solicitor argued that Petitioner wielded the murder weapon, a steel rod, like a baseball bat?

Id. at 3. Attorney Gilliam asserted the petition was without legal merit to warrant a new trial and requested permission to withdraw from further representation. Id. at 12. Petitioner filed a pro se response on June 7, 2019, in which he alleged prosecutorial misconduct and he claims he is actually innocent of the murder and burglary charges. ECF No. 26-12. Th South Carolina Supreme Court transferred the petition to the Court of Appeals which denied the Petition for Writ of Certiorari on August 6, 2021. ECF No. 26-13. The Remittitur was issued on August 27, 2021. ECF No. 26-14. This Petition followed on August 27, 2021. ECF No. 1.

II. Discussion

A. Federal Habeas Issues

Petitioner raises the following issues in his Federal Petition for a Writ of Habeas Corpus: Ground One: D.N.A. unlawful extracting procedures used 1 year latter on socks.

Supporting Facts: Frankie McGee was not present at victim residence neither in the neighborhood on the night of the incident no one identified the Defendant that night or that year of incident no D,N,A from Defendant at victim house inside neither outside no D,N,A from Defendant on the object used No one was seen in house. The Defendant F, McGee was never given a chance to explain the facts which caused a wrongful arrest and a conviction. The witness at victim house positivily identified (David Williams) in a show up procedure the same night as suspect at victim house with object in his hands.

FIRST ATTACHMENT:

1. Applicant was denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendment of the U.S. Constitution and South Carolina Laws and as a result was prejudiced when counsel failed to object to all the inadmissible evidence introduction before and during trial in the presence of the jury.

2. Trial counsel failed to enter an objection when the Solicitor introduced inadmissible evidence during trial against Applicant.

(a) A stolen truck found parked at a towing impound yard - 1 mile away from the victim's home.

(b) A metal bar found across the road away from the victim's house in the neighbor's back yard inside a fenced area on the ground in the grass.

(c) Applicant was not seen or identified as a suspect by anyone on the night the incident happen or the year and no D.N.A. from the Applicant was on the object neither at the victim's house or property.

(d) A pair of socks found on the ground across the road on a foot path in a field.

(e) During trial, counsel withheld evidence from the jury- a recorded interview on the witness at the victim's house when the incident happen 3 days later at the police department she said she did not see no one inside or outside the victim's house neither did she see anyone who committed the crime at the victim's house. She also said in the recorded interview it was dark and she did not see the person's face in the victim's yard. That night she said she only saw white plastic gloves.

(f) Counsel withheld evidence from the jury concerning a recorded interview on other suspects that told the police who had committed the crime and where to find the evidence used in the crime and also who had it.

(g) Counsel failed to object to the inconsistent statements from the witness stand during trial. The incident happened on (May 3, 2009) (11:40 p.m.) the witness (Tamika Ashford) said in a police report the person she saw in the victim's yard that night at (11:45 pm) was wearing a white shirt and blue jeans during trial on stand she testified and said the suspect in the victim's yard was wearing khakis -inconsistent statements- about clothing during trial.

(h) Counsel failed to object to the erroneous statements during trial from the prosecutor to the jury speculating on what happened, when she was not present at the crime-scene when it happened, misleading the jury.

(i) Counsel failed to object to the statements from Investigator Thomas while on the stand for committing perjury about where the socks were found. The Columbia Police Dept. Incident Report on (5-3-09) indicated that the pictures taken of the socks when found were across the road in a vacant field on the ground next to an abandoned yellow house. During trial Investigator Thomas lied on the stand and said the socks were found next to a light pole. He committed perjury. Neither was Investigator Thomas present at the crime scene that night. SLED incident reports he was not present.

(j) Counsel failed to object to the prosecutor using a secretly hidden tape recorder. During the interrogation of the Applicant 11 months after the incident happened, the Applicant did not know he was being secretly recorded against his will. Also during trial it was proven the tape recorder was being turned on and off only recording parts of the interrogation of Applicant.

(k) Counsel failed to object to Investigator Reese committing perjury during trial. Investigator Reese lied and said he and Investigator Thomas was on the crime scene at the victim's house for hours on the night the incident happened on (5-5-09) at 11:45 p.m. The Columbia Police Incident Reports that Reese was at the crime scene for 4 minutes and left. Officer Thomas was not at the crime scene until the next day. Perjury on stand during the trial.

(l) During trial, Tameka Ashford, the witness at the victim's house, testified she did not see the burglary and she did not see the assault on the victim. She only heard a noise then she ran down the street to her car. She said she did not see no-one in the house or outside the house when she left. And ran to her car down the street on a side road.

(m) The witness (Tameka Ashford) (5-3-09) lied to uniform police at the crime scene minutes after the incident happened. She said that she was not inside the victim's house when the incident happened. False statements to Police. She was there to have sex for money. The witness (Tameka Ashford) did positively identify (David Williams) as the suspect she saw in the victim's yard wearing blue jeans and a white shirt with white plastic gloves on his hands with a long stick or pipe. She also took a sworn oath to tell the truth and wrote a 2 page handwritten statement in detail and she said it was him she saw (David Williams). He was also arrested by the Columbia Police Department the same night matching clothes description the arresting officer testified on the stand to the police reports.

(n) Applicant did not commit this crime. Neither was he present in the area or neighborhood when the incident happened on (5-3-09) at (11:45 p.m.). Wrongful conviction.

(o) During trial, Investigator Reese while on the stand under oath reviewed by reading handwritten statements from the witness at the scene of the crime minutes after the incident happened. She wrote the person she positively identified as the suspect in the victim's yard wearing blue jeans and a white shirt with white plastic or rubber gloves on his hands holding a long object in his hands was arrested the same night by the Columbia Police Department after he ran home and was found hiding in the closet. She said he was wearing different clothes but it was him. His name is (David Williams). The other suspect walking with him was never identified or arrested. Inside the victim's house on the floor was a bloody shoe print. The police don't know who it belongs to. No clothing was taken from the suspect's home to be tested for D.N.A. He was found hiding at home.

3. During trial, counsel withheld evidence from the jury concerning the stolen truck from Camden, S.C.

a. The owner testified during trial that when he received the truck back nothing was reported missing inside or outside the truck. The initials on the metal bar did not belong to anyone at the company where the truck came from. Camden Police Dept. did not charge Applicant with a truck theft. Columbia Police Dept. did not charge Applicant with a truck theft. Applicant's D.N.A. was not on or in the truck when found parked at the towing company impound yard office. No one was seen in or around the truck when found in Columbia at the towing impound yard office. The police reports indicate Applicant was already in Columbia at the metal recycling plant on the same day before the truck was stolen from Camden, S.C., 1 and 1/2 hours away from Columbia, S.C.

4. During trial, counsel failed to object to the metal bar that was used against Applicant.

a. The Columbia Police Dept. Incident Report on (5-3-09) indicates the only person positively identified by the witness at the scene (Tamika Ashford) was (David Williams). In a handwritten statement after she swore to tell the truth she positively identified (David Williams) that night as the suspect in the victim's yard that night at 11:45 p.m. with a long metal object in his hands wearing white plastic or rubber gloves on his hands. He was also arrested based on the clothing description given to the police from the “911” call. Also the “911” call was lost before trial started. Applicant was not identified or seen in that neighborhood the night of the incident neither that year it happened. The uniform police testified on the stand that David Williams was wearing a white shirt and blue jeans or dark pants when he foot chased him home.

5. During trial, counsel failed to object to the prosecution's opening statement speculating about what happened when she was not present at the crime scene that night the incident happened. There was no police incident report and no witness to testify on the stand to prove the allegations said by the prosecutor during trial misleading the jury with false statements in opening and closing statements about what happened at the incident on (5-309) at the victim's house.

6. Counsel failed to advise the judge before trial that the Columbia Police Dept. Investigators interrogated Applicant and charged Applicant with a warrant dated May 6, 2009. Applicant was also transported from S.C.D.C. to the Richland County Detention Center on the same wrong warrant. The burglary and assault happened in Columbia on May 3, 2009-Sunday. Applicant was served with a warrant dated May 6, 2009-Wed.

7. During trial, counsel failed to advise the judge that on a capital murder charge the investigator must serve the suspect with the correct warrant properly dated. Columbia Police Dept. Investigators did not serve Mr. McGee with the correct warrant before nor during trial. Applicant was charged and convicted and sentenced to prison on the wrong warrant indicating the incident happened on (May 6, 2009-Wed.). Also the interrogation was concerning what happened on May 6, 2009-Wed. The burglary and assault happened on (May 3, 2009-Sunday).

8. Before trial, the prosecutor instructed the judge that the only witness at the crime scene the night of the incident will not be able to do any kind of in-court identification of Applicant. Also, she had already positively identified a suspect the same night at the crime scene minutes after the incident happened.

9. Interrogation of Applicant. The incident at the victim's house happened on May 3, 2009 in Columbia, SC On March, 2010, 3 Columbia Police Dept. Investigators interrogated Applicant while incarcerated on an unrelated charge in prison at Wateree River Correctional in Sumter County, SC During this interrogation, Investigator Kevin Reese forged Applicant's name on the Miranda rights papers because Applicant refused to sign any papers. Also, Investigator Reese threatened to physically assault Applicant by punching his fist into the chair and table close to Applicant's face and head. Also, Reese asked Applicant to shake hands with him. While doing so, Reese squeezed Applicant's hand and twisted his arm and Reese started shouting at Applicant, confess, confess. The 2 hidden tape recorders was also turned on and off with a remote control during the interrogation.

10. Interrogation of Applicant- Columbia Police Dept. Investigators interrogated Applicant on March, 2010, 11 months after the incident happened. The investigators secretly recorded the interrogation without Applicant knowing he was being recorded. They used 2 digital remote control tape recorders. Also it was proven during trial the hidden tape recorders were being turned on and off during the interrogation only to record parts of the interrogation. Also, during the interrogation, Investigator Reese threatened to have Applicant killed while in prison.

11. Investigator Reese called S.C.D.C. to have Mr. McGee put on solitary confinement 3-days before the interrogation. No food, no water, no mental health medicine, no blanket. Mr. McGee was threatened and forced to talk to the investigator by S.C.D.C. officers.

12. Counsel failed to object to 4 witnesses on the stand during trial.

a. Tamika Ashford testified that she did not see anyone inside or outside the victim's house during the burglary or the assault. She only heard a commotion and noise. She also positively identified a suspect the same night minutes after the incident happened and she wrote statements of truth on him in detail his name was David Williams. He was wearing blue jeans and a white shirt.

b. Larry Harp, the next door neighbor, testified he saw Applicant at the victim's house at 3:30 and 5:30 the same day talking to the victim in his yard. Applicant was wearing a football jersey and denim shorts with a plate of food in 1 hand and a cup in the other. He testified that after Mr. McGee left then he went over to talk to the victim and nothing was wrong. The incident happened at the victim's house at 11:45 p.m. The witness, Larry Harp, testified he did not see no one at the victim's house that night at 11:45 p.m.

c. Ivan Moore testified on the stand to say he saw the Defendant Mr. McGee in the neighborhood the month of the incident. He lives two miles away from the victim and he did not see the Defendant at the victim's house neither did he see the Defendant the night of the incident. Ivan Moore has seven convictions of drugs and guns. He also has seven more charges pending for court trial. Before he testified on the stand against Defendant for the prosecutor.

d. Michelle Perry testified on the stand to say she saw the Defendant attend church with the victim 3-months before the incident happened. The police showed her a single photo of the Defendant for identification purposes. She testified that she had never been in that church and the photo of the Defendant was a mug-shot picture of the Defendant. She said she had never seen the Defendant at the victim's house. She works next door to the church. No one attends the church. Cannot identify the Defendant- as being at the church. The witness did not see the Defendant the month of the incident. She said she saw the Defendant three-months before the incident happened.

13. Counsel failed to object- During trial, there were no witnesses and no police incident reports to say Applicant committed any crime. No one testified during trial to say Applicant was at the victim's house that night when the incident happened at 11:45 p.m. The witness, Tamika Ashford, did positively identify a suspect named David Williams, minutes after the incident happened at the victim's house. She also wrote a 2 page statement of truth in detail. She said it was him. Also a description of suspect (6 ft, l”-Tall 180 or 200 lbs) white shirt and blue jeans wearing white plastic gloves on hands. She testified she did not see the face or could not see the face because it was real real dark and no lights to see.

14. Applicant is 5 ft 8” and 230 lbs. Neither was Applicant identified that night or that year of the incident as committing any crime.

15. During trial, the witness Tamika Ashford testified that the person in the victim's yard that night at 11:45 p.m. was wearing khakis and she did not see his face or could not see a face. It was “real real” dark and no street lights on.

16. Counsel failed to object the D.N.A. extracting procedure used on the socks found across the road in a field on a foot path near an abandoned house 1 street over from the victim's residence. No one was seen with or using any socks that night. Also the D.N.A. expert testified 3 people's D.N.A. was on the socks. Also, David Williams, a suspect positively identified and arrested the same night after he ran from the police on scene, his DNA is on the socks and the witness Tamika Ashford positively identified him as the suspect in the victim's yard that night and she wrote a 2 page statement in detail and said that he was the person she saw that night in the yard.

17. Counsel failed to object to the touch DNA extracting procedures used to extract DNA from the socks found on the ground across the road in a field. The first DNA test for touch DNA was negative on the Applicant. This was May of 2009. 11 months later (3-12-10) a procedure was used to extract touch DNA when the protocol manual for extracting procedures does not list the procedure used for obtaining touch DNA. There is no manual listed for extracting touch DNA. Also expert testified 3 people's touch DNA was present on the socks including a suspect named David Williams. He was also positively identified by the witness Tamika Ashford the same night minutes after the incident happened at the victim's house. He was also arrested that same night by the uniform police in the neighborhood funning from the police on the crime scene. Minutes after the incident happened.

18. Counsel failed to object to the prosecutor using the Clerk of Court from Kershaw County to testify on the stand in Richland County concerning Applicant's pleading guilty to a Burglary 2^nd and 3^rd in Kershaw County 2 years prior before he was charged with Burglary 1^st in Columbia, Richland County. Applicant did not testify at trial. Also, the burglary 2^ndand 3^rd Applicant pleaded guilty to in Kershaw County years before he was charged with the burglary 1^st in Richland County were not connected in no way.

19. No one was seen burglarizing the victims' house. No one was seen inside or outside at the time of the incident. Applicant's DNA is not inside or outside the victim's house. Applicant's DNA is not on the object used in the crime. Applicant was not identified by anyone that year. Also the witness at the crime scene, Tamika Ashford, positively identified a suspect on the same night and she wrote statements on him of truth in detail on him at the crime scene.

On November 2, 2015, Applicant filed an Amended Application alleging the following grounds in addition to the prior grounds stated in the original Application:

(1) Ineffective assistance of trial counsel -- trial counsel failed to have warrants dismissed/quashed, as amended warrants were never served on Applicant;

(2) Ineffective assistance of trial counsel - counsel failed to retain eye witness expert on defendant's behalf;

(3) Ineffective assistance of trial counsel-trial counsel failed to object to sentencing judge's belief of facts of the case and sentence;

(4) Ineffective assistance of trial counsel - - trial counsel failed to object to statements regarding witness Tameka Ashford in opening statements; and

(5) Ineffective assistance of appellate counsel - - trial counsel failed to argue the appropriate issues on appeal, including witness Tameka Ashford's testimony being admissible and the admissibility of nearby truck.

At the PCR evidentiary hearing held before this Court on August 30, 2017, Applicant testified in his own behalf. Applicant's trial counsel Douglas Strickler and Fielding Pringle also testified at the hearing after being called by Respondent. Applicant's appellate counsel Katherine Hudgins, also testified at the hearing, after being called by Respondent.

At the PCR hearing, Applicant proceeded on and offered evidence only on the following grounds:

(1) Counsel was ineffective for not reviewing discovery, specifically the 911 tape and the audio-tape of Tamika Ashford, with him prior to trial;

(2) Counsel should have objected when the Solicitor referenced the forthcoming testimony of Tamika Ashford in her opening statement;

(3) Counsel was ineffective in failing to object to the arrest warrants he was served with because the wrong date for the murder and burglary, May 6^th and not May 3rd and he was never served with the warrants containing the correct date of May 3rd;

(4) Counsel should have objected when the Solicitor argued in her closing argument that:

a. Applicant caused the head injury to the victim depicted in an autopsy photograph admitted in evidence;

b. Applicant wielded the murder weapon like a baseball hat; and

c. Applicant committed the crime;

(5) The State used improper scientific DNA extraction procedures in obtaining Applicant's DNA from inside the white socks admitted in evidence;

(6) Appellate counsel was ineffective for not raising on appeal the admissibility of Tamika Ashford's testimony and the admissibility of stolen truck from Camden, S.C.

[

FIRST HANDWRITTEN ATTACHMENT

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(1) During Trial (8-1-11) While on stand the only witness at the crime scene did read the handwritten statements she wrote on the suspect (David Williams). The Police gave her a sworn oath to tell the truth she said it was him she saw at the victim house But when they brought him out of his house the police told her they found him hiding in a closet and he did have time to change clothes No clothing was taken from that closet to be tested for Victim DNA.

(2) One year later the Columbia City Police went to Camden City Kershaw County to Frankie McGee home and took clothing that belong to his adult son and daughter No DNA present from no one Also wrong size clothing.

D,N,A - Questions unansurd

(3) During Trial (8-1-11) While on stand investigator Kevin Reese could not answer about the size 9” bloody shoe print inside Victim house Frankie McGee shoe print is size 11” shoe print.

(4) The metal bar found across the road inside a dog fence The DNA on that handle do not belong to Frankie McGee The Witness positively identified (David Williams) in a show up procedure as the only person that night standing in Victim yard with a object in his hands a long object a stick or a pipe He was 6 feet 1” taller and 180 LBS or 200 LBS He was arrested that same night.

(5) Frankie McGee was not present at that residence at 11:45 pm F. McGee is 5 feet 8” tall and 230 LBS No one identified F. McGee that night neither that year neither doing trial.

(6) The socks found across the road 1 city block away on the side of the road on the ground The first DNA Test from the DNA Testing Manual and the second test from the DNA Manual McGee was negative no DNA.

(7) 1 year later the police used a testing procedure not authorized and not permitted also not listed in the DNA Protocol Extracting Procedure Manuel (sic) When used they found 3 people touch DNA present (David Williams) (Frankie McGee) and (no name) to match up to (David Williams) was the only person seen walking in that direction that night.

(8) During Trial (8-1-11) a uniform officer testified on stand to say the (911) Dispatch Description was matching (David Williams) The other subject with him was never identified.

D,N,A AND Socks

(9) During Trial (8-1-11) No one testified to say they saw anyone with socks no socks were seen being used that night.

(10) One year after the incident happen the Columbia City Police Investigator Kevin Reese interrogated Frankie McGee concerning his DNA touch DNA inside of a pair socks found near a crime scene I told the police I used the public laundry matt in that area to wash clothes and I threw away some socks into the trash can dumpster before leaving to go home this was at 3:00 pm day light time I told him it was next to a light post at the Laundry Matt.

(11) During Trial (8-1-11) Reese lied on stand to the jury about what I originally told him. During the interrogation Perjury.

[SECOND HANDWRITTEN ATTACHMENT:]

During Trial (8-1-11)

Investigator Kevin Reese while on stand committed perjury and lied on stand about what he did that night.

(1) The interrogation and secret hidden tape recorders operated by a remote control being turn on and off to record and leave out certain parts of the interrogation.

(2) Investigator Kevin Reese lied on stand about where the socks were found ((Verses)) where they were photographed.

(3) Investigator Kevin Reese lied on stand about he and his partner SGT. Thomas was at 54 the crime scene that night for hours SGT. Thomas was not present that night at all and SLED crime report indicates Officer Reese signed on and 4-minutes later he signed off and left.

(4) The investigators who was at the crime scene did not testify in court.

(5) The Solicitor told the Judge the only witness there that night was already identified a suspect that night and she can only do an out of court identification In Court also she will not be able to do a positive ID on McGee because she positively identified a suspect name (David Williams). The same night three days later while at the Police Dept she changed her statement and said she cannot say for sure who the person was because it was real real dark No street lights no porch light.

(6) There was no eye witness to see the burglary neither the assault and the witness positively identified (David Williams) that night and wrote statements on him as suspect in victim yard.

(7) During trial (8-1-11) the solicitor told the jury it was the defendant, Frankie McGee.

D,N,A -- Evidence Grounds

(8) During trial (8-1-11) The solicitor used a stolen truck in the trial a truck was stolen from Camden S.C. and found parked at a Towing Impound Yard 1 -mile from the Victim Residence. No one was seen driving that truck in Columbia Neither in that neighborhood Frankie McGee DNA was not inside neither outside of the truck. The owner testified on stand to say when he got the truck back it was inventoried. Also nothing was missing in neither off the truck Also he said he cannot say that Metal Bar came off his truck.

(9) The Initials Engraved on the Metal Bar does not belong to no one at his company and nothing was missing on neither off of the truck Frankie McGee DNA was not on the truck. Neither that Metal Bar found across the road from the Victim residence Inside a Fenced in dog pin with dogs inside of the dog pin.

(10) Camden City Police Dept in Kershaw County did not question neither charge Frankie McGee because the owner testified on stand to say he does not know who stole the truck.

(11) Columbia City Police Dept in Richland County did not charge Frankie McGee only questioned him about the truck 1-year after the incident.

[THIRD HANDWRITTEN ATTACHMENT:]

(1) The incident of Burglary and assault Murder happen May 3, 2009 at 11:45 pm inside victim residence.

(2) On March of 2010 while incarcerated on unrelated charges at Wateree River Correction 55 in Sumter 3 Columbia City Investigators interrogated me by force using secrete hidden remote control tape recorder. During trial it was proven the recorders were being turn on and off to only record certain parts of the interrogation on McGee. The Prison Warden did not know of the secret recording inmate McGee did not know he was secretly recorded There was no court order to use secret recording on McGee while in Prison McGee “Never” confessed to no crime officer Reese also twisted McGee hand and arm to make McGee Confess It was only McGee and 3, Columbia Investigators in a small Room No S.C.D.C. officers were not present at no time officer Reese also forged McGee signature on the Miranda Rights Paper Also Officer Reese was fired twice from the Columbia Police Dept. Prior to this Incident

(3) Three Days after the interrogation the Columbia City Police Dept served a warrant on McGee and transported him to Richland County Detention Center. The warrants served on McGee was dated (May 6, 2009) The incident happen on (May 3, 2009) The interrogation was about concerning what happen on (May 6, 2009) During Trial (8-1-11) Judge Clifton Newman ask the solicitor which warrant is she seeking to prosecute on the defendant Because he was looking at two warrants (May 6, 2009) and (May 3, 2009) The solicitor said use the (May 3, 2009) Warrant. Frankie McGee was never served a warrant for (May 3, 2009). But I was put on trial and wrongfully convicted on a warrant never served on me McGee was charged with a high profile Capitol Murder Charge.

(4) During Trial (8-1-11) McGee Plead Not “Guilty” Also McGee was Not Present in the Neighborhood at 11:45 pm. Neither at the Victim Residence When the Incident Happen.

Facts Proven During Trial

(5) The Witness at the Victim House Testified on stand to say she was inside of victim home with victim when incident happen but she did see No one commit No Burglary and No Assault which caused the victim to die.

(6) She wrote statements on a suspect name (David Williams) and took a sworn oath to tell the truth and positively identified him in a show up procedure minutes within the same hour of incident. Her description was 6 feet 1” Taller and 180 LBS “Or” 200 LBS wearing Blue Jeans and a white shirt holding a stick or a pipe in his hands wearing white plastic gloves or rubber hospital gloves. He was standing on the porch and drive way so when she circle the block the second time she saw him walking across the road. She also pointed the Police in the direction (David Williams) went walking. No one else except him was positively identified by that witness that night at 11:45 pm.

(7) During Trial (8-1-11) the Uniform Officer testified on stand to say the person he chased and arrested matching the “911” description was (David Williams).

D,N,A - Facts During Trial (8-1-11)

(8) Frankie McGee was not present at the victim residence when the incident happened at (11:45pm) May 3, 2009

(9) There is no Police Report and no Eye Witness to say they saw McGee that night at victim house at 11:45 pm. Neither in that neighborhood.

(10) McGee DNA was not at the victim residence inside neither outside.

(11) McGee DNA was not on that metal bar used in the crime. Another person DNA was on the handle with no name to match it to. (David Williams) was the only suspect identified as having an object in his hands that night at 11:45 at Victim Home.

(12) (David Williams) was seen going across the road in the direction where the evidence was located by the police. The DNA expert testified on stand to say (David Williams) DNA as on the socks found on the ground beside the road. Another person DNA was present no name to match up to. No one was seen with neither using any socks that night.

ECF No. 1 at 5; ECF No. 1-1 (Errors in Original).

B. Standard for Summary Judgment

The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 323 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).

C. Habeas Corpus Standard of Review

1. Generally

Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320, 336 (1997); Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362 (2000). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.

a. Deference to State Court Decisions

Courts afford deference to state courts' resolutions of the habeas claims of state prisoners. See Bell v. Cone, 543 U.S. 447, 455 (2005). The Supreme Court has provided further guidance regarding the deference due to state-court decisions. Harrington v. Richter, 562 U.S. 86 (2011); Cullen v. Pinholster, 131 S.Ct. 1388 (2011). To obtain habeas relief from a federal court, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. “[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102. The Court further stated: “If this standard is difficult to meet, that is because it was meant to be.” Id.; see Richardson v. Branker, 668 F.3d 128, 137-44 (4th Cir. 2012) (quoting Harrington extensively and reversing district court's grant of writ based on his ineffective assistance of counsel claims).

In interpreting § 2254(d)(1) and discussing the federal courts' role in reviewing legal determinations made by state courts, the United States Supreme Court held as follows:

[A] federal court may grant a writ of habeas corpus if the relevant state-court decision was either (1) “contrary to . . . [clearly] established Federal law as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.

Williams v. Taylor, 529 U.S. 362, 404-05 (2000) (quoting from § 2254(d)(1)). “Clearly established Federal law in § 2254(d)(1) refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams, 529 U.S. at 412). In considering whether a state-court decision is “contrary to” clearly established federal law, the federal court may not grant relief unless the state court arrived at a conclusion opposite to that reached by the Supreme Court on a legal question, the state court decided the case differently than the Court has on facts that are materially indistinguishable, or if the state court “identifie[d] the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applie[d] that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 405-13. The “unreasonable application” portion of § 2254(d)(1) “requires the state court decision to be more than incorrect or erroneous[,]” it “must be objectively unreasonable,” which is a higher threshold. Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citation omitted).

Section 2254(e)(1) requires the federal court give a presumption of correctness to statecourt factual determinations and provides that a petitioner can only rebut such a presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Accordingly, a habeas petitioner is entitled to relief under § 2254(d)(2), only if he can prove, by clear and convincing evidence, that the state court unreasonably determined the facts in light of the evidence presented in state court.

b. Ineffective Assistance of Counsel

The Sixth Amendment provides a criminal defendant the right to effective assistance of counsel in a criminal trial and first appeal of right. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court announced a two-part test for adjudicating ineffective assistance of counsel claims. First, a petitioner must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 687. Second, the petitioner must show that this deficiency prejudiced the defense. Id. at 694. The United States Supreme Court's 2011 decisions cited previously elaborate on the interplay between Strickland and § 2254, noting the standards are “both highly deferential,” and “when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal quotation marks omitted); Pinholster, 131 S.Ct. at 1403. When a petitioner raises in a § 2254 habeas petition an ineffective-assistance-of-counsel claim that was denied on the merits by a state court, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable[,]” not “whether defense counsel's performance fell below Strickland's standard.” Harrington, 562 U.S. at 101. “For purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Id. (citing Williams, 529 U.S. at 410) (emphasis in original). “A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id.

2. Procedural Bar

Federal law establishes this court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person “is in custody in violation of the Constitution or laws or treaties of the United States[,]” and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. 28 U.S.C. § 2254(a)-(b). The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require that a habeas petitioner first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.

a. Exhaustion

Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:

(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court, shall not be granted unless it appears that-

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B) (i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.

(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.

The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.

In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal; or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767 (S.C. 1976). If the PCR court fails to address a claim as is required by section 17-27-80 of the South Carolina Code, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will result in the application of a procedural bar by the South Carolina Supreme Court. Marlar v. State, 653 S.E.2d 266, 267 (S.C. 2007). Strict time deadlines govern direct appeals and the filing of a PCR in the South Carolina courts. A PCR must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.

Furthermore, in filing a petition for habeas relief in the federal court, a petitioner may present only those issues that were presented to the South Carolina Supreme Court or the South Carolina Court of Appeals. See State v. McKennedy, 559 S.E.2d 850, 853 (S.C. 2002) (holding “that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error.”) (quoting In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief, 471 S.E.2d 454, 454 (S.C. 1990)).

b. Procedural Bypass

Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.

The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the United States Supreme Court explains: [state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case. Reed v. Ross, 468 U.S. 1, 10-11 (1984).

However, if a federal habeas petitioner can show both (1) “‘cause' for noncompliance with the state rule[,]” and (2) “‘actual prejudice resulting from the alleged constitutional violation[,]'” the federal court may consider the claim. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 23, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986).

If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met and the rules of procedural bar apply. See Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996).

3. Cause and Actual Prejudice

Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the South Carolina Supreme Court in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or that a “fundamental miscarriage of justice” has occurred. Murray, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor that hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Id. Absent a showing of cause, the court is not required to consider actual prejudice. Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.

III. Analysis

A. Procedurally-Barred Grounds

Respondent argues Petitioner's Ground One, Ground two (1), (m), (n), and (o) of the first attachment to the extent these are direct appeal grounds, Grounds (8), (9), (10), (11), (14), (15), and (19) of the first attachment, the 2^nd Ground of the second additional attachment, Grounds 1 through 11 of the first handwritten attachment, Grounds 1 through 7 and 9 through 11 of the second additional handwritten attachment, and Grounds 1 through 12 of the final handwritten attachment are procedurally barred as these grounds are direct appeal grounds that were not raised on direct appeal. ECF No. 26 at 57-58. Respondent also argues Grounds two (a) through (g), (i) through (o) and Grounds (3) through (19) of the First attachment, the first grounds (2) and (3) of the second additional attachment, Grounds (1) through (6) and Grounds (8) through (11) of the first handwritten attachment, Grounds (1) through (7) and (9) through (11) of the second additional handwritten attachment, and Grounds (1) through (12) of the third and final handwritten attachment are also procedurally barred as they were not ruled on by the PCR court. Id. at 58-60. Respondent further argues that the PCR issues that were not raised in Petitioner's Johnson petition and Petitioner's Pro Se Response to the Johnson petition are also procedurally barred from habeas review. Id. at 60.

In Petitioner's direct appeal, the South Carolina appellate courts ruled on the following grounds:

1. Did the trial judge err in admitting identification testimony based on a single photo line-up that was unduly suggestive and inherently unreliable?

2. Did the trial judge err in admitting evidence in regard to the theft of a truck in Camden when the theft does not meet an exception pursuant to Rule 404(b) and is not sufficiently linked to the charged crime to constitute res gestae?

App. 1396-99.

In the PCR court's order of dismissal, the court addressed the following six claims on the merits:

(1) Counsel was ineffective for not reviewing discovery, specifically the 911 tape and the audio-tape of Tamika Ashford, with [Petitioner] prior to trial;

(2) Counsel should have objected when the Solicitor referenced the forthcoming testimony of Tamika Ashford in her opening statement;

(3) Counsel was ineffective in failing to object to the arrest warrants [Petitioner] was served with because the wrong date for the murder and burglary, May 6th, and not May 3rd and he was never served with the warrants containing the correct date of May 3rd;

(4) Counsel should have objected when the Solicitor argued in her closing argument that:

(a) Applicant caused the head injury to the victim depicted in an autopsy photograph admitted in evidence;

(b) Applicant wielded the murder weapon like a baseball bat; and

(c) Applicant committed the crime; and

(5) The State used improper scientific DNA extraction procedures in obtaining Applicant's DNA from inside the white socks admitted in evidence; and

(6) Appellate counsel was ineffective for not raising on appeal the admissibility of Tamika Ashford's testimony and the admissibility of stolen truck from Camden, S.C.

See App. 1563-1606. In his appeal of the PCR order, Petitioner's counsel filed a Johnson petition in which he raised the following ground:

(1) Whether the PCR court erred in denying relief, where trial counsel failed to object to the assistant solicitor's improper remark during closing argument, where the solicitor argued that Petitioner wielded the murder weapon, a steel rod, like a baseball bat?

See ECF No. 26-11 at 3. In his Pro Se Response, Petitioner argued that he was actually innocent of the murder and burglary convictions. ECF No. 26-12.

The undersigned finds Petitioner's direct appeal claims, to the extent they are raised in Petitioner's habeas petition, are not procedurally barred. The undersigned also finds the claim raised in Petitioner's Johnso n petition is also not procedurally barred. Further, because South Carolina appellate courts review all the issues raised to and ruled on by the PCR court under Anders and Johnson, the undersigned finds Petitioner's habeas grounds that were ruled on by the PCR court are not procedurally barred. See Jamison v. State, 765 S.E.2d 123, 128 (S.C. 2014) (“This Court recently held that, ‘[u]nder the Anders procedure, an appellate court is required to review the entire record, including the complete trial transcript, for any preserved issues with potential merit.'”) (citing McHam v. State, 746 S.E.2d 41, 46 (S.C. 2013)). The undersigned finds the remaining grounds raised in Petitioner's habeas petition, to the extent these grounds were not ruled on by the South Carolina state courts, are not preserved for habeas review. See Coleman, 501 U.S. at 731-32 (stating that if an issue is not properly raised to the state's highest court and would be procedurally impossible to raise now, then it is procedurally barred from federal habeas review); Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir. 2000) (“[A] federal court may not grant a writ of habeas corpus to a petitioner in state custody unless the petitioner has first exhausted his state remedies by presenting his claims to the highest state court.”). Consequently, federal habeas PCR court's order are barred absent a showing of cause and actual prejudice, or actual innocence. Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Matthews v. Evatt, supra.

1. Cause and Prejudice

Petitioner has not shown sufficient cause and prejudice to excuse the default of his habeas claims that were not addressed in his direct appeal or in the PCR court's order of dismissal. In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

The existence of cause must ordinarily turn on whether the prisoner can show some objective factor external to the defense impeded counsel's or his efforts to comply with the state's procedural rule. Murray, 477 U.S. at 488. Petitioner fails to articulate cause for procedurally defaulting his habeas claims that were not addressed in his direct appeal or in the PCR court's order of dismissal. Accordingly, Petitioner cannot establish cause and prejudice. See 28 U.S.C. § 2254; Mazzell v. Evatt, 88 F.3d 263, 269 (4th Cir. 1996) (holding that to show prejudice, a petitioner must show that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different).

In the alternative, Petitioner must show a miscarriage of justice. To demonstrate a miscarriage of justice, Petitioner must show he is actually innocent. Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 622 (1998). To pass through the actual-innocence gateway, a petitioner's case must be “truly extraordinary.” Schlup v. Delo, 513 U.S. 298, 327 (1995). The court's review of the record does not support a showing of actual innocence. Therefore, the procedural bar applies to all the claims raised in Petitioner's habeas petition except for the six claims ruled on in the PCR court's order.^{3 3}

3 Although the claims raised by Petitioner in his direct appeal are also preserved for habeas review, Petitioner does not raise these grounds in his habeas petition.

3 Neil v Biggers 409 U.S. 188 (1972).

B. Merits Review

As part of his habeas petition, Petitioner includes the list of the claims that were addressed on the merits by the PCR court. As these claims are the sole claims properly before the court, the undersigned has utilized those claims to present Petitioner's habeas grounds.

1. Ground One

Petitioner claims his trial counsel was ineffective in failing to review discovery with him prior to trial, especially the 911 tape and the audiotape of Tamika Ashford's statement to the police. ECF No. 1-1 at 7.

At the PCR hearing, Petitioner testified he met with his trial attorneys “on separate occasions several times” and during this time he had an opportunity to go over some of the discovery, but indicated some of the discovery was withheld from him. App. 1503. Petitioner stated he did not have an opportunity to review the discovery related to Tamika Ashford's visit to the police department and a recorded statement she made three days after the incident or the original 911 call Ashford made to the police. App. 1503-1504, 1526. Petitioner stated Strickler came to see him at the detention center and told him

“Frank, I've got a tape I want you - I got some tapes -- some - some - some -some -- CDs I want you to hear of different people being questioned about this incident.” And some of them was the key witness, Tamika Ashford. And she specifically told the police that she didn't see who the person was in the yard and didn't see nobody commit a crime. And she had lied three times about different statements that weren't adding up.

App. 1526-27. Petitioner stated the recording of the 911 call and the recorded statement Ashford made to the police were lost before the trial started. App. 1504, 1526. Petitioner testified that when he asked Strickler about those CDs during the trial, Strickler told him, “Don't expose your hand at one time. . . Save it later so when you go back on your direct appeal or your PCR.” App. 1527.

Trial counsel Douglas Strickler testified he met with Petitioner on “at least 12 occasions, covering almost eight hours total in conference with him.” App. 1536. Counsel stated he filed a Rule 5 motion for discovery and he had to file a discovery motion concerning several items that the solicitor's office said they had given to counsel but they had not. App. 1536-37. Counsel testified he believed they resolved those issues. Id. Counsel testified he heard Petitioner's testimony about a 911 tape and a statement by Ms. Ashford that was withheld, and he stated he did not have any memory of those being issues in this trial. App. 1537-38. Counsel stated it was his habit and practice to review all the discovery with Petitioner prior to the trial, and he discussed all of the charges Petitioner faced and the elements the State would have to prove, and he believed Petitioner understood what was going to happen at trial. App. 1540. Counsel testified he did not recall if there was a recorded tape of Ashford's interview but he did not believe he played any recordings for Petitioner at the jail. App. 1545.

Trial Counsel Ms. Pringle testified she met with Petitioner a number of times and it was her practice to review discovery but she was not sure when she came into the case and that may have been something Stricker spent more time doing. App. 1548. Pringle stated she and Petitioner discussed the case, his defenses, what their plan was, and what the evidence in discovery showed. App. 1549. Pringle testified she was not aware of the recorded issues Petitioner testified about, but it they had a recording, someone would have reviewed it with him. App. 1550.

The PCR court denied the claim finding:

At the PCR hearing, Applicant alleged counsel was ineffective in failing to review certain discovery with him; specifically, not allowing him to listen to the 911 call of Tamika Ashford, an eyewitness, and Ms. Ashford's tape recorded statement to police given after the night of the crimes. Applicant admitted at PCR that counsel met with Applicant numerous times and reviewed all of the rest of his discovery with him. Applicant also admitted counsel reviewed the States' evidence with him prior to trial. Applicant also admitted at PCR that the 911 tape was lost by Emergency Medical Services (EMS) prior to his trial and therefore it was not counsel's fault that the 911 tape could not be reviewed with him.

Mr. Strickler testified he did not remember allowing Applicant to review the tape recorded statement of Ms. Ashford given to police after the night after the crimes, because he had no recollection of taking his computer with him to the Detention Center during any of his numerous meetings with Applicant. However, at the PCR hearing Applicant testified he had reviewed with Mr. Strickler CD's of at least one (1) recorded statement of one (1) witness.

Ms. Pringle testified either she or Mr. Strickler would have reviewed the audio-tape of Ms. Ashford's interview with police with Applicant prior to his trial. She also testified she and co-counsel reviewed the substance of all of the discovery provided by the State with Applicant prior to trial.

This Court had the opportunity to view the testimony of each witness-on this issue at the PCR hearing. This Court finds credible only that portion of Applicant's testimony that the 911 tape was lost by EMS prior to his trial. Therefore, this court finds counsel could not have been ineffective in failing to allow Applicant to review the 911 tape prior to trial. Strickland v. Washington.

This Court finds credible the testimony of Ms. Pringle that either she or Mr. Strickler would have reviewed the audio-tape of Ms. Ashford's interview with police with Applicant at some point prior to trial. Furthermore, Ms. Pringle and Mr. Strickler credibly testified they met with Applicant numerous times, went over the State's evidence against Applicant with him, and prepared with Applicant for trial. This Court finds credible the testimony of Ms. Pringle that she and co-counsel reviewed the substance of all discovery with Applicant prior to trial. This Court finds even if counsel had not allowed Applicant to actually listen to the audio-recorded statement of Ms. Ashford, counsel would have reviewed with Applicant the substance of her recorded statement. This Court finds Applicant's testimony regarding this particular issue to be not credible.

Regardless, this Court finds Applicant has failed to meet his burden of proof to show ineffective assistance of counsel. Strickland. At the PCR hearing. Applicant did not introduce the audio-tape of Ms. Ashford's interview with police. Applicant did not show through any credible testimony how counsel's not reviewing the audiotape itself with him was deficient or prejudicial. Applicant did not show how the failure to review the audio-tape of Ms Ashford with him prejudiced his defense

at trial; or that had counsel reviewed the audio-tape with him there is a reasonable probability the result of his trial would have been different. Id. In fact, Applicant does not argue counsel did not review the audio-tape themselves, or that they did not use it at trial, but only that they did not review the same with him. The record of Applicant's trial shows counsel did fully and completely cross-examine and impeach Ms. Ashford's testimony including bringing out her identification of a different person on the night of the crimes, her written statement to police, and her recorded statement given to police after the night of the crimes. (See Trial Tr. Aug. 8, 2011 pp. 61-132). As a result, Applicant has failed to show deficient performance or resulting prejudice in this regard. Strickland. Therefore, this ground has no merit and must be denied and dismissed with prejudice.

App. 1579-81.

Respondent moves for summary judgment on this ground arguing Petitioner has failed to show the PCR court unreasonably applied U.S. Supreme Court precedent or reached an unreasonable determination of the facts. ECF No. 26 at 140-43.

In his response in opposition to summary judgment, Petitioner does not address the merits of his Ground One claim. ECF No. 31. Instead, he argues he is innocent of the murder and burglary convictions pointing out that none of the witnesses were able to identify him as having been at the house at the time of the attack, and that none of his DNA was found at the crime scene. Id. Petitioner also points out that Ashford gave the police several statements that contained conflicting information about what she saw that night. Id. Petitioner states Ashford gave an initial statement where she identified another individual as the perpetrator of the crime, and states Ashford never definitively identified Petitioner as the person she saw outside of the house. Id.

The undersigned finds Petitioner has not shown that the PCR court's decision on this claim was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See Williams v. Taylor, 529 U.S. at 398. The record before the court supports the PCR court's findings that trial counsel reviewed all the discovery with Petitioner while preparing for the trial and that during trial counsel fully cross-examined Ms. Ashford with her earlier identification of another individual as the intruder, including reviewing her audio and written statements after the night of the crimes. The PCR court's factual findings are based, in part, on its assessment that counsel's testimony was more credible than that of Petitioner. The PCR court's credibility determination is entitled to deference in this action. Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)) (“[F]or a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear.”); see also Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (“28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.”). Petitioner may overcome this presumption of correctness only by showing “‘clear and convincing evidence to the contrary.'” Wilson v. Ozmint, 352 F.3d 847, 858 (4th Cir. 2003) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). Petitioner has shown no cause to discount the PCR court's credibility determination and the undersigned can find no basis in the record on which to overturn the state court decision. Petitioner has failed to demonstrate that his counsel's performance was deficient. The undersigned recommends Ground One be dismissed.

2. Ground Two

Petitioner claims his trial counsel was ineffective when he failed to object to the Solicitor's reference to Tamika Ashford's testimony in her opening statement. ECF No. 1-1 at 7. Petitioner contends his trial counsel failed to object to the prosecution's opening statement where she speculated about what happened on the night of the burglary and murder when there was “no police incident report and no witness to testify on the stand to prove the allegations said by the prosecutor during trial misleading the jury with false statements.” Id. at 2, 4.

Strickler testified he does not recall if he objected to the solicitor referencing the Ashford statement in her opening, where Ashford identified someone who matched Petitioner's description. App. 1543-44. Counsel stated “if I didn't object, that's reflected in the record and I should have.” App. 1544-45.

The PCR court found this ineffective assistance of counsel allegation to be without merit, as follows:

At the PCR hearing, Applicant alleged counsel should have objected when the Solicitor referenced the upcoming testimony of Tamika Ashford in her opening statement. (Sec Trial Tr. pp. 271-88). Applicant alleged Ashford's testimony was inadmissible and the trial judge had not yet ruled on the admissibility of her testimony and therefore counsel should have objected when the Solicitor mentioned her in opening statement. There is no merit to this ground for the following reasons.

Opening statements are not evidence. The purpose of an opening statement is to give the jury a roadmap or an overview of where the case or presentation of evidence is going. United States v. Dinitz, 424 U.S. 600 (1976)(Burger, CJ., concurring); State v. Brown, 277 S.C. 203, 284 S.E.2d 777 (1981): State v. Harris, 275 S.C. 463, 272 S.E.2d 636 (1980). The purpose of an opening statement is to assist the jury in understanding the presentation of evidence, and the position of each side in the case. Id. When the prosecution refers to facts in its opening statement, there is no error as long as the solicitor introduces evidence to reasonably support statements made in an opening argument. State v. Kornahrens, 290 S.C. 281, 350 S.E.2d 180 (1986). See also State v. Sims, 348 S.C. 16, 558 S.E.2d 515 (2002).

Ms. Ashford's Testimony

As set forth in the Court of Appeals' published opinion in this case, Tamika Ashford was present at the victim's residence on the night of and at the time of the burglary of the victim's home and deadly assault of the victim. See State v. McGee, 408 S.C. 278, 758 S.E.2d 730 (Ct. App. 2014). Ms. Ashford was inside the victim's residence talking with the victim [Reverend Tryon Eichelberger] in his den or living room, which was located in the front - of the victim's house, at approximately 11:00 p.m. While Ms. Ashford and the victim were talking, they both heard a noise coming from the back of the victim's house. The victim went to investigate the noise and Ms. Ashford stayed in the den or living room. She then heard the victim state out loud: “How did you get in here?” Ms. Ashford then heard noises that sounded like a struggle between the victim and another person in the back of the house. Afraid, Ms. Ashford fled from the house out the front door, got in her car, and drove around the block While she did so she used her cell phone to call police

She then drove back around the block and saw a man on the front porch of the victim's residence with a metal pipe in his hand and wearing white gloves. She could describe the man generally and what he was wearing. He was a husky man with a pot belly and receding hair line and he was wearing a white shirt and blue jeans. After seeing the man on the porch with the pipe in his hand, afraid, she immediately left the scene again and shortly thereafter saw the same man on foot walking down Farrow Road but no longer wearing white gloves or carrying the metal pipe. She then waited on police and when they arrived she drove back to the victim's residence and eventually gave police a description of the man she had seen on the porch.

Later that night, she was driven to an area near the crime scene and asked to identify a man (not applicant) in a one(1) person show-up. She informed police that the person looked like the man she had seen on the victim's front porch, but he was wearing the wrong clothes. This man was later eliminated as a suspect by police through further investigation and DNA testing. Months later, Ms. Ashford was shown a six (6) person photo line-up or array. She was asked if she recognized anyone in the array. She identified two (2) photos in the line-up as looking like the person she saw on the front porch of the victim's residence the night of the burglary and deadly assault, and she identified one (1) of those two (2) photos, the photo of Applicant, as looking most like the person she saw on the front porch of the victim's residence. However, Ms. Ashford could not make a positive identification of Applicant as the perpetrator out-of-court and did not do so in-court. Id. She only testified Applicant's physical characteristics met the general physical characteristics of the person she saw the night of the deadly assault.

Other Relevant Evidence

On the night of the burglary and deadly assault, police responded to Ms. Ashford's 911 call. They found the victim lying on his kitchen floor in a pool of blood. He was unresponsive and unable to identify the person who broke into his home and assaulted him. The victim later died and it was determined that he died from blunt force trauma to the head from a blow to the head with a solid object inflicted at the time Ms. Ashford heard the struggle in the back of the victim's house.

The night of the burglary and assault, based on Ms. Ashford's description of the direction of travel of the perpetrator, across the street from the victim's residence, police found a metal pipe [later identified as a winch rod], with the victim's blood on it. Police also found damage to the back door of the victim's residence, the point of entry of the burglary, consistent with being caused by the winch rod. Further on from where the winch rod was found, in the direction of Farrow Road, in a vacant lot, police found a pair of white socks which were on the ground next to a tree. These white socks contained the victim's blood [DNA] on the outside of them. Applicant's DNA was found on the inside these white socks.

Another eyewitness also placed Applicant at the victim's residence the afternoon before the victim-was murdered walking around the residence on foot and walking down the street. It was also established at trial through surveillance video and the testimony of Applicant's sister that Applicant stole a tractor trailer truck from Camden, SC and abandoned it near the victim's residence earlier the day of the victim's murder and that Applicant was a licensed tractor trailer truck driver who had experience using a winch rod which is contained in a tractor trailer's tool box. Applicant had also previously been convicted of two (2) prior burglaries. See State v. McGee, 408 S.C. 278, 758 S.E.2d 730 (Ct. App. 2014).

Applicant was questioned about the victim's murder while incarcerated on other unrelated charges. While Applicant denied he committed the burglary and murder, Applicant admitted he was in the area of the victim's residence on the day and night of the burglary and deadly assault. Applicant admitted he knew the victim; and he admitted he had been to the victim's church previously and to the victim's residence the day of the burglary and assault. Applicant admitted he removed a white pair of socks from his person that same day or night and left them next to a light pole. Applicant alleged he removed the socks and left them by the pole on the night of the victim's assault because of an athlete's foot condition. See State v. McGee, 408 S.C. 278, 758 S.E.2d 730 (Ct. App. 2014).

PCR Testimony

Both trial counsel Ms. Pringle and appellate counsel Ms. Hudgins testified at the PCR hearing that Tamika Ashford's testimony was admissible because she was an eyewitness and her testimony was relevant; but it was any attempt by her to make an out-of-court or in-court identification of Applicant that was inadmissible or objectionable. It was for this reason that counsel did object to the admission of Ms. Ashford's testimony as far as an out-of-court or-in court identification. This Court finds the testimony of Ms. Pringle and Ms. Hudgins on this issue to be credible and supported by case law.

This Court does not find credible or valid Mr. Strickler's testimony at the PCR hearing that it was his belief or theory that simply because Ms. Ashford could not make an out-of-court or in-court identification of Applicant it made her testimony irrelevant and inadmissible. Ms. Ashford's testimony was relevant and admissible because she was an eyewitness and ear-witness to what occurred that night in and outside of the victim's residence at the time of the burglary and murder. Rule 401, SCRE (“Relevant evidence means evidence having any tendency to make, the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence); Rule 402, SCRE (All relevant evidence is admissible, except as otherwise provided by the U.S. Constitution, the S.C. Constitution, and the statutes and rules of the S.C. Supreme Court); Rule 403, SCRE (Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence).

Her testimony, if believed by the jury established: (1) where the deadly assault took place, (2) the time of the burglary and deadly assault, (3) where the perpetrator entered the victim's home, (4) the victim died as a result of a struggle with an intruder who entered from the back of the victim's home, (5) a general description of the intruder/assailant, (6) as the intruder/assailant left the victim's residence he was holding a metal rod or pipe and wearing what appeared to be white gloves, and (7) when she saw the intruder/assailant again he was walking on Farrow Road and he no longer had the metal pipe or rod in his hand and was no longer wearing the white gloves.

Ms. Ashford, as an eyewitness could testify to what she saw and what she heard that night and to her role in the police investigation that followed. In fact, she was the only “eyewitness” to many of the facts she testified to or her testimony was inextricably linked to the other evidence in the case and necessary to prove the identity of the victim's killer. State v. Alexander, 303 S.C. 377, 401 S.E.2d 146 (1991) (evidence is relevant and admissible if it tends to establish and make more or less probable some matter in issue upon which it directly or indirectly bears); State v. Sims, 304 S.C. 409, 405 S.E.2d 377 (1991)(evidence which assists a jury at arriving at the truth of an issue is relevant and admissible, unless otherwise incompetent); State v. Finley, 300 S.C. 196, 387 S.E.2d 88 (1989)(the evidence in question need not be sufficient in itself to establish the whole or any definite portion of a parties contention).

This Court also does not find credible Mr. Strickler's testimony that he should have objected when the Solicitor mentioned Ms. Ashford in her opening statement. The State stipulated before opening statements that Ms. Ashford did not make an out-of-court identification of Applicant and would not make an in-court identification of Applicant. She did not. The remainder of her testimony was relevant and admissible. This Court believes it was for these reasons that counsel did not object at the time to the mention of Ms. Ashford in opening statement. (See Tr. pp. 27188). Furthermore, the Solicitor admitted in her opening statement to the jury that Ms. Ashford identified the wrong person on the night of the crimes, and only later picked out Applicant's picture as a possible person who committed the crime. (See Tr. pp. 271-88).

The record shows Applicant was represented by trial counsel, Mr. Strickler and Ms. Pringle, who were well experienced in the trial of criminal cases in South Carolina including murder cases. Counsel was well aware of the appropriate motions to make

regarding the admissibility of Ms. Ashford's testimony and made them.³

The record shows counsel raised the admissibility of Ms. Ashford's testimony as far as an out-of-court or in-court identification pre-trial and there was a hearing on this issue. (Tr. pp. 169-99; 201-07; 208-10; Tr. Aug. 3, 2011, pp. 7-43). A Neil v. Biggers hearing was conducted before Judge Newman where it was shown and conceded by the State that Ms. Ashford would not make an in-court identification of Applicant, and she had not positively identified Applicant out--of-court. (Tr. Aug. 3, 2011, pp. 7-43). In fact, the testimony showed she had tentatively identified the wrong person in an improper show-up [not Applicant] the night of the crime, except for stating this person was wearing the wrong clothes. This person was later eliminated as a suspect through investigation and DNA testing. And then, months later when shown a six (6) person photo line-up identified Applicant's photograph as 1 of 2 photographs in the line-up that most resembled the person who she saw standing on the porch of the victim's home after the crime and Applicant's photograph of those 2 photographs looked the most like the perpetrator she saw the night of the crime. (Tr. Aug. 3, 2011, pp. 7-43).

As Judge Newman correctly found and as the record shows, there was nothing improper or suggestive about this six (6) person photo line-up.

However, she did not and could not positively identify Applicant out-of-court. Nor was she going to make an in-court identification of Applicant. Judge Newman ruled she could testify to what she saw and heard that night at the victim's residence at the time of the murder and shortly thereafter and would be allowed testify to exactly what occurred during the investigation as far as what she knew and what she informed police of. Therefore, Ms. Ashford testified before the jury. (Tr. Aug. 8, 2011, pp. 61-134). And, Ms. Ashford did not make an in-court identification of Applicant at trial. She merely testified to what she saw and heard that night in and around the victim's residence, who she identified that night [which was not Applicant], and to the picking out of Applicant's picture along with another person's photograph from the 6 picture line-up as the persons most resembling the person she saw on the victim's front porch after the burglary and deadly assault and applicant's picture more resembled the person on the front porch than the other

picture she picked out. And, finally that Applicant's general characteristics were consistent with the general physical characteristics of the person she saw on the front porch of the victim's residence the night of the murder. However, she readily admitted to the jury she could not positively identify Applicant as it was dark and she did not see his face clearly.

As a result, this Court finds counsel was neither deficient nor was Applicant prejudiced by counsel's alleged failure to object to the mention of Ms. Ashford's forthcoming testimony by the Solicitor in her opening statement. Strickland v. Washington. Ms. Ashford's testimony was relevant and admissible because she was an eyewitness and ear-witness to what occurred that night in and outside of the victim's residence at the time of the burglary and murder. Rule 401, SCRE; Rule 402, SCRE; Rule 403. SCRE. Ms. Ashford, as an eyewitness, could testify to what she saw and what she heard that night and to her role in the police investigation that followed. In fact, she was the only “eyewitness” to many of the facts she testified to or her testimony was inextricably linked to the other evidence in the case and necessary to prove the identity of the victim's killer. Alexander, 303 S.C. 377, 401 S.E.2d 146; Finley, 304 S.C. 409, 405 S.E.2d 377; 300 S.C. 196, 387 S.E.2d 88. As her testimony was ultimately admissible and she did testify, counsel's choosing not to object to the mention of her in opening statement was neither deficient nor prejudicial. Strickland. Counsel's performance did not fall below an objective standard of reasonableness.

And, Applicant cannot show any resulting prejudice, i.e. had counsel objected there is a reasonable probability the result of his trial would have been different. Strickland. As Ms. Ashford's testimony was relevant and ultimately admissible on the points previously discussed, and she did testify pursuant to Judge Newman's ruling, there is no reasonable probability that Applicant would have been acquitted had counsel objected during the opening statement. Id. As a result, there is no merit to this ground and it must be denied and dismissed with prejudice.

Applicant further argued because Ms. Ashford initially identified the wrong person [not Applicant] at a show-up shortly after the crimes, that Ms. Ashford's testimony was inadmissible in his trial. And, because she did not positively identify Applicant from the photo-array containing his photograph, that her testimony was not admissible. As previously shown, this fact went to the weight or credibility of her testimony and description of the assailant not to the admissibility of her testimony. The jury could determine, given all of the circumstances, whether her description of the assailant was accurate. Furthermore, a review of the trial transcript shows trial counsel cross-examined, impeached or called into question the reliability of Ms. Ashford's description of the perpetrator through the use of her misidentification on the night of the crimes and her inconsistent statements given to police. (Trial Tr. Aug. 8, 2011 pp. 61-132). As a result, there was no ineffective assistance of trial counsel. Strickland.

As a result, this Court finds counsel was neither deficient nor was Applicant prejudiced by the opening statement of the Solicitor (See Trial Tr; pp. 271-88) or counsel's failure to object to this portion of the Solicitor's opening statement. Strickland v. Washington. Again, opening statements are not evidence. The purpose of an opening statement is to give the jury a roadmap or an overview of where the case or presentation of evidence is going. Dinitz, 424 U.S. 600 (Burger, CJ., concurring); Brown, 277 S.C. 203, 284 S.E.2d 777; Harris, 275 S.C. 463, 272 S.E.2d 636. It is to assist the jury in understanding the presentation of evidence, and the position of each side in the case. Id. When the prosecution refers to facts in its opening statement, there is no error as long as the solicitor introduces evidence to reasonably support statements made in an opening argument. Kornahrens, 290 S.C. 281, 350 S.E.2d 180. See also Sims, 348 S.C. 16, 558 S.E.2d 515. This is exactly what the Solicitor did in her opening statement, provided the jury with an overview or roadmap of where the evidence was going to take the jury and her statements were later supported by testimony actually introduced during the trial of the case.

Alleged Failure to Object to Relevance in Opening Statement to Crime Scene

At the PCR hearing, Applicant also alleged counsel was ineffective in failing to object when the Solicitor allegedly stated in her opening statement that Applicant's Blood [DNA] was found at the crime scene. This Court has reviewed the entire opening argument of the Solicitor (Tr. Trans. Aug. 1, 2011, pp. 271-88) and finds this ground of ineffective assistance of counsel to be without merit.

Opening statements are not evidence. The purpose of an opening statement is to give the jury a roadmap or an overview of where the case or presentation of evidence is going. United States v. Dinitz, 424 U.S. 600 (1976) (Burger, C.J., concurring); State v. Brown, 277 S.C. 203, 284 S.E.2d 777 (1981); State v. Harris, 275 S.C. 463, 272 S.E.2d 636 (1980). It is to assist the jury in understanding the presentation of evidence, and the position of each side in the case. Id. When the prosecution refers to facts in its opening statement, there is no error as long as the solicitor introduces evidence to reasonably support statements made in an opening argument. State v. Kornahrens, 290 S.C. 281, 350 S.E.2d 180 (1986). See also State v. Sims, 348 S.C. 16, 558 S.E.2d 515 (2002). This is exactly what the Solicitor did in her opening statement, provided the jury with an overview or roadmap of where the evidence was going to take the jury and her statements were later supported by testimony actually introduced during the trial of the case.

The Solicitor did not state as Applicant alleges that Applicant's blood was found at the crime scene, i.e. inside Reverend Eichelberger's home. (Tr. Trans. Aug. 1, 2011, pp. 271-88). The Solicitor in opening statement laid out a map of what the evidence would show, including that the victim's blood was found in his kitchen, on the winch rod, on the white socks found in the vacant lot, and Applicant's DNA was found inside the same white socks (Tr Trans Aug 1 2011 pp 271-88) The

Solicitor did misstate at one (1) point that Applicant's blood was found on the socks found in the vacant lot, but she immediately corrected herself and stated the blood on the socks came back to the victim: “I mean, I apologize to the victim, and the blood on the winch rod bar came back to the victim. (Tr. Trans. Aug. 1, 2011, pp. 275-76). She again misstated the blood on the socks was the defendant's when explaining that further DNA-testing showed Applicant's DNA was found not on the outside of socks but on inside the socks. (Tr. Trans. p. 277, ll. 1-14). The Solicitor continued summarizing all of the evidence in her opening statement including Applicant's incriminating statements including one (1) later admitting that the white socks were his, and he had taken them off near a dumpster and then changing his story and stating he took them off near a light pole. (Tr. Trans. Aug. 1, 2011, p. 280, ll. 15-25). The Solicitor then corrected her previous misstatement again stating the blood on the white socks belonged to the victim, but Applicant admitted he had worn the white socks and sweated in them. (Tr. Trans. Aug. 1, 2011, p. 280, ll. 15-25).

Furthermore, this Court has reviewed the trial record including the testimony of the DNA analyst before the jury. During that testimony, it was fully explained to the jury that the victim's blood was found on the outside of the white socks and Applicant's DNA was found on the inside of the sock. (ROA pp. 542-59, 561-629, 629-40). This was re-emphasized in the closing argument of the Solicitor.

As a result, this Court finds Applicant has failed to show counsel was ineffective for failing to object to the Solicitor's opening argument that allegedly stated Applicant's blood was found at the crime-scene. Strickland v. Washington. As shown above, the Solicitor did not argue or state in her opening-statement that Applicant's blood was found at the crime-scene [Reverend Eichelberger's house]. While the Solicitor misstated Applicant's blood was found on the white socks approximately two (2) residential lots away from the crime-scene, the Solicitor corrected herself and informed the jury it was the victim's blood that was found on the outside of the socks and Applicant's DNA that was found on the inside of the socks. The testimony of the DNA analyst at trial also fully explained to the jury that Applicant's blood was not found in Reverend Eichelberger's home, and that the victim's blood was found on the outside of the white socks and Applicant's DNA was found on the inside of the white socks. Furthermore, the Solicitor's closing argument reflected the same correct information. As a result, Applicant has failed to show deficient performance in this regard. Strickland. Given this record, Applicant has also failed to show resulting prejudice, i.e. but for counsel's failure to object in this regard there is a reasonable probability Applicant's trial would have resulted in a different outcome.

App. 1581-87.

3 See State v. Drayton, 293 S.C. 417, 361 S.E.2d 329 (1987)(the reliability of an identification procedure depends upon the consideration of a totality of the facts and circumstances of each particular case); State v. Scipio, 283 S.C. 124, 322 S.E.2d 15 (1984)(same): State v. Thompson, 216 S.C. 616, 281 S.E.2d 216 (1981)(similar); State v. Johnson, 318 S.C. 372, 458 S.E.2d 49 (Ct App. 1995)(same); Stovall v. Denno, 388 U.S. 293 (1967)(irrespective of the means by which a witness may make an identification, be it by a show up, physical line-up, or photographic line-up, the test for the admissibility of an identification is whether the method was so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant was denied due process); State v. Dixon, 284 S.C. 526, 328 S.E.2d (Ct. App. 1985)(same); State v. Ford, 278 S.C. 384, 296 S.E.2d 866 (1982)(same); Manson v. Brathwaite, 432 U.S. 98 (1977)(Factors to consider in evaluating the likelihood of misidentification include: (1) the opportunity of the witness to view the accused; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description; (4) the level of certainty demonstrated by the witness at the time of the identification confrontation; and (5) the length of time between the crime and the confrontation (identification); State v. Stewart, 275 S.C. 447, 272 S.E.2d 628 (1980)(same); State v. Drayton, 29 S.C. 417, 361 S.E.2d 329 91987); State v. Scipio, 283 S.C. 124, 322 S.E.2d 15 (1984)(similar); State v. Thompson, 276 S.C. 616, 281 S.E.2d 216 (1981).

Respondent moves for summary judgment arguing the PCR court addressed this issue and reasonably and correctly found this claim had no merit as Ashford's testimony was admissible and therefore the solicitor could reference Ashford's upcoming testimony in her opening statement. ECF No. 26 at 90, 113, 138-139, 143.

In his Response to Respondent's motion for summary judgment, Petitioner argues he is innocent of his murder and burglary conviction and points out there is no physical evidence or eyewitness testimony establishing Petitioner was in the victim's home the night of the attack. ECF No. 31.

In examining claims pertaining to improper comments by a prosecutor, “[t]he relevant question is whether the prosecutors' comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). The undersigned finds Petitioner has failed to establish there is a reasonable probability that the result of the proceeding would have been different if trial counsel had objected to the solicitor's referencing Ashford's testimony in her opening statement. Strickland, 466 U.S. at 694. Having reviewed the record and considered the weight of the evidence and the extent of the solicitor's statements in her opening about Ashford's testimony, the court finds the solicitor's statements did not render Petitioner's trial fundamentally unfair. The undersigned notes the statements made by the solicitor accurately reflected Ashford's testimony at trial, and the trial court found this testimony was admissible. Therefore, Petitioner cannot establish that trial counsel was constitutionally ineffective in failing to object during opening arguments to references to Ashford's testimony. Moreover, Petitioner has not shown that the state court's analysis of this issue misapplied clearly established federal law or, even if there was an error, that it was unreasonable. See Williams v. Taylor, 529 U.S. at 410. Based on the foregoing, the undersigned recommends Respondent be granted summary judgment on Petitioner's Ground Two claims.

3. Ground Three

Petitioner claims his trial counsel was ineffective in failing to object to, or move to quash, the arrest warrants he was served with because the warrant had the wrong date for the murder and burglary, May 6, and Petitioner was never served with warrants containing the correct date. ECF No. 1-1 at 7. Petitioner alleges the burglary and assault happened in Columbia on Sunday, May 3, 2009. Id. at 4. Petitioner contends he was “put on trial and wrongfully convicted on a warrant never served on [Petitioner who] was charged with a high profile Capitol Murder Charge.” Id. at 18.

At the PCR hearing, Petitioner testified he was served with an arrest warrant that stated the incident happened on May 6, although the police reports indicated the incident was on May 3. App. 1507. Petitioner stated that during his trial the solicitor indicated the State was seeking to try him on the May 3 warrant although he was never served with this warrant. Id. Petitioner stated he spoke with Strickler about the arrest warrant and told him he believed his civil rights were being violated because the correct date for the incident was not on the warrant. App. 1509-10. When asked if he was aware of the crime he was charged with, in spite of the date on the warrant, Petitioner stated he “wasn't aware of the crime. I was aware of what they told me - what I was being charged with, which was inconsistent to what they had written on the paper.” App. 1528.

Strickler testified he did not have any recollection of Petitioner bringing up any issues with the warrants, but he

suppose[s] it could've been a basis for some cross-examination of the officer. But he wasn't tried on the warrants. He was tried under indictment . . . [and he] didn't see any problems with indictment. I would've raised those pretrial, had I seen any.

App. 1538.

In dismissing this claim, the PCR court found as follows:

Applicant alleges counsel was ineffective in failing to object to the arrest warrants he was served with because they were dated the wrong date, May 6th, 2009 and not

May 3^rd, 2009 and Applicant claims he was never served with the warrants containing the correct date of May 3^rd. Applicant alleges this violated his civil rights under the United States Constitution and counsel should have objected or moved to quash the arrest warrants. Applicant was not arrested for this murder and burglary in the 1st degree until approximately one (1) year after the crimes and while Applicant was incarcerated in the South Carolina Department of Corrections for a different offense.

Counsel, Mr. Strickler, testified at the PCR hearing that based on his memory he believed he was aware of the issue with the arrest warrant but he did not raise an objection to them because Applicant was tried on the indictments not on the arrest warrants. Mr. Strickler testified he reviewed the indictments prior to trial and there was nothing deficient about them. Mr. Strickler testified if there had been something wrong or deficient with the indictments, he would have objected to them or made a motion to quash them.

This Court observed the testimony of both Applicant and Mr. Strickler on this issue. This Court finds the testimony of Mr. Strickler on this issue to be credible the testimony of Applicant on this issue to be not credible. This Court also finds there is no legal merit to Applicant's contention.

Even if Applicant was not served with the arrest warrants containing the correct date of the burglary and murder of the victim, it makes no significant legal difference. A deficient arrest warrant or a defect in an arrest warrant will not defeat, excuse, or bar a subsequent prosecution of the defendant on an indictment. State v. Biehl, 271 S.C. 201, 246 S.E.2d 859 (1978); State v. Carpenter, 257 S.C. 162, 184 S.E.2d 715 (1971; State v. Holiday, 255 S.C. 142, 177 S.E.2d 541(1970); State v. McCoy, 255 S.C. 160, 177 S.E.2d 601 (1970); Thompson v. State, 251 S.C. 593, 164 S.E.2d 760 (1968); State v. Swilling, 246 S.C. 144, 142 S.E.2d 864 (1965); State v. Waitus, 226 S.C. 44, 83 S.E.2d 629 (1954). It is the indictment or indictments on which the defendant is tried, not the original arrest warrants. State v. Castineira, 341 S.C. 619, 535 S.E.2d 449 (Ct. App. 2000), affirmed on writ of cert., 351 S.C. 635, 572 S.E.2d 263 (2003); State v. Cody, 180 S.C. 417, 186 S.E. 165 (1936). The subsequent indictment cures any defect in the arrest warrant. State v, McCoy, 255 S.C. 160, 177 S.E,2d 601 (1970); Thompson v. State, 251 S.C. 593, 164 S.E.2d 760 (1968); State v. Swilling, 246 S.C. 144, 142 S.E.2d 864 (1965); State v. Walker, 232 S.C. 290. 101 S.E.2d 826 (1958). See also State v. Bowman, 43 S.C. 108, 20 S.E. 1010 (1895). Further, the original warrants stated the victim was murdered on or about the 3^rd day of the month and the subsequent warrants stated the victim was murdered on or about the 6^th day of the same month. As a result, regardless of what warrants Petitioner was served with, Petitioner was on notice of the crime he was charged with, the murder of Reverend Tryon Eichelberger and the burglary of his home at night. See Magazine v. State, 361 S.C. 610, 606 S.E.2d 761 (2004). Furthermore, the indictments correctly stated the date of the murder and burglary in the first degree and were sufficient. State v. Gentry, 363 S.C. 93 102 103 610 S.E.2d 494 500 (2005); Locke v. State 341 S.C. 54, 533 S.E.2d 324 (2000);

State v. Jones, 333 S.C. 6, 501 S.E.2d 324 (1998); Granger v. State, 333 S.C. 2, 507 S.E.2d 322 (1998); State v. Wade, 306 S.C. 70, 409 S.E.2d 780 (1991); State v. Munn, 292 S.C. 497, 351 S.E.2d 461 (1987); State v. Hardee, 279 S.C. 409, 308 S.E.2d 21 (1983); State v. Tabory, 262 S.C. 136, 202 S.E.2d 852 (1974); State v. McIntire, 221 S.C. 504 71 S.E.2d 410 (1952); State v. Perry, 87 S.C. 535, 70 S.E. 304 (1911). Therefore, even if any error in the arrest warrants, the error was cured by the indictments. State v. McCoy, 255 S.C. 160, 177 S.E.2d 601 (1970); Thompson v. State, 251 S.C. 593, 164 S.E.2d 760 (1968): State v. Swilling, 246 S.C. 144, 142 S.E.2d 864 (1965); State v. Walker, 232 S.C. 290, 101 S.E.2d 826 (1958). As a result, Petitioner has failed to prove either prong of the Strickland analysis. Counsel was neither deficient for not objecting to the service of the arrest warrants nor has Petitioner shown any resulting prejudice. Strickland. Even had counsel objected or moved to quash the warrants on this basis, the result of Applicant's proceeding would not have been different as Applicant was tried and convicted on the valid indictments. Strickland. The objection to the arrest warrants would have been overruled. As a result, Applicant has failed to show resulting prejudice. Strickland.

App. 1594-96.

Respondent moves for summary judgment, arguing there is no factual or legal merit to Petitioner's Ground Three claim as Petitioner was tried and convicted on two valid indictments. ECF No. 26 at 115-17, 135-36. Respondent states Petitioner was on adequate notice of the charges against him and is not entitled to federal habeas relief. Id. at 136.

In his response to summary judgment, Petitioner does not address the PCR court's decision on his Ground Three Claim. ECF No. 31. Rather, Petitioner attacks the evidence that was presented at his trial and argues he is actually innocent of his convictions. Id.

The undersigned finds the PCR court reasonably found, based on the record before it, that Petitioner failed to prove trial counsel's failure to object to the arrest warrants was ineffective assistance of counsel. The PCR court analyzed South Carolina state law and found that even if Petitioner was served with an arrest warrant containing an incorrect date for the murder and burglary, the subsequent indictment cured any alleged error in the arrest warrant. The PCR court noted that the indictment correctly stated the date of the murder and burglary in the first degree and was sufficient. A federal court will not review a state court's interpretation of its own law. See Weeks v. Angeleone, 176 F.3d 249, 262 (4th Cir. 1999). Further, as a matter of federal constitutional due process, a criminal defendant is entitled to notice of the charges against him so that he can prepare a trial defense. See Hartman v. Lee, 283 F.3d 190, 195 n.5 (4th Cir. 2002). Counsel explained during the PCR hearing that there were no problems with the indictments in this case. As such, Petitioner's trial counsel was not required to make a frivolous objection. Petitioner received fair notice of the charges against him, accordingly, the undersigned recommends the court find the PCR court's decision denying relief on this claim was neither contrary to, nor an unreasonable application of, clearly established federal law. The undersigned recommends the court dismiss Petitioner's Ground Three claim.

4. Ground Four

Petitioner claims his trial counsel was ineffective because he should have objected to the solicitor's closing argument in which she argued: (a) Petitioner caused the head injury to the victim depicted in the autopsy photo admitted in evidence, (b) Petitioner wielded the murder weapon like a baseball bat, and (c) Petitioner committed the crime. ECF No. 1-1 at 8. Petitioner argues the solicitor's false statements misled the jury about what happened at the victim's house on May 3, 2009. Id. at 4.

At the PCR hearing, Petitioner discussed the closing statement and stated his counsel failed to object when the solicitor showed the jury “explicit photographs of the victim with his head split open by an autopsy.” App. 1523. Petitioner also testified his counsel did not object when the solicitor stood up and said Petitioner's blood was at the crime scene although his “blood was never at that crime scene, according to the DNA expert, Jay Barron.” Id. Petitioner stated his counsel should have also objected when the solicitor stood up in front of the jury and said Petitioner took a metal bar and “struck [the victim] with that metal bar like he was playing baseball.” App. 1524. Petitioner testified he was not identified as being in the neighborhood or at the victim's house that night, and his DNA was not on the metal bar. Id.

Strickler was asked about whether he objected to the explicit autopsy photos that were shown to the jury and he stated the record will speak for itself as to whether he made any objections and he

firmly believe[d] that we dealt with objections to the admissibility of the photos prior to their admission and that they were -- we were ruled against, as far as the admissibility. And again, the record's going to reflect that.

App. 1541-42. Strickler testified he did not recall the solicitor stating during her closing that Petitioner “used the pipe like a baseball bat,” but that would not surprise him. App. 1542. Stricker stated he believed “that's probably her summation of what the evidence showed as opposed to there - being any testimony regarding that.” Id.

The PCR court dismissed this claim explaining:

At the PCR hearing, Applicant alleged counsel should have objected to the Solicitor's closing argument: (a) that Applicant caused the head injury to the victim depicted in an autopsy photograph that was admitted in evidence (b) when the Solicitor held up the winch rod before the jury and argued Applicant wielded the murder weapon like a baseball bat; and (c) when the Solicitor argued Applicant committed the crimes against the victim. Counsel testified at the PCR hearing that he did not object to the Solicitor's closing arguments above because the Solicitor is allowed to argue the evidence and the reasonable inferences therefrom; and that is what the Solicitor was doing at these points in her closing argument. Counsel testified the Solicitor was not referencing the testimony of one (1) particular witness, in this regard, as Applicant alleges, but arguing all of the evidence in the case and the reasonable inferences therefrom. As a result, counsel testified these arguments of the Solicitor were not objectionable and an objection would have been overruled.

This Court had the opportunity to observe the testimony of counsel and Applicant on this issue. This Court also had the opportunity to review the closing argument of the Solicitor. This Court finds counsel's testimony on this issue to be credible and supported by the record and case law. And, this Court finds Applicant's allegations in his testimony in this regard are not credible and without merit

Courts must review an alleged improper argument in the context of the entire record. State v. Patterson, 324 S.C. 5, 482 S.E.2d (1997); State v. Rice, S.E.2d, 2007 WL 2914651 (Ct. App. Oct. 5, 2007), citing Patterson. Considerable latitude is generally allowed in matters of drawing and arguing inferences and deductions from evidence. Johnson v. Life Ins. Co. of Ga., 227 S.C. 351, 88 S.E.2d 260 (1955). A lapse of good taste will rarely constitute prejudicial error nor will robust language introduce an arbitrary factor. State v. Chaffee, 285 S.C. 21, 328 S.E.2d 464 (1984). Arguments must be confined to the evidence in the record and reasonable inferences therefrom, although failure to do so, will not automatically result in reversal. State v. Huggins, 325 S.C. 103, 481 S.E.2d 114 (1997). A new trial will not be granted unless the comments so infected the trial with unfairness so as to make the resulting conviction a denial of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868 (1974); State v. Bennett, 369 S.C. 219, 632 S.E.2d 281(2006); Patterson. “[W]hether or not the particular arguments are so prejudicial as to constitute reversible error depends upon the nature of the utterances and the circumstances under which they were made.” Bennett, quoting South Carolina State Highway Dep't v. Nasim, 255 S.C. 406, 179 S.E.2d 211 (1971).

The Solicitor may argue the evidence in the record and the reasonable inferences from that evidence, especially in a circumstantial evidence case. State v. Cooper, 334 S.C. 540, 514 S.E.2d 584 (1999); State v. Copeland, 321 S.C. 318, 468 S.E.2d 620 (1996); State v. Linder, 276 S.C. 304, 278 S.E.2d 335 (1981). The Solicitor may argue his version of the testimony and comment on the weight to be given to the testimony of the witnesses. State v. Raffaldt, 318 S.C. 110, 456 S.E.2d 390 (1995): State v. Allen, 266 S.C. 468, 224 S.E.2d 881 (1976); State v. Pitts, 256 S.C. 420, 182 S.E.2d 738 (1971). The Solicitor may argue that the evidence shows beyond a reasonable doubt that the defendant is guilty of the crimes charged. State v. Allen, 266 S.C. 468, 224 S.E.2d 881 (1976)(a prosecutor may argue to a jury to return a verdict that she conceives it is their duty to return based upon the evidence presented in the trial); State v. Caldwell, 330 S.C. 494, 388 S.E.2d 816 (1990)(a prosecutor may argue her case vigorously and give her version of the testimony, and what weight or credibility should be given to the evidence); State v. Cannon, 220 S.C. 614, 93 S.E.2d 880 (1956). It is also proper for the Solicitor in closing arguments to hold up an exhibit to the jury or play tapes or recordings admitted into evidence. State v. Tyner, 273 S.C. 646, 258 S.E.2d 559 (1979); State v. Mishoe, 198 S.C. 215, 17 S.E.2d 142 (1941). In closing argument, the prosecutor may take an alleged murder weapon and demonstrate the use of such weapon and how it might have been used in the murder. State v. Brisbon, 323 SC. 324, 474 S.E.2d 433 (1996); State v. Mclver, 238 SC. 401, 120 S.E.2d 393 1961). See also State v. Ash, 526 N.W.2d 473 (ND 1995)(having sheriff lie on floor while counsel held rifle to ear, consistent with pathologist testimony, not improper demonstration of how death occurred); People v. Bush, 430 N.E.2d 514 (Ill. App. 1981)(closing argument demonstration using live model held proper); State v. Kroll, 558 P.2d 173 (Wash. 1976) (demonstration by prosecutor using one other than accused not improper where prosecutor was showing jury manner in which the crime might have been committed prosecutor was demonstrating a reasonable inference from the

evidence, the trial court placed restrictions on the demonstration, and the jury was instructed the demonstration was not evidence); People v. Caldaralla, 329 P.2d 137 (Cal. 1958)(closing argument demonstration using live model held proper); Herron v. Commonwealth, 64 SW 432 (Ky. 1901)(closing argument demonstrating using live model held proper); Jacob Stein, Closing Arguments 2d, Section l:64, ©, 2008 Thompson Reuters West.

In the present case, in her closing argument, the Solicitor was not referencing or arguing the testimony of a specific witness that saw Applicant kill the victim, but arguing based on all of the evidence in the case, including the circumstantial evidence, Applicant was the person who committed the crimes. This was proper argument based on all of the evidence in this case. Further, the Solicitor's demonstration with the winch bar how Applicant killed the victim was entirely proper based on all of the evidence in the case. Brisbon; McIver. The argument was not objectionable and any objection would have been overruled. As a result, counsel was not deficient in failing to object to this portion of the Solicitor's closing argument, nor was Applicant prejudiced by any failure to object. Strickland v. Washington.

App. 1596-99.

Petitioner fails to address the PCR court's ruling on this ground in his Response in Opposition to Summary Judgment. ECF No. 31. In his Response, Petitioner reviews the evidence at his trial, including the lack of DNA evidence and eyewitness testimony placing him at the scene of the crime, and argues he is innocent of the burglary and murder of the victim. Id.

The undersigned finds the PCR court's conclusions concerning the Ground Four ineffective assistance of counsel claim is supported by the evidence in the record. Petitioner has failed to show his trial counsels' actions in failing to object to the referenced statements in the closing argument were professionally unreasonable. The undersigned agrees with the PCR court that it is generally permissible for the prosecutor to summarize the evidence and present any reasonable inferences that can be made from the evidence. The undersigned notes that the evidence presented at trial, including direct testimony and cross-examination, could have supported the inferences drawn by the solicitor in her closing argument. Even if the arguments identified by Petitioner were improper, the undersigned finds the solicitor's statements did not “infect[] his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982). As the Fourth Circuit explains, “Closing arguments . . . are prone to exaggeration [and] we rely on juries and the adversarial process to place them in perspective.” United States v. Sutherland, 921 F.3d 421, 429 (2019). Petitioner's ineffective assistance claim also fails to meet Strickland's prejudice prong. Petitioner has failed to show that there is a reasonable probability that the outcome of his case would have been different had counsel made the objections Petitioner claims were necessary to provide effective assistance. The undersigned recommends Respondent be granted summary judgment on his Ground Four claim.

5. Ground Five

Petitioner alleges the State used improper scientific DNA extraction procedures in obtaining Petitioner's DNA from inside the white sock admitted in evidence. ECF No. 1-1 at 8. Petitioner alleges

The first DNA test for touch DNA was negative on the Applicant. This was May of 2009. 11 months later (3-12-10) a procedure was used to extract touch DNA when the protocol manual for extracting procedures does not list the procedure used for obtaining touch DNA. There is no manual listed for extracting touch DNA. Also expert testified 3 people's touch DNA was present on the socks including a suspect named David Williams. He was also positively identified by the witness Tamika Ashford the same night minutes after the incident happened at the victim's house. He was also arrested that same night by the uniform police in the neighborhood running from the police on the crime scene. Minutes after the incident happened.

Id. at 6.

During the PCR hearing, Petitioner testified about the procedures used by the State in analyzing the DNA in this case. Petitioner stated:

And the pair of socks that they used to arrest me with was a pair of socks I left in the trash can at the laundry mat a block away from where the incident happened. The suspect, David Williams, DNA is on the socks. But when they first tested the socks, that same month it happened, my DNA didn't come back and his DNA didn't come back.

Because they use the DNA-protocol-procedure manual, which is governed by United States Science Federation. They are a federally-funded program that make all the rules for the protocol for all the police departments in the United States of America and law enforcement to go by concerning extracting DNA. And the procedures of using DNA, when they first tested the socks, they tested the socks with the protocol-manual extracting procedures: cutting, clipping, and swabbing.

Only thing came back was a touch of the victim blood. They waited ten months later. And they used another test that's not in the protocol-procedure manual, and they scraped the socks.

And when they scraped the socks, during trial my lawyer asked the DNA, “Is that -- is that protocol procedure in the manual?”

He said, “No.” He do what he want to do.

My -- that's when my lawyer told him, “That procedure is illegal.”

You can only determine whose DNA was in them, but you can't arrest nobody because the FBI, if they wanted to use it because that technique is not in the manual, the FBI or federal government couldn't use it. So when they did it, they found out that David Williams' DNA was also in the socks, Your Honor. And he was the person that witness said left out the yard and went across the road in the direction where they were found, along with two more other people touch DNA that was in the socks.

App. 1533-34.

Ground Five challenges the trial court's admissibility rulings on the DNA evidence. Because these challenges were not raised in Petitioner's direct appeal, these claims were not fairly presented to the South Carolina appellate courts, and are procedurally barred from federal habeas review. See Coleman, 501 U.S. 722 (stating that if an issue is not properly raised to the state's highest court and would be procedurally impossible to raise now, then it is procedurally barred from federal habeas review). The Ground Five claims are also procedurally barred because they address state law errors concerning the admissibility of evidence. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“Today, we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”). The undersigned recommends Respondent be granted summary judgment on Petitioner's Ground Five claim.

6. Ground Six

Petitioner argues his appellate counsel was ineffective for not raising on appeal the admissibility of Tamika Ashford's testimony and the admissibility of the stolen truck from Camden. ECF No. 1-1 at 7-8.

Petitioner testified he spoke with his appellate counsel concerning the issues she was going to raise in his appeal and she informed him she was going to raise the issue concerning Michelle Perry's testimony about seeing Petitioner at church three months before the incident. App. 1513. Petitioner says he told his appellate counsel that was a dead issue and he wanted her to raise the issue concerning Tamika Ashford's testimony and the admissibility of the stolen truck, but she did not raise these issues. App. 1514-16. When it was pointed out at the PCR hearing that his appellate counsel did raise the admissibility of the stolen truck in his appeal, Petitioner stated “If she brought that -- up on the appeal, I wasn't informed of it.” App. 1518.

Appellate Counsel testified she spoke with Petitioner on the phone about his appeal and “he had a lot of information that he wanted to share with me about his case. He was very involved - in what he wanted.” App. 1555. Counsel stated they “discussed things [she] did not believe would be meritorious on direct appeal. I think we probably had some disagreement about those issues.” App. 1556. Counsel testified she reviewed Petitioner's transcript and identified two issues she believed were the most meritorious: (a) an identification based on a single photo lineup, and (b) the admissibility of evidence relating to the theft of a truck. App. 1556-57. Counsel testified she believed she explained this to Petitioner. App. 1557. Counsel stated it was possible Ashford's testimony could have been an issue she could have raised on appeal, but she chose not to. App. 1558. When asked why she did not bring up the Ashford testimony in her appeal, counsel stated

I know Mr. Strickler testified that he believe[d] because she could not identify Mr. McGee, that her testimony was irrelevant. I'm not sure that the appellate court would have reversed the case based on irrelevance.

And frankly, I found her testimony was helpful. She had identified another individual as the person that was at the home I - I thought in the grand scheme of things and looking at the entire case, her testimony was more helpful than hurtful.

App. 1559. When asked why she did not just object to the in-court identification of Petitioner, counsel stated that she was not sure she ever made an in-court identification, but counsel testified

But, you know, that's fodder for cross-examination, and the fact --- and --- and I think that trial counsel cross-examined her extensively about her prior identification of Mr. Williams and the wishy-washiness of the photo lineups, including Mr. McGee.

Id. Counsel stated she picked the two issues on appeal that she thought were the most important, and she is not aware of what other issues she should have raised. App. 1560.

The PCR court denied this claim, as follows:

Applicant specifically alleges his appellate counsel, Katherine Hudgins, was ineffective in failing to raise the issue of the admissibility of Tamika Ashford's testimony on direct appeal. This Court had the opportunity to observe the testimony of Ms. Hudgins and Applicant on this issue. This Court also had the opportunity to review Ms. Ashford's testimony before Judge Newman and before the jury. This Court finds that Ms. Hudgins testimony on this issue was credible and Applicant's testimony on this issue was not credible. This Court also finds Ms. Hudgins testimony is corroborated by the record and her appellate brief.

As the record reflects, Tamika Ashford was an eyewitness [and ear-witness) to the facts surrounding the murder of Reverend Eichelberger, the victim in this case. See State v. McGee, 408 S.C. 278, 758 S.E.2d 730 (Ct. App. 2014). Ms. Ashford was present in Reverend Eichelberger's home when she and the victim heard a noise at the back of the victim's house. Ashford saw the victim go to the back of the house to investigate the noise and then heard the victim state out loud to someone in the back of the house: ‘how did you get in here.” She then heard noises similar to a scuffle or struggle and Ms. Ashford ran from the home and to her car and drove around the block and upon returning to the victim's residence saw an individual, standing on the victim's front porch or in the victim's front yard who was holding

a metal pipe in his hand and wearing what appeared to be white gloves. Ms. Ashford called the police and waited nearby until police arrived. While waiting nearby, Ms. Ashford saw the same individual walking down Farrow Road but without the metal pipe or the white gloves on. Ms. Ashford returned to the victim's home when police arrived and gave them a general description of the suspect, Ms. Ashford did not make an in-court identification of Applicant. It was brought out that she actually identified the wrong person in a show-up procedure shortly after the crime and then picked Applicant's picture out of a line-up at a later date as one (1) of two (2) persons in the line-up who looked most like the person she saw in the victim's yard the night of the murder. She stated Applicant's picture looked most like the perpetrator of the two (2) individuals she identified in the photo line-up; however, again she did not make a positive identification of Applicant and did not make an in-court identification of Applicant. She testified Applicant met the general physical characteristics of the person she saw on the victim's front porch.

As Ms. Ashford's testimony surrounding the events the night of the victim's assault were relevant and admissible for several different reasons, appellate counsel was not ineffective for failing to raise the admissibility of her testimony on direct appeal. Jones v. Barnes; Strickland v. Washington. See also Hough v. Anderson, 272 F.2d 878 (7^th Cir. 2001) (ineffective assistance of counsel claims based on a failure to object to the admission of certain evidence are tied to the admissibility of the underlying evidence; if the evidence was admissible in any event, then the claims fails both-prongs of Strickland as it was neither deficient nor prejudicial not to object). Ms. Ashford was an eyewitness [and ear witness] to the events surrounding the victim's murder and could describe for the jury exactly what she saw and heard and describe for the jury what the man she saw in the victim's front yard looked like, what he was wearing, and what he was holding. This testimony was highly relevant, probative, and admissible to the State's case on both murder and burglary in the 1^st degree. Her testimony of how Reverend Eichelberger was murdered was corroborated by other evidence presented by the State in its case in chief, including the discovery of a metal pipe [a winch rod] in a neighbor's yard which contained the victim's blood and the discovery of two (2) white socks near a light pole in a nearby vacant lot that also contained both the victim's blood and also Applicant's DNA inside the white socks. And, Ms. Ashford established at what time Reverend Eichelberger was murdered and that the murder occurred in his home in Richland County. Simply because she could not positively identify Applicant as the perpetrator does not make her testimony inadmissible. Her testimony was relevant and admissible on several different issues in the case and any objection to the admissibility of her testimony at trial was properly overruled by the trial judge, Judge Newman. Further, her testimony was so relevant and probative on these different issues that its probative value outweighed any prejudicial effect. Rule 403, SCRE. In fact, she was the only eyewitness to the crimes against Reverend Eichelberger.

On appeal, the South Carolina appellate courts would have reviewed Judge Newman's admission of Ms Ashford's testimony under an abuse of discretion

standard. See State v. McWee, 433 S.C. 307, 472 S.E.2d 235 (1996)(whether evidence is relevant and admissible is in the sound discretion of the trial judge); State v. Babb, 299 S.C. 451, 385 S.E.2d 827 (1989)(a trial judge's determination of admissibility of evidence will not be disturbed on appeal absent a showing of abuse of discretion that has resulted in prejudice to the complaining party). And great deference is given to a trial judge's decision regarding the comparative probative value and prejudicial effect of evidence with the judgment of the trial judge only being reversed in exceptional circumstances. State v. Douglas, 359 S.C. 187, 597 S.E.2d 1 (Ct. App. 2004), affirmed in part, reversed in part 369 S.C. 424, 632 S.E.2d 845 (2006); State v. McLeod, 362 S.C. 73, 606 S.E.2d 215 (Ct App. 2004); State v. Horton, 359 S.C. 555, 598 S.E.2d 279 (Ct. App. 2004); State v. Adams, 354 S.C. 361, 580 S.E.2d 785 (Ct. App. 2003).

As a result, appellate counsel was not ineffective in failing to raise the admissibility of Ms. Ashford's testimony on direct appeal. Having reviewed the appellate court records, including the direct appeal briefs, the issue Applicant alleges appellate counsel should have raised on appeal is not clearly stronger than the issues that were raised by appellate counsel for the reasons stated previously above. Smith v. Robbins, 528 U.S. 259, 285 (2000); Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000). Nor has Applicant established prejudice from appellate counsel's performance. Because Ms. Ashford's testimony was relevant and admissible, its probative value outweighed any prejudicial effect and given the standard of review on appeal, there is no reasonable probability Applicant would have prevailed on appeal had appellate counsel raised this issue. Id.

Applicant also alleges appellate counsel was ineffective in failing to raise on direct appeal the admissibility of the theft of the truck from Camden. As this issue was raised on direct appeal by appellate counsel and decided by the South Carolina Court of Appeals adverse to Applicant, See State v. McGee, 408 S.C. 278, 758 S.E.2d 730 (Ct. App. 2014), there is absolutely no merit to this allegation and it must be denied and dismissed with prejudice. Smith v. Robbins; Bell v. Jarvis.

App. 1599-1603.

Petitioner cannot satisfy the Strickland test. Petitioner cannot show appellate counsel's failure to raise claims concerning the admissibility of Ashford's testimony was objectively unreasonable, or that there was a reasonable probability Petitioner would have prevailed on this claim if it was raised. Petitioner has not shown that the state court's analysis of this issue misapplied clearly established federal law or, even if there was an error, that it was unreasonable. See Williams, 529 U.S. at 410. Based on the foregoing, Petitioner is not entitled to federal habeas relief on this ground, and the undersigned recommends Ground Six be dismissed.

V. Conclusion and Recommendation

Therefore, based upon the foregoing, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 27, be GRANTED and the Petition be DENIED.

IT IS SO RECOMMENDED.

The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); See Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk United States District Court Post Office Box 2317 Florence, South Carolina 29503

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).