Parker v. Warden, Goodman Corr. Inst.

Full title: Kerwin S. Parker, Petitioner, v. Warden, Goodman Correctional Institution…

Court: United States District Court, D. South Carolina

Date published: Jan 10, 2024

C. A. 1:23-251-MGL-SVH (D.S.C. Jan. 10, 2024)

Opinion

C. A. 1:23-251-MGL-SVH

01-10-2024

Kerwin S. Parker, Petitioner, v. Warden, Goodman Correctional Institution, Respondent.

SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE.

REPORT AND RECOMMENDATION

SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE.

Kerwin S. Parker (“Petitioner”) was incarcerated in the South Carolina Department of Corrections pursuant to orders of commitment by the Lexington County Clerk of Court.¹Proceeding pro se, Petitioner 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. 20, 21]. The motion having been fully briefed [ECF Nos. 43, 45, 47], it is ripe for disposition.

1 Petitioner was released November 1, 2023. [ECF No. 44]. However, there is no indication based on the record before the court that Petitioner's release has rendered his petition moot. See, e.g., Broughton v. State of N.C. , 717 F.2d 147, 148-49 (4th Cir. 1983) (“Where the criminal conviction, for example, results in the continued denial of important civil rights, such as the right-to-vote or the right to be considered for jury duty, the claim for habeas relief will remain a live controversy even after the prisoner has been released from custody.”) (citing Carafas v. LaVallee, 391 U.S. 234, 237 (1968)).

Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted.

I. Factual and Procedural Background

In April 2007, Petition was indicted for murder (2007-GS-32-1540), assault and battery with intent to kill (“ABWIK”) (2007-GS-32-1542), and possession of a weapon during commission of a violent crime (2007-GS-32-1541) deriving from a shoot-out that occurred on November 20, 2006, where one victim suffered a femur fracture, one victim A.J. Wilson (“Wilson”) suffered paralysis, and one victim died of two gunshot wounds. [ECF No. 20-1 at 19, ECF No. 20-3 at 917-920, ECF No. 20-5 at 1131-32].²

2 As recounted by the post-conviction relief (“PCR”) court: Applicant was in a car with his half-brother, who alone had engaged in a physical scuffle with some of the victims earlier in the day. Later on, Applicant and the co-defendant drove over to the house of the victims and things escalated. [ECF No. 20-5 at 1131-32 (citations omitted)]. As relevant here, Johnson testified at trial that he shot Wilson, and Wilson testified that Petitioner shot him.

Petitioner proceeded to a jury trial from September 14-18, 2009, before Circuit Court Judge Robin B. Stillwell. [ECF No. 20-1 at 1]. Petitioner was tried jointly with his co-defendant, also his younger half-brother, Curtis T. Johnson (“Johnson”), but was represented by separate counsel, with Jack Duncan, Esq., representing Petitioner. Id. at 2. Solicitor Donald V. Myers and Assistant Solicitor Colleen E. Dixon represented the State. Id. During the trial, the judge provided the following instruction to the jury:

Ladies and gentlemen, malice may be indicated from conduct showing a disregard for human life. An implication of malice may also arise when the deed is done with a deadly weapon. The implication is merely an evidentiary fact which may be taken into consideration along with any other evidence in this case ....In order to, in order to prove assault and battery with intent to kill, the State must prove, beyond a reasonable doubt, that the defendant committed an unlawful act of a violent nature to the person of another with malice aforethought ....

[ECF No. 20-3 at 851-52, 855-56].

The jury convicted Petitioner of ABWIK and the weapons charge, but acquitted him of murder. [ECF No. 20-3 at 876-77]. The jury convicted Johnson of voluntary manslaughter, two counts of assault and battery of a high and aggravated nature (“ABHAN”), and the weapons charge. Id.

On October 21, 2009, Petitioner was sentenced to twenty years for ABWIK and five years concurrent on the gun conviction. Id. at 913-14. Johnson was sentenced to thirty years for voluntary manslaughter, five years consecutive on the gun charge, and ten years concurrent on each ABHAN. Id.

Petitioner appealed his convictions and sentences to the South Carolina Court of Appeals (“Court of Appeals”). The case was remanded to the trial court for the purpose of reconstructing a portion of the record, with the reconstruction occurring on October 3, 2011. Id. at 923-25. Petitioner was represented in the appeal by Wanda H. Carter, Deputy Appellate Defender. See id. After reconstruction of the record, Petitioner filed an appellate brief raising the following issue:

The trial judge erred in instructing the jury that the use of a deadly weapon implied malice in connection with the assault and battery with intent to kill charge given at trial because this instruction was confusing and prejudicial in light of the submission of evidence that clearly reduced, mitigated, excused or justified appellant's actions in the case.

[ECF No. 20-6 at 4].³The State filed a responsive brief. Id. at 16.

3 In State v. Belcher, decided on October 12, 2009, after Petitioner's trial but before his sentencing, the South Carolina Supreme Court held that a “jury charge instruction that malice may be inferred from the use of a deadly weapon is no longer good law in South Carolina where evidence is presented that would reduce, mitigate, excuse or justify homicide.” 685 S.E.2d at 80304.

The Court of Appeals affirmed Petitioner's conviction and sentence in an unpublished opinion finding the issue raised-his Belcher challenge-was not preserved for appeal via objection below:

We affirm pursuant to Rule 220(b), SCACR, and the following authorities: State v. Belcher, 385 S.C. 597, 612, 685 S.E.2d 802,810 (2009) (providing the Belcher court's “ruling is effective in this case and for all cases which are pending on direct review or not yet final where the issue is preserved” (emphasis added)); State v. Price, 400 S.C. 110, 113-14, 732 S.E.2d 652, 653 (Ct. App. 2012) (recognizing an appellate court will “resolve the issue on preservation grounds when it clearly is unpreserved” (quoting Atl. Coast Builders & Contractors, LLC v. Lewis, 398 S.C. 323, 330, 730 S.E.2d 282, 285 (2012))); Rule 20(b), SCRCrimP (“Notwithstanding any request for legal instructions, the parties shall be given the opportunity to object to the giving or failure to give an instruction before the jury retires, but out of the hearing of the jury .... Failure to object in accordance with this rule shall constitute a waiver of objection.”); State v. Todd, 264 S.C. 136, 139, 213 S.E.2d 99, 100 (1975)

(“In cases too numerous to cite, . . . it has been held that the failure of a defendant to object to the charge as made or to request additional instructions, when the opportunity to do so is afforded, constitutes a waiver of any right to complain of errors in the charge.”); State v. Robinson, 238 S.C. 140, 150, 119 S.E.2d 671,676 (1961) (stating South Carolina does not permit a party disappointed by a verdict to employ a motion for a new trial to raise, for the first time, an error committed at trial (overruled on other grounds by State v. Torrence, 305 S.C. 45, 69 n.5, 406 S.E.2d 315, 328 n.5 (1991))).

Id. at 45-46. A petition for rehearing was denied December 27, 2013. Id at 52. Petitioner then filed a Petition for Writ of Certiorari in the South Carolina Supreme Court presenting the following argument:

The Court of Appeals erred in holding that the rule in Belcher was not properly preserved for appeal because petitioner's trial was bifurcated via a trial phase and sentencing phase, and since the Belcher issue was raised at the sentencing phase, then this meant that the case was “not yet final,” when the Belcher issue was “preserved” and it is “now pending” properly before this court for appellate review.

Id. at 53-60. On July 24, 2014, the South Carolina Supreme Court denied certiorari. Id. at 88. Remittitur was issued on August 2, 2014. Id. at 89.

Petitioner filed a post-conviction relief (“PCR”) application on September 2, 2014, raising numerous issues. [ECF No. 20-4 at 1012]. An evidentiary hearing was convened on November 10, 2016, before Circuit Court Judge R. Keith Kelly (“PCR Court”). Id. at 1034. Petitioner was represented by Aimee J. Zmroczek, and Assistant Attorney General Johanna Valenzuela represented Respondent. Id.

Petitioner's counsel outlined the claims at the PCR hearing as follows:

1. Ineffective assistance of trial counsel for the failure to move for immunity pursuant to the South Carolina Protection of Persons and Property Act;

2. Ineffective assistance of counsel in regards to the reconstruction hearing;

3. Ineffective assistance of trial counsel for the failure to object to statements by the prosecution during closing argument;

4. Ineffective assistance of trial counsel for the failure to object to a jury instruction issued pursuant to Belcher.

Id. at 1038-40, see also id. at 1038 (“The Applicant has made-in his original application, it fills up about two and a half pages of allegations. His counsel provided me this morning with a boiled down version of what the four main allegations are ”)]. On July 3, 2019, the PCR Court denied and dismissed the PCR application with prejudice. [ECF Nos. 20-4, 20-5 at 1126-46]. The order was filed on July 15, 2019. See id.

Petitioner appealed the denial of PCR by way of a Petition for Writ of Certiorari, a merits petition, filed in the South Carolina Supreme Court. [ECF No. 20-7]. Petitioner was represented by Kathrine H. Hudgins, Esq., Appellate Defender with the South Carolina Commission on Indigent Defense. See id. Petitioner raised the following issue on appeal from the denial of PCR:

Did the PCR judge err in refusing to find trial counsel ineffective for failing to object to the judge's instruction to the jury that

malice could be inferred from the use of a deadly weapon when there was evidence that would have reduced the charge from assault and battery with intent to kill to assault and battery of a high and aggravated nature and counsel was aware of the challenge to the implied malice charge decided in State v. Belcher, a case that was decided before Petitioner was sentenced but was pending at the time the judge instructed the jury?

Id. ⁴

4 In 2019, Burdette overruled Belcher's holding that the trial court could still charge the inference of malice from a deadly weapon when there was no evidence reducing or mitigating the offense. See State v. Burdette, 832 S.E.2d 575, 581 (S.C. 2019) (doing away with inference of malice from a deadly weapon in all cases), overruling Belcher and State v. Smith, 845 S.E.2d 495 (S.C. 2020).

The petitioner for writ of certiorari was denied on October 24, 2022 [ECF No. 20-10]. The remittitur was issued on November 10, 2022, and filed in the Lexington County Clerk's Office on November 16, 2022. [ECF No. 2011].

II. Discussion

A. Federal Habeas Issues

Petitioner raises the following grounds in his federal habeas petition:

Ground One: There was insufficient evidence to convince a rational trier of fact beyond a reasonable doubt that the Petitioner committed Assault and Battery with Intent to Kill to support a valid conviction, which the state did not prove beyond a reasonable doubt. This violated Petitioner's 5th and 14th Amendment rights of due process of the United States Constitution.

Supporting Facts: The Petitioner's defense at trial was “Mere Presence” because he was there at the time of the

incident when his co-defendant Curtis T. Johnson acted in Defense of Another and Self-Defense to save their lives. The Petitioner is truly innocent because there was insufficient evidence presented at trial to convince a rational trier of fact that the Petitioner committed Assault and Battery with Intent to Kill beyond a reasonable doubt . ...

Ground Two: The state court erred when it denied Petitioner's issue: ‘The trial court erred in instructing the jury with regard to the Assault and Battery with Intent to Kill charge that an implication of malice may arise from the use of a deadly weapon', when trial counsel raised a new trial motion during Petitioner's sentencing hearing objecting to the charge because Petitioner's case was not final pursuant to Griffith v. Kentucky, 479 U.S. 314, 328 (1987). This violated Petitioner's 5th and 14th right of due process of the United States Constitution.

Supporting Facts: At Petitioner's sentencing hearing Petitioner's trial counsel made a motion for a new trial pursuant to State v. Belcher, 685 S.E.2d 802 (2009) on the grounds that: “on October 12, 2009, the South Carolina Supreme Court indicated they had carefully scrutinized the historical antecedent to deadly weapon in a prosecution for murder and/or assault and battery with intent to kill. The Supreme Court held that that was no longer good law in South Carolina where evidence is presented that would reduce, mitigate, excuse, or justify the homicide. And the remedy granted was to remand for a new trial .... the decision in this case here is not final until sentencing. The only remedy that is available to Mr. Parker would be granting of a new trial ....

Ground Three: Trial counsel was ineffective for failing to motion for acquittal during Petitioner's sentencing hearing, or file a post-trial motion after the sentencing hearing, for an acquittal when the trial court declared the jury verdict a “Compromise Verdict,” any sentence the court gave Petitioner would not serve justice, and Petitioner should not look to court's sentence for justice. This violated

Petitioner's 5th, 6th, and 14th Amendment rights of effective assistance of counsel, and Due Process Rights of the U.S. Constitution.

Supporting Facts: During Petitioner's sentencing hearing the trial court declared the jury's verdict a “compromise verdict,” any sentence the court gave Petitioner would not serve justice, and Petitioner should not look to the court's sentence for justice. (Tr. R. p. 889, ln. 5, 21-25), (Tr. R. p.911, In. 1 - p. 913, In. 21) When the trial court made this declaration trial counsel should have motioned during the hearing, or filed a post-trial motion after the hearing, pursuant to Rule 29 of the South Carolina rules of Criminal Procedure, for an acquittal of all Petitioner's convictions . . .

.

Ground Four: Trial counsel ineffective for failing to cross-examine and impeach witnesses with relevant exculpatory evidence. This violated Petitioner's 5th, 6th, and 14th Amendment rights of effective assistance of counsel, right to confrontation of witnesses against him, right to have compulsory process for obtaining witnesses in his favor, and due process rights of the U.S. Constitution.

Supporting Facts: Trial counsel was ineffective for not cross-examining and impeaching witness Rebekah Fleming at trial with relevant evidence which was favorable, exculpatory, and supportive of Petitioner's innocence for his Mere Presence defense. Trial counsel cross-examined Rebekah about a letter she wrote Petitioner's co-defendant .

....

Ground Five: Trial counsel ineffective for failing to pretrial interview and investigate the witnesses and attackers. This violated Petitioner' 5th, 6th, and 14th Amendment rights of the U.S. Constitution.

Supporting Facts: In Petitioner's case there is documented Interview Report, which has Private Investigator David M. MacDougall, for the Defense, interviewing Yolanda Fleming Spencer (Yoland is old sister of Amy and Rebekah

Fleming). This interview report states .... Yolanda said that “Amy is coming around and realizes that she needs to tell the truth and not shade it to get back at Curtis....”

Ground Six: Trial counsel was ineffective for failing to object to erroneous prejudicial and burden shifting jury instructions, and failed to motion for a mistrial because Petitioner was denied a fair trial. This violated Petitioner's 5th, 6th, and 14th Amendment rights of Due Process and effective assistance of counsel of the U.S. Constitution.

Supporting Facts: Trial counsel for Petitioner was ineffective for erring in failing to object to erroneous, prejudicial, and burden shifting jury instructions which deprived Petitioner of Due Process rights of law and effective assistance of counsel because of the following jury instructions which should have been objected to by trial counsel.

(1) Trial counsel was ineffective for failing to object to the criminal intent charge that erroneously stated “criminal intent can arise from action or failure to act. It may also arise from negligence, [recklessness], or an indifference to duty or consequences that is considered by the law to be the equivalent of criminal intent.” ....

(2) Trial counsel was ineffective for failing to object to the trial judge's erroneous malice instruction which stated, “It is the intentional doing of a wrongful act without just cause or excuse and with the intent to inflict an injury, or under certain circumstances that the law will implicate an evil intent.” ....

(3) Trial counsel was ineffective for failing to object to the jury charge that erroneous interpretation of the jury instruction of assault and battery of a high and aggravated nature (ABHAN), when the instruction was erroneous, prejudicial, and burden shifting to the Petitioner. The ABHAN charge stated, “Assault and battery of a high and aggravated nature includes all the elements of assault and battery with intent to kill except malice [ .... ] The

difference between assault and battery with intent to kill and assault and battery of a high and aggravated nature is the presence of or the absence of malice.” ....

(4) Trial counsel was ineffective for not objecting to the trial courts mutual combat charge, since the instruction was burden shifting, highly prejudicial to the petitioner's mere presence defense and denied Petitioner his rights of due process and a fair trial .... Trial counsel erred when not objecting because there was no evidence that Petitioner acted in mutual combat ....

(5) Trial counsel was ineffective was failing to object to the jury charge that erroneously stated that, “Now, we're at the point where I am about to give you the case and let you begin your consideration, and I just want to make sure that you recognize and remember your oath. Your job and my job is to see that the trial and the verdict is fair and just to both parties....”

Ground Seven: Trial counsel ineffective for failing to object to Prosecutor's unconstitutional, burden shifting, and prejudicial closing argument statements; and failed to motion for a mistrial. This violated Petitioner's 5th, 6th, and 14th Amendment rights of effective assistance of counsel and due process rights of the U.S. Constitution.

Supporting Facts: During closing arguments the prosecutor made many improper statements [as cited by Petitioner to the trial record]. Trial counsel for Petitioner was ineffective for erring in not objecting to the Prosecutor's unconstitutional, burden shifting, and prejudicial closing argument statements; and failing to motion for a mistrial. Trial counsel's error prejudiced the Petitioner because the prosecutor's comments were a misstatement of the law and facts of Petitioner's case, burden shifting, unfair, appealed to the personal biases of the jurors, asked the jury to be advocates for the attackers, vouched for the credibility of the attackers and witnesses, and the statements were made to arouse to jurors passions and prejudices thus leading to convictions for improper reasons ....

[ECF No. 1-2 at 2, 7, 10-11, 14, 20-23, 35, see also ECF No. 43 at 33-34].

B. Standard for Summary Judgment

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. 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.

The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e).

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 (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (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 410. Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

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. Id. The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.

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.

28 U.S.C. § 2254.

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). 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 S.C. Code Ann. § 17-27-80, 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 (S.C. 2007).⁵Furthermore, strict time deadlines govern direct appeal 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.

5 In Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009), the Fourth Circuit found that, prior to the Supreme Court of South Carolina's November 5, 2007, decision in Marlar, South Carolina courts had not been uniformly and strictly enforcing the failure to file a motion pursuant to Rule 59(e), SCRCP, as a procedural bar. Accordingly, for matters in which there was a PCR ruling prior to November 5, 2007, the court will not consider any failure to raise issues pursuant to Rule 59(e) to effect a procedural bar.

The United States Supreme Court has held that “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process”-which includes “petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This opportunity must be given by fairly presenting to the state court “both the operative facts and the controlling legal principles” associated with each claim. Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (citing Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (internal quotation marks omitted)). That is to say, the ground must “be presented face-up and squarely.” Mallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994) (citation and internal quotation marks omitted).

The South Carolina Supreme Court has held that the presentation of claims to the state court of appeals without more is sufficient to exhaust state remedies for federal habeas corpus review. State v. McKennedy, 559 S.E.2d 850 (S.C. 2002); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454 (S.C. 1990). The McKennedy court held that In re Exhaustion had placed discretionary review by the South Carolina Supreme Court “outside of South Carolina's ordinary appellate review procedure pursuant to OSullivan.” 559 S.E.2d at 854. As such, it is an “extraordinary” remedy under OSullivan, “technically available to the litigant but not required to be exhausted,” Adams v. Holland, 330 F.3d 398, 403 (6th Cir. 2003).

Because the South Carolina Supreme Court has held that presentation of certain claims to the Court of Appeals without more is sufficient to exhaust state remedies, a claim is not procedurally barred from review in this court for failure to pursue review in the South Carolina Supreme Court after an adverse decision in the Court of Appeals.

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 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. Smith v. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986), superseded by statute on other grounds (AEDPA).

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 Matthews v. Evatt, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Teague v. Lane, 489 U.S. 288, 297-98 (1989); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)).

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 state courts 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 which 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 (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.

4. Ineffective Assistance of Counsel Standard

Generally, to prevail on an ineffective-assistance-of-counsel claim, a petitioner must show (1) that trial counsel's performance fell below an objective standard of reasonableness and (2) that a reasonable probability exists that but for counsel's error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). The court must apply a “strong presumption” that trial counsel's representation fell within the “wide range of reasonable professional assistance,” and the errors must be “so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Harrington v. Richter, 562 U.S. 86, 104 (2011). This is a high standard that requires a habeas petitioner to show that counsel's errors deprived him “of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.

D. Analysis

Respondent concedes that Petitioner is not time barred by the AEDPA statue of limitations. [See ECF No. 20 at 17]. However, Respondent argues that Petitioner's Grounds One through Seven are procedurally barred because he failed to properly exhaust his state court remedies. See id.

1. Belcher Challenge

On direct appeal, Petitioner presented a Belcher challenge that the Court of Appeals found was not preserved for appeal. On PCR, Petitioner presented four main issues to the court, including a Belcher challenge, but again only appealed the Belcher challenge. To the extent that Petitioner presents a Belcher challenge as presented on direct appeal and PCR, his challenge fails.⁶

6 In an abundance of caution, the court addresses Petitioner's Belcher challenge that was presented on direct appeal and on PCR. However, as noted by Respondent, as to Petitioner's Belcher challenge presented on direct appeal, found to not be preserved for appeal, “[i]f 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.” King v. Palmer, C/A No. 8:22-04636-HMH-JDA, 2023 WL 8475811, at *7 (D.S.C. Oct. 16, 2023) (citing Reed v. Ross, 468 U.S. 1, 11 (1984); Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995)), report and recommendation adopted, C/A No. 8:22-04636-HMH-JDA, 2023 WL 7384586 (D.S.C. Nov. 8, 2023). As also noted by Respondent, “[t]he only issue that is not procedurally barred because it was raised to the PCR Court and on appeal from PCR was the [ineffective assistance of counsel] claim for failure object to the inference of malice from a deadly weapon later overturned in Belcher. However, Respondent has carefully reviewed Petitioner's pleading and attachment and he is not raising that issue here.” [ECF No. 20 at 71].

Belcher held that “the ‘use of a deadly weapon' implied malice instruction has no place in a murder . . . prosecution where evidence is presented that would reduce, mitigate, excuse or justify the killing ....” 685 S.E.2d at 809. However, the South Carolina Supreme Court specifically stated that “[b]ecause our decision represents a clear break from our modern precedent, today's ruling is effective in this case and for all cases which are pending on direct review or not yet final where the issue is preserved” and “will not apply to convictions challenged on post-conviction relief.” Id. at 810 (citations omitted)).

This court has repeatedly rejected Belcher challenges brought in habeas petition, as found here, noting that the “Belcher decision represented a change in state law, and ‘it is not the province of a federal habeas corpus court to re-examine state-court determinations of state-law questions.'” Ward v. Warden of Lieber Corr. Inst., C/A No. 0:11-3277-RBH-PJG, 2013 WL 1187133, at *18 (D.S.C. Feb. 15, 2013) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)), report and recommendation adopted sub nom. Ward v. Warden of Leiber Corr. Inst., C/A No. 0:11- 03277-RBH, 2013 WL 1187112 (D.S.C. Mar. 20, 2013); see also Clea v. Warden of Kirkland Corr. Inst., C/A No. 9:13-817-JFA-BM, 2014 WL 1233035, at *2 (D.S.C. Mar. 25, 2014) (“the [Belcher] issue is a matter of state law and it is not in the province of a federal habeas corpus court to re-examine state court determinations of state law questions”); Byers v. Reynolds, C/A No. 2:11-00020-RMG, 2012 WL 170192, at *2 (D.S.C. Jan. 19, 2012) (same); Horton v. Warden, Kirkland Corr. Inst., C/A No. 9:12-2668-CMC-BM, 2013 WL 57703, at *1 n.1 (D.S.C. Jan. 4, 2013) (holding as to a Belcher challenge that “[t]he determination of when a change in state law becomes effective is purely a state law issue”); Smith v. Stevenson, C/A No. 6:09-456-MBS, 2010 WL 1257510, at *6 (D.S.C. Mar. 24, 2010) (same).

Indeed, even if the court were to consider Petitioner's challenge, he has failed to overcome the high burden applicable. As stated by the Supreme Court:

The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal. The question in such a collateral proceeding is whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process, not merely whether the instruction is undesirable, erroneous, or even universally condemned.

Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (citations and footnote omitted). Petitioner has failed to show the relevant instruction “so infected the entire trial that the resulting conviction violate[d] due process.” See id.

Likewise, Petitioner has failed to show by clear and convincing evidence that the PCR court reached an unreasonable factual determination of this issue given the evidence and record before it. As the PCR Court found as to Petitioner's Belcher challenge:

Applicant asserts trial counsel was ineffective for not objecting to the trial court's instruction to the jury regarding the inference of malice from the use of a deadly weapon. (PCR Tr, pp. 17-24; R. p. 716, 732). This Court finds Applicant's claim without merit.

Applicant's case went to trial in September 2009, which was approximately one month prior to the South Carolina Supreme Court's decision in State v. Belcher, 385 S.C. 597, 685 S.E.2d 802 (2009) (published Oct. 12, 2009). That opinion announced a wholly new rule of law concerning jury instructions on implied malice in trials for murder and ABWIK. It held “that where

evidence is presented that would reduce, mitigate, excuse or justify a homicide (or assault and battery with intent to kill) caused by the use of a deadly weapon, juries shall not be charged that malice may be inferred from the use of a deadly weapon.” Belcher at 612, 685 S.E.2d at 810. The court instructed retroactive application to “all cases which were pending on direct review or not yet final where the issue was preserved” at trial. Id. The Belcher court finally stated that the ruling “will not apply to convictions challenged on post-conviction relief.” Id (citing Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989).

Applicant argues that trial counsel was put on notice of the pendency of the Belcher issue through various CLEs and listervs but omitted any objection to the implied malice instruction until Applicant's sentencing hearing, which was after the issuance of Belcher and obviously after the conclusion of the jury trial. (PCR Tr. pp. 17-24, 40). Trial counsel, however, addressed BelcherS interim issuance at Applicant's sentencing hearing. At that time, trial counsel moved for a new trial, arguing that the jury instruction on implied malice had been improperly charged under the new Belcher opinion and that Applicant's case was not yet final. (R. pp. 748-51). In denying the motion, the trial court noted that the objection “would have been specious because [the preBelcher implied malice instruction] was well settled South Carolina law” at the time of Applicant's jury deliberations. (R. pp. 751-52). Appellate counsel testified at PCR that she raised the Belcher issue in Applicant's direct appeal because trial counsel argued its applicability at the sentencing hearing and that she felt as though trial counsel's argument preserved the Belcher issue because the case was “alive pending direct appeal or direct review.” (PCR Tr. pp. 81, 88). In affirming Applicant's convictions and sentence, the South Carolina Court of Appeals found that the Belcher objection was not made until after the jury retired from deliberations and was thus not preserved for review. State v. Parker, 2013-UP-403, 2013 WL 8541548 at *1 (S.C. Ct. App. filed Oct. 30, 2013).

This Court finds that trial counsel was not ineffective for failing to object to the implied malice instruction at any time prior to Applicant's sentencing hearing because, in the context of a PCR action, our courts have “never required an attorney to be

clairvoyant or anticipate changes in the law.” Teamer v. State, 416 S.C. 171, 183, 786 S.E.2d 109, 115 (2016). Trial counsel's presence at a CLE where another criminal defense attorney presented the Belcher issue as a basis for a potentially meritorious objection does not bind trial counsel to act in that manner at trial, nor does it render his performance deficient when the theory was not established as law in our State at the time of Applicant's jury trial. Kornahrens v. Evatt, 66 F.3d 1350, 1360 (4th Cir. 1995) (declining to find trial counsel's performance deficient when “he followed a longstanding and well-settled rule of South Carolina criminal law-even when that rule was under attack in the United States Supreme Court at the time of trial”); Honeycutt v. Mahoney, 698 F.2d 213, 216-17 (4th Cir. 1983) (deciding that trial counsel was not ineffective for failing to object to subsequently-overruled, but then long-standing, North Carolina law where such objection would have been based on a recent, non-binding First Circuit decision); Randolph v. Delo, 952 F.2d 243, 246 (8th Cir. 1991) (ruling that trial counsel was not ineffective by failing to raise Batson challenge two days before Batson was decided), cert. denied, 504 U.S. 920, 112 S.Ct. 1967 (1992). Trial counsel acknowledged as much, recognizing at PCR that he could not have, at that time, anticipated the change in the law. (PCR Tr. p. 38). Counsel otherwise acted to bring the Belcher holding to the trial court's attention at the first relevant point in time. There can be no finding of deficient performance on this allegation, as counsel did not act “outside the wide range of professionally competent performance.” Strickland, 466 U.S. at 687-89, 104 S.Ct. at 2064-65. This Court accordingly finds that absent any showing of deficient performance, Applicant cannot meet the Strickland standard, and DENIES and DISMISSES this final claim for relief.

[ECF No. 20-5 at 1142-44].

Petitioner has failed to show the PCR Court unreasonably applied federal law or made an unreasonable determination of the facts in finding counsel was effective. In determining whether trial counsel's performance was constitutionally deficient, “a court must indulge a strong presumption

that counsel's conduct falls within the wide range of reasonable professional assistance,” in order to avoid “the distorting effects of hindsight.” Strickland, 466 U.S. at 689.

2. Actual Innocence

All other grounds Petitioner asserts are procedurally barred on federal habeas review for failing to appeal the issues or claims to the State's appellate courts. The court cannot consider Petitioner's claims where he has not shown 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.

Petitioner cannot show actual innocence on this record. Bousley v. United States, 523 U.S. 614, 622 (1998) (holding miscarriage of justice is defined as actual innocence not legal innocence); Schlup v. Delo, 513 U.S. 298, 327 (1995) (same). As Respondent summarized and not addressed by Petitioner:

The victim A.J. [Wilson] was shot five (5) times, and A.J. identified Petitioner from his hospital room in Atlanta as the shooter that caused his injuries. A.J. was not involved in the earlier altercation on Monticello Rd. [with Johnson], and he also identified Petitioner at trial as the person who shot him. A.J. was paralyzed from the waist area down as one (1) bullet struck his spine. Mr. Hernandez, an independent eyewitness, also identified Petitioner by his clothing and haircut as the person who shot A.J. at least two (2) times while A.J. was begging for Petitioner not to shoot him. Another witness, Amy, saw Petitioner standing on the patio with a silver or gray pistol after A.J. was shot stating he

should kill all of them. Petitioner fled the scene on foot, and Mr. Hernandez saw Petitioner leave on foot carrying the pistol in his hand. Petitioner was captured at his home with the weapon used in the shootings. The gun was purchased by Petitioner. Ballistics matched the fired shell casings and bullets found at the scene to Petitioner's gun.

[ECF No. 20 at 20].⁷

7 Although Petitioner does not address the above evidence presented at trial, he does cite to other evidence, arguing that “[a]ll of this evidence collectively, scientifically, and ultimately prove that co-defendant Johnson” was responsible and Petitioner should not have been found guilty of shooting Wilson. [See ECF No. 1-2 at 2-4]. However, Petitioner discusses the evidence cited selectively. See id. For example, Petitioner argues that he tested negative for gunshot residue, whereas Johnson tested positive, “scientifically proving the Petitioner did not fire the weapon.” Id. at 3. However, evidence presented at trial was not so clear, including that the longer one waits to test for residue, the less will be found, that after six hours no residue will be found, that Petitioner was tested five hours after the incident in question, and that “[i]t [was] possible that, in that time period, gunshot residue could have been removed if a gun had been fired.” [ECF No. 20-3 at 565-66].

Based on the facts presented at trial, Petitioner shot A.J. with malice, which is all that is required in South Carolina for ABWIK, and he shot A.J. with a deadly weapon, resulting in his conviction on the gun charge. See State v. Foust, 479 S.E.2d 50, 51 (S.C. 1996) (holding that State must show a general intent that defendant acted with malice to obtain ABIK conviction, and overruling cases indicating that defendant had to possess specific intent to kill to be guilty of ABIK); State v. Fennell, 531 S.E.2d 512, 517 (S.C. 2000) (same); State v. Glenn, 492 S.E.2d 393, 398 (S.C. Ct. App. 1997) (same).

Petitioner cannot show that considering all the evidence, it is more likely than not that no reasonable juror would have convicted him. See Bousley, 523 U.S. at 623. Thus, Petitioner cannot show actual innocence.

3. Cause and Prejudice

a. Grounds One and Two

A “narrow” exception exists for state prisoners to raise unexhausted federal claims. Davila v. Davis, 137 S.Ct. 2058, 2068 (2017); see Martinez v. Ryan, 566 U.S. 1, 16-17 (2012). As stated, if a prisoner can show “cause” for a failure to exhaust and “prejudice” from the alleged violation of federal law, the court may excuse the procedural default. Davila, 137 S.Ct. at 2062. Under Martinez, a prisoner may establish cause where his PCR counsel was constitutionally ineffective in failing to raise and exhaust a claim of “ineffective assistance of trial counsel” where the State “effectively requires a defendant to bring that claim in state postconviction proceedings rather than on direct appeal.” Id. at 2062-63 (citing Martinez, 566 U.S. 1).

Although it appears Petitioner argues otherwise [see ECF No. 1-2 at 5]. as to cause and prejudice, Grounds One and Two are direct appeal grounds, and Martinez does not apply to direct appeal grounds. Instead, Martinez applies to ineffective assistance of PCR counsel in not raising an ineffective assistance of counsel claim at PCR-not ineffective assistance of direct appeal counsel or PCR appellate counsel. See Davila v. Davis, 582 U.S. 521, 529 (2017) (declining to “extend Martinez to allow a federal court to hear a substantial, but procedurally defaulted, claim of ineffective assistance of appellate counsel”); Brown v. Warden Lee Corr. Inst., C/A No. 2:18-01276-DCC, 2019 WL 4509190, at *5 (D.S.C. Sept. 19, 2019) (“With respect to the grounds found to be procedurally barred for failure to raise them to the Supreme Court of South Carolina in Petitioner's petition for writ of certiorari or on direct appeal, Petitioner has failed to establish cause. The Martinez exception does not extend to direct appeal claims or claims that PCR appellate counsel was ineffective.”) (collecting cases)).⁸

8 Additionally, Petitioner's Ground One and Ground Two are without merit where, as discussed above, sufficient evidence was presented at trial in support of finding Petitioner guilty of the ABWIK charge [see also ECF No. 20 at 26-32] and where, as already addressed by the court, Petitioner's Belcher challenge is without merit, see also id. at 33-35.

As to his remaining grounds, Petitioner asserts his PCR counsel was ineffective for failing to raise these grounds before the PCR Court, arguing that this was the “cause” for their default. [ECF No. 1-2 at 9]. As to these grounds, under the Martinez exception, Petitioner must first “demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the [petitioner] must demonstrate that the claim has some merit.” Gray v. Pearson, 526 Fed.Appx. 331, 333 (4th Cir. 2013). As discussed below, Petitioner fails to meet this standard.

b. Ground Three

As to Ground Three, Petitioner challenges the following italicized statements made by the trial judge at sentencing, arguing his trial counsel should have moved for acquittal on all of Petitioner's convictions:

The jury's verdict, as I indicated to you, seemed to me to be somewhat of a compromise verdict. And I don't know what they heard, but it seems to me that what they took away from it is that there was some blame to go on both sides of the equation. I don't know that that's the truth. I don't know that that's the case, but that's what it seems like they found in this matter. If, in fact, that is what they decided, and the victims were to some degree to blame for what happened, then I can tell you now that the victims received their sentence. And their sentence in one instance was a death penalty, and in the other instance, it was a life committed to a wheelchair. So if, in fact, that was a compromise verdict and they decided that there was blame to be shared, then the punishment to the victims has been exacted ....

And I've come to this conclusion. I'm not going to get it right, because this can't be made right. And my sentence is not going to serve justice, and that's because here on this earth, as we walk this earth, justice is not to be had. Justice to us in this world is simply a word, and we all interpret it differently. Both sides of the aisle have a different idea of what justice is in this case. So I would tell you this. Don't look to my sentence for justice.

[ECF No. 20-3 at 911-12 (emphasis added), see also ECF No. 1-2 at 10].

It is unclear on what basis Petitioner is asserting that his trial counsel should have objected. To the extent that Petitioner is arguing that the trial judge was indicating, through these comments, that the verdict was unlawful as rendered, the court disagrees with Petitioner's interpretation of the trial judge's comments. See also State v. Sims, 825 S.E.2d 731, 738 n.13 (S.C. Ct. App. 2019) (“Sims also alleges that the lack of evidence supporting the charge suggests an impermissible compromise verdict. However, we do not believe our state's jurisprudence concerning this issue has been fully accepted or developed .... Moreover, we believe analyzing this issue would require this court to speculate as to what occurred during jury deliberations and ultimately why the jury reached its verdict. As such, we decline to address the issue of compromise verdicts and limit our analysis to whether a voluntary manslaughter charge was justified.”) (citation omitted)).

The court discerns no merit to this ground.

c. Ground Four

Petitioner argues in Ground Four that his trial counsel was ineffective for failing to cross-examine and impeach certain witnesses that Petitioner argues had “relevant exculpatory evidence.” [ECF No. 1-2 at 11-12]. Petitioner primarily identifies Rebekah Fleming (“Fleming”), noting that she was cross examined concerning a letter she wrote to Petitioner's co-defendant Johnson, but was not cross examined concerning other letters she wrote to Johnson. See id. However, a review of these omitted letters, even if the court could have considered these letters at this time,⁹ reveals Fleming's subjective opinion that Johnson acted in self-defense and defense of another on the night in question, opinions consistent with testimony counsel solicited from Fleming on cross-examination at trial. [See, e.g., ECF No. 20-1 at 135 (Fleming testifying she wrote letters to Johnson while he was in jail stating her belief it was not his fault); see also id. at 136 (Fleming testifying she did not see Petitioner on the night in question even though on the night in question she told police officers otherwise)].¹⁰

9 As noted by the Supreme Court, in a habeas case, “the federal court may review the claim based solely on the state-court record ....” Shinn v. Ramirez, 596 U.S. 366, 378 (2022).

10 Similarly, the court rejects Petitioner's argument as meritless that counsel failed to cross examine Johnson with the letters he wrote to Fleming where Johnson's testimony was consistent with what he wrote to Fleming, to wit: that he acted in self-defense and defense of another, and that Petitioner did not shoot anyone.

d. Ground Five

In Ground Five, Petitioner argues that his trial counsel should have interviewed and investigated the witnesses and attackers before the trial. [ECF No. 1-2 at 14]. Specifically, Petitioner points to an interview report conducted by private investigator David B. MacDougall's interview report for the defense of Yolanda Fleming Spencer (“Yolanda”), the older sister of Amy and Rebekah Fleming. See id. In this interview, Yolanda states “Amy is coming around and realizes she needs to tell the truth and not shade it to get back at Curtis [Johnson].” See id., see also id. at 15-19 (Petitioner arguing trial counsel should have also interviewed Fleming and Johnson about their letters before trial).

There is no merit to this claim because Petitioner did not call any witnesses at PCR to present their testimony or elicit what they would have testified had counsel further investigated the case. See Dempsey v. State, 610 S.E.2d 812, 814 (S.C. 2005), abrogated on other grounds by Smalls v. State, 810 S.E.2d 836 (S.C. 2018); Bannister v. State, 509 S.E.2d 807, 809 (S.C. 1998) (“This Court has repeatedly held a PCR applicant must produce the testimony of a favorable witness or otherwise offer the testimony in accordance with the rules ofevidence at the PCR hearing in order to establish prejudice from the witness' failure to testify at trial.”) (emphasis in original)); Glover v. State, 458 S.E.2d 538, 540 (S.C. 1995) (mere speculation as to unpresented witness' testimony does not satisfy PCR applicant's burden).

Additionally, even if Petitioner could rely on the out-of-court statements he now provides to this court-which are not part of the state court record-he cannot prevail on this ground.¹¹This claim is speculative because no testimony was obtained from trial counsel on this issue and it is unknown if trial counsel had interviewed these witnesses and/or they refused to provide a statement. Additionally, Petitioner cannot show deficient performance or prejudice because counsel impeached Amy at trial with her prior statements to police, the 911 call, and what occurred that night. Counsel also impeached her testimony at trial with what she told her sister Yolanda and those statements she denied, counsel called Yolanda to testify to them before the jury. [ECF No. 20-1 at 103-105, 641-48, see also ECF No. 1-2 at 27-28].

11 As also noted by Respondent, Petitioner did not introduce the private investigator's interview notes or introduce the letters between Fleming and e. Ground Six Johnson.

e. Ground Six

Petitioner's Ground Six concerns the following jury instructions:

(1) Trial counsel was ineffective for failing to object to the criminal intent charge that erroneously stated “criminal intent can arise from action or failure to act. It may also arise from negligence, [recklessness], or an indifference to duty or consequences that is considered by the law to be the equivalent of criminal intent....”

(2) Trial counsel was ineffective for failing to object to the trial judge's erroneous malice instruction which stated, “It is the intentional doing of a wrongful act without just cause or excuse and with the intent to inflict an injury, or under certain circumstances that the law will implicate an evil intent....”

(3) Trial counsel was ineffective for failing to object to the jury charge that erroneous interpretation of the jury instruction of assault and battery of a high and aggravated nature (ABHAN), when the instruction was erroneous, prejudicial, and burden shifting to the Petitioner. The ABHAN charge stated, “Assault and battery of a high and aggravated nature includes all the elements of assault and battery with intent to kill except malice [ .... ] The difference between assault and battery with intent to kill and assault and battery of a high and aggravated nature is the presence of or the absence of malice....”

(4) Trial counsel was ineffective for not objecting to the trial courts mutual combat charge, since the instruction was burden shifting, highly prejudicial to the petitioner's mere presence defense and denied Petitioner his rights of due process and a fair trial .... Trial counsel erred when not objecting because there was no evidence that Petitioner acted in mutual combat ....

(5) Trial counsel was ineffective was failing to object to the jury charge that erroneously stated that, “Now, we're at the point where I am about to give you the case and let you begin your consideration, and I just want to make sure that you recognize and remember your oath. Your job and my job is to see that the trial and the verdict is fair and just to both parties ”

[ECF No. 1-2 at 2, 7, 10-11, 14, 20-23, 35, see also ECF No. 43 at 33-34].

The jury instructions must be viewed as a whole, and there is error only if the petitioner proves a reasonable likelihood that the jury applied the challenged instruction in a way that violates the Constitution. Boyde v. California, 494 U.S. 370, 380-81 (1990); see also Estelle, 502 U.S. at 72. The Supreme Court has explained that this standard was a “likelihood” of misinterpretation, as opposed to a “slight possibility” of misinterpretation, and that a juror “could have” misinterpreted an instruction is different from the reasonable likelihood that the juror did misinterpret the instruction under the standard in Estelle. See Weeks v. Angelone, 528 U.S. 225, 236 (2000) (citation omitted).

Here, the court discerns no merit to Petitioner's challenge to the above jury instructions, particularly upon examination of the jury instructions as a whole. First, the trial judge was correct regarding his charge on criminal intent generally, applicable to all criminal cases. [ECF No. 20-1 at 842-43]. Later in his charge, the trial judge explained the specific criminal intent necessary for ABWIK and murder. Id. at 850-52, 854-58; see also, e.g., McKnight v. State, 661 S.E.2d 354, 361 (S.C. 2008) (“Accordingly, the specification of the mens rea in the HCA statute in conjunction with the general charge on criminal intent was proper and counsel was not deficient in failing to object to the primary charge.”).

Second, Petitioner argues the trial judge's malice charge was incorrect, including when the trial judge charged the jury that malice “may be implicated from showing a total disregard for human life or deeds done from a deadly weapon.” [See ECF No. 43 at 35]. To the extent that Petitioner is arguing the jury charge was incorrect because of Belcher, the court has addressed this issue. Additionally, the South Carolina Supreme Court has stated that the definition of malice that was provided is not an unconstitutional burden-shifting charge. State v. Bell, 406 S.E.2d 165, 170 (S.C. 1991) (“Appellant complains the trial judge improperly defined malice as ‘the doing of a wrongful act intentionally and without just cause or excuse.' He claims the instruction created an unconstitutional burden-shifting presumption. We disagree. The trial judge's definition of malice is correct, State v. Judge, 208 S.C. 497, 38 S.E.2d 715 (1946), and the charge given is devoid of any presumption.”); see also Foust, 479 S.E.2d at 52 (holding a trial judge is only required to charge the current and correct statement of the law of South Carolina).¹²

12 Petitioner cites Arnold v. Evatt, 113 F.3d 1352, 1356 (4th Cir. 1997) where the Fourth Circuit found the jury instruction that malice “may be implied from the willful, deliberate and intentional doing of any unlawful act” to “erroneously shift[] the burden of proof as to malice from the prosecution to the defendant.” However, here, the trial judge did not give this instruction.

Petitioner also challenges the ABHAN charge, arguing it “was erroneous and prejudicial because the Petitioner could have been convict[ed] of the charge of ABHAN even if the jury found malice, but with the erroneous interpretation so the ABHAN charge the Petitioner couldn't have been convicted of ABHAN if they found malice,” thereby shifting the burden to Petitioner to prove that “the difference between ABWIK and ABHAN was not malice but was intent to kill.” [ECF No. 1-2 at 22].

The challenged jury instruction is as follows:

Ladies and gentlemen, I have previously given you the charge as to malice and I have previously defined that for you. Now, if you find that the State has not proven the defendant guilty of assault and battery with intent to kill, you must then determine whether the State has proved that the defendant is guilty of assault and battery of a high and aggravated nature. Assault and battery of a high and aggravated nature includes all the elements of assault and battery with intent to kill except malice. In addition, the State must prove, beyond a reasonable doubt, an aggravating circumstance. The difference between assault and battery with intent to kill and assault and battery of a high and aggravated nature is the presence of or the absence of malice.

Circumstances of aggravation include the use of a deadly weapon, the intent to commit a felony, the infliction of serious bodily

injury, the great disparity between the ages or physical condition of the parties, the difference in the genders of the parties, the taking of liberties of a female with the use of force, a purposeful of shame and disgrace, and the resistance of lawful authorities. These are only examples that I give to you of the circumstances of aggravation.

[ECF No. 20-3 at 857 (emphasis added)].

South Carolina defines ABWIK as an unlawful act of a violent nature to another person with malice aforethought, either express or implied, and intent to kill. See, e.g., State v. Coleman, 536 S.E.2d 387, 389 (S.C. Ct. App. 2000) (citations omitted). ABHAN is an unlawful act of violent injury accompanied by circumstances of aggravation. Id. (citation omitted). “[T]he absence of malice is not a required element of the offense of ABHAN, and the fact that a defendant acts with malice does not preclude a finding of ABHAN.” State v. Tyler, 560 S.E.2d 888, 890 (S.C. 2002).

To the extent he did so, the trial judge erred in charging the jury that the absence of malice is an element of ABHAN:

Four months before Hill's trial, the Court of Appeals held that absence of malice was not an element of ABHAN, and found a charge including absence of malice as an element of ABHAN to be erroneous. State v. Pilgrim, 320 S.C. 409, 465 S.E.2d 108 (Ct.App.1995) (“Pilgrim I”). After Hill's trial and ABIK conviction, this Court granted certiorari to review Pilgrim I. This Court affirmed the Court of Appeals, stating explicitly that absence of malice is not an element of ABHAN. State v. Pilgrim, 326 S.C. 24, 482 S.E.2d 562 (1997) (“Pilgrim II”). In Pilgrim II, this Court explained, “In this case, under the trial judge's instruction, the jury could not have returned with an ABHAN conviction because there was no evidence of provocation, or stated another way there

was no evidence of absence of malice. Absence of malice is not an element of ABHAN.” Id. at 27, 482 S.E.2d at 563. There is no question that an ABHAN charge, like the one given in this case, including absence of malice or legal provocation as an element would be erroneous if given after this Court's decision in Pilgrim II.

Hill v. State, 567 S.E.2d 847, 850 (S.C. 2002) (footnote omitted).

However, Petitioner must also show he was prejudiced by trial counsel's failure to object to the invalid charge. Petitioner argues repeatedly that his trial strategy was “mere presence” in that he was merely present on the night in question and that this strategy was supported by significant evidence, including Johnson's testimony that Johnson shot Wilson in defense of himself and Petitioner, as well of evidence that Johnson-and not Petitioner-had sole possession of the gun. [See ECF No. 1-2 at 2]. But in rendering a verdict against Petitioner for ABWIK and the weapons charge, the jury rejected Petitioner's “mere presence” strategy and instead relied on the evidence discussed above in conjunction with Petitioner's actual innocence claim, that, as in Hill, shows overwhelming evidence of malice and shows there is “no reasonable probability that the jury would have convicted Hill of ABHAN, a lesser included offense of ABIK (for which Hill was indicted), even if the judge had given the correct ABHAN charge.” Hill, 567 S.E.2d at 851.

Additionally, to the extent that Petitioner is arguing the jury charge was incorrect as a matter of state law, such a claim is not cognizable. See 28 U.S.C. § 2254(a); see also Smith v. Moore, 137 F.3d 808, 821-22 (4th Cir. 1998) (refusing to entertain the habeas petitioner's contention that a jury instruction misstated South Carolina law). Finally, as to Petitioner's argument that the jury instruction at issue improperly shifted the burden from the State to Petitioner to demonstrate that he did not use the requisite intent to kill, the trial transcript shows that the trial judge properly and repeatedly stated that the State has the burden of proof and repeatedly informed the jury that Petitioner did not bear the burden of proof on any issue. [ECF No. 20-3 at 838-39, 842-46, 849-51, 853, 856-57].

Fourth, as to the mutual combat charge, under South Carolina law, self-defense and defense of others cannot exist when the parties engage in mutual combat. State v. Graham, 196 S.E.2d 495, 495-96 (S.C. 1973) (“To constitute mutual combat there must exist a mutual intent and willingness to fight; and this intent may be manifested by the acts and conduct of the parties and the circumstances attending and leading up to the combat.”) (citations omitted)); State v. Fuller, 377 S.E.2d 328, 330 (S.C. 1989). Here, there was sufficient evidence of mutual combat; therefore, the trial judge did not err in charging mutual combat. Jackson v. State, 586 S.E.2d 562, 564 S.C. (2003).¹³Further, the trial judge explained to the jury what mutual combat meant, the four elements of self-defense and defense of others, that Petitioner did not have to prove anything, but that the State had to disprove at least one element of self-defense or defense of others. [ECF No. 20-3 at 859-63].

13 As argued by Respondent: Here there was overwhelming evidence that Petitioner and his brother brought on the difficulty by going to the victims' residence at 1:30 a.m., an hour to an hour and a half after the initial assault on Curtis on Monticello Road and luring the victims outside and confronting them with weapons .... Petitioner had a metal pipe and something in his sock. His brother had an SUV, brass knuckles, and a loaded gun. The victims had at least one (1) shotgun, and three (3) according to Petitioner and his brother. [ECF No. 20 at 62-63]. Although Petitioner argues this evidence is insufficient, explaining the innocent and/or circumstantial nature of this evidence, he does not dispute that this evidence was offered at trial. [See ECF No. 43 at 39-40].

As to the fifth jury instruction, Petitioner alleges this charge was inappropriate. However, this charge was a correct statement of law at the time of Petitioner's trial. See State v. Daniels, 737 S.E.2d 473 (S.C. 2012); State v. Beaty, 813 S.E.2d 502, 506 (S.C. 2018) (discussing the holding in Daniels). Although in 2012, the South Carolina Supreme Court instructed courts to no longer charge the jury to return a verdict that is “just and fair to all parties,” See id., courts have “never required an attorney to be clairvoyant or anticipate changes in the law.” Teamer v. State, 786 S.E.2d 109, 115 (S.C. 2016) (citations omitted); Kornahrens v. Evatt, 66 F.3d 1350, 1360 (4th Cir.1995) (declining to find counsel's performance deficient when “he followed a long-standing and well settled rule of South Carolina criminal law-even when that rule was under attack in the United States Supreme Court at the time of trial”).

Here, the trial judge in this case used a “fair and just verdict to both parties” language. [ECF No. 20-3 at 865]. But the language was not linked to the reasonable doubt, burden of proof charge, or circumstantial evidence charge. Beaty, 813 S.E.2d at 506 (finding charge harmless in part because it was not linked to the reasonable doubt charge and circumstantial evidence charge and the judge repeatedly told the jury the State had the burden to prove Petitioner's guilt beyond a reasonable doubt). When viewed in its entirety, these instructions were correct at the time and unlikely to mislead the jury.

f. Ground Seven

As to Ground Seven, Petitioner argues that numerous comments made by the prosecutor during his closing violated Petitioner's constitutional rights and that trial counsel was ineffective for not objecting to these comments. [ECF No. 1-2 at 25].¹⁴

14 Although Petitioner cites to multiple passages from the closing argument he is challenging, he fails to identify what is specifically wrong with each passage. [See ECF No. 1-2 at 25, ECF No. 43 at 45, see also ECF No. 20 at 76-94 (Respondent discussing each passage identified by Petitioner)].

This issue was presented to the PCR Court, although not appealed, and the PCR Court held as to this issue as follows:

Applicant next asserts trial counsel was ineffective for not objecting to several portions of the State's closing argument which Applicant alleges impermissibly acted to enflame the passion of the jury. (PCR Tr. pp. 25-35). The undersigned finds no merit to this claim.

Trial counsel testified that the portions of the closing pointed to by PCR counsel were the Solicitor's “version of the facts/' (PCR Tr. p. 29). Trial counsel exemplified a familiarity with this Solicitor's typical closing argument. He opined that this Solicitor's presentations could be “over the top, aggressive, flamboyant, [and] excessive,” but that his closing in Applicant's case was “rather mild,' in comparison. (PCR Tr. pp. 25, 50). Trial counsel testified he did not object to the closing, which he “did not consider that to be excessive.” (PCR Tr. pp. 27, 50). He further testified he ‘‘tactically” made the decision not to object to any portions of the Solicitor's closing which could be perceived as inflammatory because he assessed any objection would be overruled by the trial court and he did not wish to emphasize the jury's attention to any particular part of the closing. (PCR Tr. pp. 27-28). Trial counsel explained that in his experience judges “give a lot of leeway” in closing argument, which trial counsel believed could be attributed to the applicable abuse of discretion standard of appellate review. (PCR Tr. p. 50).

This Court finds no error or prejudice within trial counsel's representation of Applicant during the prosecution's closing. Regarding the alleged failure to object, there remains in this action the strong presumption that trial counsel rendered adequate assistance and exercised reasonable professional judgment in his representation of Applicant at all stages of Applicant's trial. Ard v. Catoe, 372 S.C. at 331, 642 S.E.2d at 596 (citing Strickland, supra). “[W]hen counsel articulates a valid reason for employing a certain strategy, such conduct generally will not be deemed ineffective assistance of counsel. The validity of counsel's strategy is viewed under an ‘objective standard of reasonableness.”‘ Lounds v. State, 380 S.C. 454,462, 670 S.E.2d 646, 650 (2008)

(emphasis in original). Here, trial counsel accurately cited the standard of appellate review pertaining to objections lodged during closing argument. E.g., State v. Northcutt, 372 S.C. 207, 222, 641 S.E.2d 873, 881 (2007). Citing both knowledge and experience, counsel reasoned that any objection to the State's closing argument in this case was likely to fail because he himself did not consider any portion of the argument too excessive, flamboyant, or otherwise outside the bounds of the record presented at trial. Counsel again cited knowledge and experience when he testified that he consciously elected not to object to any portion of the closing argument because he wanted to avoid amplifying the jury's attention to any particular portion of it. This Court finds that trial counsel exercised objectively reasonable, informed trial strategy in this regard and declines to make a finding of deficient performance.

Also, because Applicant must establish prejudice from counsel's failure to object in order to garner relief, the underlying question before this Court is “whether the solicitor's comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Simmons v. State, 331 S.C. 333, 338, 503 S.E.2d 164, 166-67 (1998). “Solicitors are bound to rules of fairness in their closing arguments.” State v. Northcutt, 372 S.C. at 222, 641 S.E.2d at 881. “[I]ts content should stay with the record and reasonable inferences to it.” Humphries v. State, 351 S.C. 362,373,570 S.E.2d 160, 166 (2002). “The solicitor's closing argument must, of course, be based upon this principle. The argument therefore must be carefully tailored so as not to appeal to the personal bias of the juror nor be calculated to arouse his passion or prejudice.” State v. Linder, 276 S.C. 304, 312, 278 S.E.2d 335, 339 (1981). However, “[a] solicitor has a right to state his version of the testimony and to comment on the weight to be given such testimony.” Humphries v. State, 351 S.C. at 373, 570 S.E.2d at 166. Further, any excerpt of the State's closing exists as “one moment in an extended trial.” Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 1872 (1974). Accordingly, a court must conduct an “examination of the entire proceedings” in context. Donnelly at 643, 94 S.Ct. at 1871; Northcutt, supra (“We must review the [closing] argument in the context of the entire record.”); State v. Bell, 302 S.C. 18, 35, 393 S.E.2d 364, 374 (1990).

The undersigned finds the portions of the prosecution's closing argument drawn to this Court's attention at the evidentiary hearing neither inflammatory nor improper based on the remainder of the record. The entirety of the closing argument closely pertained to evidence properly received at trial and later corroborated through Applicant's own testimony. (R. pp. 668-98). Insofar as Applicant alleges the State prejudicially referred to the condition of the victims, (e.g. R. pp. 670, 678, 680, 683), this Court finds each reference closely contained to and reasonably inferred from the record of the injuries sustained. (R. pp. 502-03, 509-10, 513-18). As to any other portion of the closing cited by Applicant, this undersigned agrees with trial counsel's assessment that the Solicitor permissibly argued his version of the facts, and further notes that the State permissibly asked the jury to return a verdict on a number of possible outcomes favorable to the State. (R. pp. 670-98). This Court finds that the State's closing argument was permissibly offered in furtherance of the State's requesting the jury to find malice in the acts charged and to render a verdict in favor of the State based upon specific facts presented in the testimony received at trial.

This Court DENIES and DISMISSES Applicant's ineffective assistance of trial counsel allegation regarding the failure to object to the prosecution's closing argument, finding Applicant has failed to meet his burden of proving either prong of Strickland.

[ECF No. 20-5 at 1139-42].

Petitioner has failed to overcome “doubly” more difficult standard of 28 U.S.C. § 2254(d) and Strickland to show that the PCR court's application of Strickland was unreasonable, particularly where he has failed to show prejudice ensuing from counsel's allegedly deficient performance and where the PCR court's applicable holding was based on credibility determinations of Petitioner's counsel. See, e.g., Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (“[F]or a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear.” (citing 28 U.S.C. § 2254(e)(1))); see also Marshall v. Lonberger, 459 U.S. 422, 434 (“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”).

In sum, Petitioner's grounds remain procedurally-barred and must be dismissed. Accordingly, the undersigned recommends the district judge grant Respondent's motion for summary judgment.

III. Conclusion and Recommendation

For the foregoing reasons, the undersigned recommends the court grant Respondent's motion for summary judgment [ECF No. 21] and dismiss the petition with prejudice.

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

901 Richland Street

Columbia, South Carolina 29201

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).