Opinion
Case No. 0:17-cv-02546-DCC
09-13-2018
Richard Kevin Patterson, Petitioner, v. Warden Scott Lewis, Respondent.
ORDER
Petitioner, represented by counsel, is seeking habeas corpus relief pursuant to 28 U.S.C. § 2254. ECF No. 1. Respondent filed a Motion for Summary Judgment and Return and Memorandum on February 1, 2018. ECF Nos. 15, 16. Petitioner filed a Response in Opposition to the Motion for Summary Judgment, and Respondent filed a Reply. ECF Nos. 22, 28.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), (D.S.C.), this matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial proceedings and a Report and Recommendation ("Report"). On June 21, 2018, the Magistrate Judge issued a Report recommending that the Motion for Summary Judgment be granted and the Petition be dismissed. ECF No. 30. Petitioner filed objections to the Report on August 21, 2018. ECF No. 37.
BACKGROUND
Petitioner was indicted on charges of murder and possession of a weapon during the commission of a violent crime in the Anderson County Court of General Sessions on March 28, 2000. App. 818. Petitioner's trial began on October 9, 2000, and he was represented by James Brehm, Esquire. App. 1. Petitioner was convicted on both counts and sentenced to life imprisonment for murder and a concurrent term of five years' imprisonment for possession of a weapon during the commission of a violent crime. App. 791-92.
Petitioner appealed his convictions and sentences in the South Carolina Court of Appeals. ECF No. 16-4 at 1. Petitioner was represented in his direct appeal by Tara Dawn Shurling, Esquire. Id. The Court of Appeals affirmed the judgment in a per curiam opinion on February 19, 2003. ECF No. 16-6 at 3. Petitioner's petition for a writ of certiorari to the Supreme Court of South Carolina was denied on May 13, 2004. ECF Nos. 16-9 at 1; 16-10 at 1.
Petitioner filed an application for post-conviction relief ("PCR") in the Anderson County Court of Common Pleas on July 26, 2004, through counsel Shurling. App. 795. A hearing was held on the application on June 18, 2009, but it was continued for scheduling purposes. App. 952-53. For reasons that are not apparent from the record, the hearing was not reconvened and completed until February 26, 2013. App. 955. By order dated June 16, 2014, the PCR court denied Petitioner's PCR application. App. 1123. Petitioner filed a motion to alter or amend the judgment that was denied. App. 1173.
Petitioner appealed the PCR court's denial of relief by filing a petition for a writ of certiorari to the Supreme Court of South Carolina, again represented by Shurling. ECF No. 16-12. The Supreme Court denied the petition on September 21, 2016. Petitioner filed this action on September 21, 2018. ECF No. 1.
APPLICABLE LAW
The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge to which a specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See U.S.C. § 636(b). The Court will review the Report only for clear error in the absence of an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that "in the absence of 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." (citation omitted)).
Petitioner's claims are governed by 28 U.S.C. § 2254(d), which provides that his petition cannot be granted unless the claims "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411 (2000). Importantly, "a determination of a factual issue made by a State court shall be presumed to be correct," and Petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
DISCUSSION
Petitioner raised eight grounds in his Petition, and the Magistrate Judge recommended granting summary judgment. Petitioner concedes that he has abandoned Ground One. ECF No. 37 at 5. Petitioner objects to the Magistrate Judge's recommendation with respect to the other grounds. The Magistrate Judge provided a thorough recitation of the procedural history and the relevant law, including the summary judgment standard and the habeas corpus standard of review, which the Court incorporates into this Order by reference.
Ground Two
In Ground Two, Petitioner asserts that trial counsel was ineffective for failing to adequately challenge the admissibility and credibility of Petitioner's statements to law enforcement before and during his arrest. ECF No. 1-1 at 17. Specifically, he argues that trial counsel was ineffective for failing to adequately challenge the admissibility of his written (third) statement, for failing to introduce expert testimony supporting the suppression of Petitioner's statements and aiding the jury in discounting the statements, and for failing to arrange for Petitioner to make a new statement. Id. at 17-27. The Court will address Petitioner's objections below.
The Report and the objections discuss whether trial counsel was ineffective for failing to introduce expert testimony regarding Petitioner's statements in conjunction with Ground Eight; accordingly, the Court will also discuss this argument with Ground Eight.
Written Statement
The Magistrate Judge determined that Petitioner's claim regarding his written statement had been addressed on the merits by the PCR court. ECF No. 30 at 13. She further found that this PCR court's decision was not contrary to or an unreasonable application of clearly established federal law. Id. Petitioner asserts that his written statement was fruit of the poisonous tree because his second oral statement to law enforcement was an un-Mirandized custodial statement. ECF No. 37 at 5-9. Petitioner objects to the Magistrate Judge's reliance on United States v. McNamara, 74 F.3d 514, 516-17 (4th Cir. 1996), because the constitutional principals at issue were already well established. ECF No. 37 at 5-7. Thus, trial counsel should have challenged the admissibility of this statement despite the fact that the Jackson v. Denno hearing took place in 2000 and Missouri v. Seibert, 542 U.S. 600 (2004), had not yet been decided. Id.
In Missouri v. Seibert, 542 U.S. 600 (2004), the United States Supreme Court determined that Miranda warnings given mid-interrogation but after a confession was given were ineffective; accordingly, the post-Miranda statement should be suppressed as well.
In Jackson, the United States Supreme Court "held that a criminal defendant who challenges the voluntariness of a confession made to officials and sought to be used against him at his trial has a due process right to a reliable determination that the confession was in fact voluntarily given and not the outcome of coercion which the Constitution forbids." Lego v. Twomey, 404 U.S. 477, 478, (1972) (citing Jackson, 378 U.S. 368 (1964)).
Where allegations of ineffective assistance of counsel are made, the question is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). First, a petitioner must show that counsel made errors so serious that counsel's performance was below the objective standard of reasonableness guaranteed by the Sixth Amendment. Id. at 687-88. Second, the petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "The standards created by Strickland and § 2254(d) are both highly deferential . . . and when the two apply in tandem, review is doubly so." Harrington v. Richter, 131 S.Ct. 770, 788 (2011). In applying § 2254(d), "the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
Here, the PCR court addressed trial counsel's performance under the standard set forth in Strickland. App. 1124-25. The PCR court found that,
Applicant alleges counsel should have moved to suppress a written statement he made to law enforcement because prior to the statement, Applicant gave an un-Mirandized statement. Under the case law in effect at the time of trial, the fruit of the poisonous tree doctrine would not apply to where a defendant gives a confession after Miranda warnings are given, even though there was a previous un-Mirandized custodial statement. Oregon v. Elstad, 470 U.S. 298 (1985). Accordingly, trial counsel was not ineffective as counsel is not required to be clairvoyant and anticipate changes in the law.App. 1134 (footnote omitted). The PCR court's denial of the Petitioner's ineffective assistance claim was neither contrary to nor an unreasonable application of applicable Supreme Court precedent. First, the PCR court applied the Strickland standard, which is the applicable Supreme Court precedent. Second, the record fails to demonstrate the PCR court confronted a set of facts that were materially indistinguishable from those considered in a decision of the Supreme Court but arrived at a result different from the Supreme Court precedent. Petitioner's argument that trial counsel should have seen that the facts in this case were distinguishable from the facts in Oregon v. Elstad, 470 U.S. 298 (1985), such that he was responsible for challenging the admissibility of the written statement before the decision in Seibert is unconvincing. The Court agrees with the Magistrate Judge that, pursuant to McNamara, trial counsel was not ineffective for failing to anticipate a subsequent change in the law. 74 F.3d at 516-17. Accordingly, the Court overrules this objection.
The Court is also unpersuaded by Petitioner's citation to Wong Sun v. United States, 371 U.S. 471, 485 (1963), which held that "verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers' action in the present case is no less the 'fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion."
New Statement
The Magistrate Judge determined that this argument was raised to but not ruled upon by the PCR court. ECF No. 30 at 14. Accordingly, she reviewed it de novo and found that this claim was without merit because there is no credible evidence in the record that would show that if trial counsel had taken him to make a new statement, Petitioner's testimony would have remained consistent with the testimony that he gave at trial. Id. Petitioner objects to this finding and argues that making another statement would have supported an argument that he was not competent to give a reliable statement in the immediate aftermath of his fiancé's death in his presence. ECF No. 37 at 8-9. He argues that a second statement would have demonstrated to the jury that he had tried to set the record straight and that there was no downside to making a second statement. Id.
Significantly, Petitioner does not challenge the Magistrate Judge's finding that here is no credible evidence in the record regarding what statement Petitioner would have given to law enforcement in a second interview. See Beaver v. Thompson, 93 F.3d 1186, 1195 (4th Cir. 1996) ("[A]n allegation of inadequate investigation does not warrant habeas relief absent a proffer of what favorable evidence or testimony would have been produced."); Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992) (finding that ineffective assistance of counsel claims that are based on speculation do not meet the burden of showing prejudice under Strickland). Accordingly, this objection is overruled.
Ground Three
In Ground Three, Petitioner argues that trial counsel was ineffective for failing to develop and present an accident defense and for failing to request a jury charge on accident. ECF No. 1-1 at 27-30. The Magistrate Judge addressed these as separate claims after determining that the PCR court had only ruled on whether counsel was ineffective for failing to request an accident jury instruction. The Magistrate Judge determined that the PCR court reasonably found that trial counsel was not ineffective because he had no basis upon which he could have argued that the jury should have received a charge on accident. ECF No. 30 at 16. She further determined, upon a de novo review, that, for the same reasons, Petitioner failed to establish that trial counsel was ineffective for failing to develop and present an accident defense. Id.
Petitioner addresses this Ground as one claim in his objections. Petitioner objects that Petitioner's version of events—where he grabbed the victim's hands, which were holding the gun, in an effort to prevent her from committing suicide—was not inconsistent with an accident defense. ECF No. 37 at 10-15. He contends that trial counsel's insistence on arguing that the victim pulled the trigger was a harmful strategy when Petitioner's version of events does not require a finding that either he or the victim intentionally pulled the trigger. Id. He argues that the Report erroneously concluded that he could not assert that the killing was an accident unless he acknowledged that he pulled the trigger. Id.
The PCR count found that,
Applicant further alleges counsel was ineffective for failing to request a charge on accident. Counsel testified that he did not think evidence supported a charge of accident. The trial court did provide a charge on suicide. Counsel testified that his theory of the case is that the victim intended to commit suicide and succeeded. The Court finds that no evidence of accident was provided to the jury. At the PCR hearing, Applicant suggested that perhaps the victim abandoned her intention to commit suicide. But this Court finds such a contention speculative and unsupported by the record. Instead, under most of Applicant's version of events (he provided several to law enforcement), the victim attempted and succeeded to commit suicide.
Further, this Court finds that overwhelming evidence supports the verdict and this defense would simply not be reasonably likely to succeed. The projectile's point of entry was behind the ear and the exit wound was through the jaw. Based on the trajectory and the evidence that the gun was fired from
more than 24" from the victim, in addition to Applicant's inculpatory statement admitting he shot the victim intentionally and his obviously self-protective behavior, this Court finds evidence of guilt overwhelming. This Court finds that Applicant did not meet the burden of proving either prong of Strickland.App. 1133-34. The PCR court's denial of the Petitioner's ineffective assistance claim was neither contrary to nor an unreasonable application of applicable Supreme Court precedent. First, the PCR court applied the Strickland standard, which is the applicable Supreme Court precedent. Second, the record fails to demonstrate the PCR court confronted a set of facts that were materially indistinguishable from those considered in a decision of the Supreme Court but arrived at a result different from the Supreme Court precedent.
Here, even if the Court were to assume that trial counsel was ineffective in failing to request a jury instruction with respect to accident, in light of the overwhelming evidence of Petitioner's guilt as found by the PCR court, Petitioner fails to establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." See Strickland, 466 U.S. at 694. Accordingly, Petitioner's objections are overruled.
As previously noted, Petitioner's objections do not break Ground Three into two claims. To the extent that Petitioner's claim that trial counsel was ineffective for failing to develop an accident defense is separate from his claim that trial counsel was ineffective for failing to request a jury instruction on accident, the Court agrees with the Magistrate Judge that these claims should be rejected for the same reasons.
Ground Four
In Ground Four, Petitioner argues that trial counsel was ineffective for withdrawing his request for a jury charge on involuntary manslaughter because the evidence presented at trial was susceptible to the conclusion that the gun went off during a struggle for control over the gun and that "this struggle may have produced a situation where sufficient pressure was put on the trigger to cause it to discharge the weapon . . . ." ECF No. 1-1 at 32. The Magistrate Judge found that Petitioner failed to show that the PCR court's decision was based on an unreasonable determination of the facts. ECF No. 30 at 17-18. Petitioner objects to the Magistrate Judge's finding and argues that, while Petitioner did not expressly state that he put pressure on the trigger when he struggled with the victim for control of the gun, he did testify that he had both hands on the victim's hand which was holding the weapon. ECF No. 37 at 15-16. Accordingly, Petitioner contends a jury could have reasonably inferred that Petitioner's actions resulted in pressure being put on the trigger. Id.
The PCR court found that,
Applicant alleges counsel should have requested a charge on involuntary manslaughter. Counsel at one point requested the charge, but later withdrew it. Counsel testified at the PCR hearing that he did not request the charge because it was not consistent with Applicant's defense that the victim committed suicide and he was unsuccessful in preventing it from occurring. This Court finds counsel exercised reasonable professional judgment and agrees that an instruction was not warranted based on the evidence.
Involuntary manslaughter is defined as follows:
(1) The unintentional killing of another without malice, but while engages in an unlawful activity not naturally tending to cause death or great bodily harm or (2) the unintentional killing of another without malice, while engaged in a lawful activity with reckless disregard for the safety of others. To constitute involuntary manslaughter, there must be a finding of criminal negligence, statutorily defined as a reckless disregard for the safety of others. Recklessness is a state of mind in which the actor is aware of his or her conduct, yet consciously disregards a risk which his or her conduct is creating. . . . The negligent handling of a loaded gun will support a charge of involuntary manslaughter.
App. 1132-33. The PCR court's denial of the Petitioner's ineffective assistance claim was neither contrary to nor an unreasonable application of applicable Supreme Court precedent. First, the PCR court applied the Strickland standard, which is the applicable Supreme Court precedent. Second, the record fails to demonstrate the PCR court confronted a set of facts that were materially indistinguishable from those considered in a decision of the Supreme Court but arrived at a result different from the Supreme Court precedent.
State v. Gibson, 390 S.C. 347, 356, 701 S.E.2d 766, 771 (Ct. App. 2010) (citation omitted).
In the instant case, there was no evidence at trial that Applicant was engaging in an unlawful activity when he allegedly tried to prevent the victim from committing suicide. Further, there was no evidence that Applicant acted in a reckless disregard or otherwise acted with criminal negligence in his alleged attempt to prevent the victim from killing herself. Accordingly, this Court finds that an instruction was not warranted on involuntary manslaughter. This Court finds Applicant failed to prove either prong of Strickland.
The Court agrees with the Magistrate Judge's finding that Petitioner has provided no support for his argument that his testimony at trial warranted a jury instruction on involuntary manslaughter. Petitioner's objection that because "the deceased was not alleged to have expressly stated that she was about to kill herself, the jury in this case could have concluded that Petitioner while acting lawfully, nevertheless acted with 'reckless disregard for the safety of others' when he attempted to take control of the weapon from her'" is not supported by law or the record in this case. See ECF No. 37 at 16. Nor is it so obvious an inference that the PCR court's decision on this issue could be said to have violated clearly established Supreme Court precedent.
Moreover, trial counsel testified at the second PCR hearing that he withdrew the request for an involuntary manslaughter instruction because "it didn't tie in with our theory of the case." App. 975. See Strickland, 466 U.S. at 689 ("A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." (internal citation omitted)). Accordingly, Petitioner is not entitled to habeas corpus relief on this ground.
Ground Five
In Ground Five, Petitioner makes four claims related to the State's publishing of a crime scene photograph and the audible reaction of audience members upon seeing the photograph. ECF No. 1-1 at 32-37. He contends that trial counsel was ineffective for (1) failing to renew his motion for a mistrial following a curative charge given by the trial court, thereby procedurally barring Petitioner from raising the mistrial issue on direct appeal; (2) failing to put on the record an adequate objection to the photograph; (3) failing to ask the trial court to warn those present in the courtroom about the graphic nature of the photographs; and (4) failing to place a full and accurate description of the outburst on the record. Id.
Full and Accurate Description of the Outburst
The Magistrate Judge found that the PCR court ruled on Petitioner's claim that trial counsel was ineffective for failing to place a full and accurate description of the outburst on the record. ECF No. 30 at 21. She found that Petitioner failed to establish that he was entitled to habeas relief with respect to this claim. Id. at 21-22. Petitioner objects to the Magistrate Judge's recommendation and states that trial counsel put a very limited description of the event on the record but that this description did not rise to the level of the observations that trial counsel relayed during the PCR hearing. ECF No. 37 at 17-18.
The PCR court found that trial counsel sufficiently described the outburst by the victim's family at the trial. App. 1127-1129. The PCR court quoted the portion of the trial transcript wherein trial counsel argued for a mistrial and stated that "there were several friends and family members that blurted out, started crying, screaming, and created a disturbance." The PCR court concluded that "the transcript reveals counsel explicitly stated what he perceived to occur on the court room. The trial court simply did not agree with counsel's recollection of events and found the outburst was more limited than what counsel proposed." App. 1129. Petitioner has failed to explain how the PCR court's decision violates clearly established Supreme Court precedent. Accordingly, his objection is overruled.
Renew Motion for Mistrial
The Magistrate Judge found that the PCR court ruled on Petitioner's claim that trial counsel was ineffective for failing to renew his motion for a mistrial following the curative instruction. ECF No. 30 at 21. She determined that Petitioner failed to demonstrate that the PCR court's decision was contrary to, or an unreasonable application of, clearly established federal law. Id. Petitioner objects to the Magistrate Judge findings and states that, at the PCR hearing, trial counsel testified that it did not occur to him to renew his motion for mistrial following the curative instruction and, therefore, he failed to preserve the issue for appellate review. ECF No. 37 at 17-18.
As stated by the Magistrate Judge, Petitioner has failed to demonstrate that he was prejudiced by any error of trial counsel in failing to renew his motion for mistrial. See Davis v. Sec. for Dep't of Corrs., 341 F.3d 1310, 1316 (11th Cir. 2003) ("Accordingly, when a defendant raises the unusual claim that trial counsel, while effacious in raising an issue, nonetheless failed to preserve it for appeal, the appropriate prejudice inquiry asks whether there is a reasonable likelihood of a more favorable outcome on appeal had the claim been preserved."). Here, Petitioner has made no such showing. He argues that it is unknown what impact the audience's outburst had on the trial; however, the PCR court determined that the curative instruction cured any prejudice. App. 1130. Absent any evidence to the contrary, the Court agrees with the Magistrate Judge that Petitioner has not shown that there was a reasonable likelihood of a more favorable outcome on appeal. This objection is overruled.
Objection to Admission of Photographs
The Magistrate Judge determined that Petitioner's argument that trial counsel was ineffective for failing to adequately object to the admission of the photographs on the record was raised to but not ruled upon by the PCR court; accordingly, she conducted a de novo review of the record and found that Petitioner failed to meet his burden of showing that he is entitled to federal habeas relief with respect to this claim. ECF No. 30 at 22. Petitioner objects and states that trial counsel's objection to the photographs was too limited; accordingly, the issue was not properly preserved for appellate review. ECF No. 37 at 18.
To the extent that Petitioner intends to bring this claim as an ineffective assistance of counsel claim for failing to preserve this issue for appellate review, the Court finds that Petitioner has failed to establish that there is a reasonable likelihood of a more favorable outcome on appeal had the claim been preserved. See Davis, 341 F.3d at 1316. Further, the Court agrees with the Magistrate Judge that, to the extent Petitioner argues that trial counsel failed to make an adequate objection to the admission of the photographs, he has failed to present any clear precedent that would require a reversal of his convictions and sentences on appeal based on graphic crime scene photographs. See State v. Byers, 710 S.E.2d 55, 58 (S.C. 2011) (providing that to warrant reversal of a judgment based on the wrongful admission of evidence, the complaining party must show that the trial court abused its discretion, and that the complaining party was prejudiced by showing that there is a reasonable probability that the wrongfully admitted evidence influenced the jury's verdict); see also app. 1130 (PCR court's order quoting State v. Rosemund, 518 S.E.2d 588, 589-90 (S.C. 1999) ("The relevant, materiality and admissibility of photographs are matters within the sound discretion of the trial court and a ruling will be disturbed only upon a showing of an abuse of discretion . . . . If the photograph serves to corroborate testimony, it is not an abuse of discretion to admit it.")). Thus, the objection is overruled.
Warning for Graphic Photographs
The Magistrate Judge found that Petitioner's claim that trial counsel was ineffective for failing to ask the trial court to give a warning that graphic photographs would be displayed was raised to but not ruled upon by the PCR court. ECF No. 30 at 23. She then determined that Petitioner failed to show any prejudice because, as previously explained, he failed to show any error in the trial court's curative instruction. Id. Further, she determined that the Court cannot speculate as to what effect this warning would have had on the people in the courtroom or whether it would have prevented the outburst. Id. Petitioner argues that trial counsel believed that the photographs were inflammatory, as evidenced by his objection, and he failed to take advantage of the opportunity to warn the audience. ECF No. 37 at 19.
The Court agrees with the Magistrate Judge that Petitioner has provided no support for his assertion that any purported deficiency was not cured by the curative instruction. Because Petitioner fails to demonstrate prejudice as a result of trial counsel's alleged deficiency, the objection is overruled.
Ground Six
In Ground Six, Petitioner makes three claims related to the State's failure to produce the victim's hair sample. He argues that trial counsel was ineffective for failing to make an appropriate objection to the State's introduction of the hair sample as evidence, for failing to move for a mistrial based on the State's use of the hair sample, and for failing to request a recess to allow the defense's expert to examine the hair sample. ECF No. 1-1 at 37-40.
Appropriate Objection
The Magistrate Judge found that the PCR court ruled on whether trial counsel was ineffective for failing to move for a recess on the record. ECF No. 30 at 26. She stated that the PCR court found that trial counsel was deficient for this failure; however, because there was no evidence in the record that the defense expert would have found gun powder residue on the hair sample if he had access to it, Petitioner failed to prove that he was prejudiced by the deficiency. Id. Petitioner objects and argues that failing to request a recess essentially foreclosed on trial counsel's ability to move for a mistrial. ECF No. 37 at 21.
The PCR court found that,
Applicant complains counsel's performance was deficient for failing to move for a mistrial because of the State's late discovery of the victim's hair, which had been sent to SLED and was later misplaced or otherwise missing until shortly before trial. Counsel testified he wanted his expert to test the hair for gun powder residue and approached the bench when the hair reappeared. Counsel admitted he failed to put his motion for continuance on the record. Counsel's performance was deficient. However, Applicant has not proven prejudice. Applicant has not sought to test the hair and there is no evidence in the record that had the defense expert tested the hair, he would have found gun powder residue on the hair.
Instead, the trial testimony suggests it was unlikely that had the hair been tested by the defense expert, gun powder residue would have been detected, which would be evidence
that the gun was fired from a closer range. At trial, the State's pathologist testified he viewed the hair with magnifying lenses and did not see any gun powder residue in the victim's hair. Tr. pp. 210-211. This Court cannot speculate on the results of a test that never occurred and therefore finds Applicant has failed to meet his burden of proving prejudice. Skeen v. State, 325 S.C. 210, 481 S.E.2d 129 (1997) (finding one could only speculate whether counsel could have done a better cross-examination of a doctor, therefore, applicant did not meet his burden of proving prejudice). Accordingly, this allegation is denied.App. 1134-35. The PCR court's denial of the Petitioner's ineffective assistance claim was neither contrary to nor an unreasonable application of applicable Supreme Court precedent. Moreover, the record fails to demonstrate the PCR court confronted a set of facts that were materially indistinguishable from those considered in a decision of the Supreme Court but arrived at a result different from the Supreme Court precedent. As stated by the Magistrate Judge, Petitioner fails to establish that trial counsel's deficient performance prejudiced his trial. See Bassette v. Thompson, 915 F.2d 932, 941 (4th Cir. 1990) (finding appellant could not establish that counsel was ineffective for failing to call certain witnesses without advising the court of what an adequate investigation would have revealed or what testimony would have been provided); see also Bradford, 953 F.2d at 1012 (holding that ineffective assistance of counsel claims that are based on speculation do not meet the burden of showing prejudice under Strickland). Accordingly, this objection is overruled.
Proper Objection to the Introduction of the Hair Sample
The Magistrate Judge found that Petitioner's argument that trial counsel was ineffective for failing to properly object to the introduction of the hair sample into evidence was raised to but not ruled upon by the PCR court; she then determined that Petitioner failed the show that he is entitled to federal habeas relief with respect to this claim because he failed to establish prejudice. ECF No. 30 at 27-28. Petitioner objects and argues that the Magistrate Judge improperly assumed that trial counsel would not have made a more convincing argument on the record and that this issue would not have prevailed on appeal. ECF No. 37 at 22.
The Court notes that this argument seems to assume, without support, that trial counsel would have made a more convincing argument on the record.
The Court agrees with the Magistrate Judge that Petitioner has failed to establish any error of law in the trial court's decision to overrule trial counsel's objection to the introduction of the hair sample. See State v. McDonald, 540 S.E.2d 464, 467 (S.C. 2000) ("An abuse of discretion occurs when the trial court's ruling is based on an error of law."). Thus, there is no evidence in the record that the outcome of Petitioner's trial would have been different if trial counsel had made his objection on the record; accordingly, Petitioner has not demonstrated prejudice, and his objection is overruled.
Failure to Move for Mistrial
The Magistrate Judge determined that Petitioner's claim that trial counsel was ineffective for failing to move for a mistrial based on the State's introduction of the hair sample into evidence was raised to but not ruled upon by the PCR court. ECF No. 30 at 28-29. She found that Petitioner was not entitled to federal habeas relief because he failed to put forth evidence demonstrating that the trial court would have granted the mistrial. Id. Petitioner objects and argues that the Magistrate Judge's finding overlooks the fact that trial counsel did not ask for a recess to explore whether Petitioner was entitled to a mistrial. ECF No. 37 at 22. He continues that trial counsel admitted at the PCR hearing that he wished that he had asked for a mistrial and had no tactical reason for failing to do so. Id.
Petitioner fails to address the Magistrate Judge's finding that he did not establish resulting prejudice based on trial counsel's deficient performance. The Court agrees with the Magistrate Judge's determination. Petitioner has failed to provide any evidence, beyond speculative assertions, that the trial court would have likely granted a mistrial if trial counsel had moved for one. Thus, he has failed to establish prejudice under Strickland. 466 U.S. at 693. This objection is overruled.
Ground Seven
In Ground Seven, Petitioner raises four claims of ineffective assistance of counsel pertaining to statements made by the State and trial counsel during closing arguments. He alleges that trial counsel was ineffective for failing to object to the prosecutor's statement that the only explanation for the fact that the victim did not have gun powder residue on her hands was that Petitioner wiped the gun off in the kitchen before he placed it in the victim's hands; that he was ineffective for failing to object to the prosecutor's statements that Petitioner loaded the gun and took the safety off, which demonstrated malice aforethought; that he was ineffective for failing to object to the State's characterization of Petitioner's testimony as asserting that the victim died as a result of an unimpeded suicide; and that he was ineffective for characterizing the victim's death as a suicide. ECF No. 1-1 at 40-45.
Statements One and Two
With respect to Petitioner's arguments that trial counsel was ineffective for failing to object to the prosecutor's statements regarding Petitioner wiping the gunshot residue off and loading the gun with malice aforethought, the Magistrate Judge found that the PCR court's decision was not contrary to or an unreasonable application of clearly established federal law. Petitioner objects and argues that, regardless of whether there was evidence in the record that Petitioner may have wiped off the gun, trial counsel should have objected to the prosecutor's statement that the only explanation was that Petitioner had wiped off the gun. ECF No. 37 at 25. Petitioner further argues that there was no evidence that the gun was unloaded or that the safety had been set. Id. Accordingly, trial counsel should have objected to the prosecutor's statements where she asked the jury to find a key element of murder based upon inaccurate claims. Id. He contends that the Magistrate Judge erred in concluding that these statements represented reasonable inferences from the evidence introduced at trial. Id. at 28.
The PCR court found that,
Applicant further complains that counsel should have objected to the solicitor's closing argument where she theorized that Applicant wiped the gun clean after the shooting. In Applicant's second written statement to law enforcement, he told law enforcement he went into the kitchen. From this, the solicitor theorized it was to wipe the gun clean. This Court finds that based on the record, this argument was not objectionable. This Court finds that it is a reasonable theory based on the evidence. The solicitor's closing is permissible where it stays within the record and reasonable inferences to it. Humphries v. State, 351 S.C. 362, 570 S.E.2d 160 (2002). This Court finds counsel's performance was not deficient for failing to object, nor was the Applicant prejudiced by the failure to object. The allegation is denied.App. 1126-27. The PCR court's denial of the Petitioner's ineffective assistance claim was neither contrary to nor an unreasonable application of applicable Supreme Court precedent. Moreover, the record fails to demonstrate the PCR court confronted a set of facts that were materially indistinguishable from those considered in a decision of the Supreme Court but arrived at a result different from the Supreme Court precedent.
***
Applicant alleges counsel was ineffective for failing to object to the solicitor's instructions on how to fire the weapon. However, again, this argument was an appropriate argument based on evidence before the jury. Testimony was elicited that the gun was being stored unloaded in a drawer. The clip was not loaded in the gun. Tr. p. 427. Further, the State's firearm expert provided testimony about how to fire the weapon. Tr. pp. 309-12; see PCR hearing transcript from February 26, 2013 (PCR 2013 Tr.) pp. 76-78 (counsel agreeing argument was based on firearm expert's testimony). This argument was proper and not objectionable. Further, it was not prejudicial. Applicant fails to meet either prong of Strickland, therefore the allegation is denied.
With respect to the solicitor's statement regarding wiping the gun clean, the Court notes Petitioner's argument that there was no evidence that a towel containing gunshot residue was found at the scene, ECF No. 37 at 28; however, as stated many times in this Order, the proper inquiry on federal habeas review is whether the PCR court's decision is contrary to, or an unreasonable application of, clearly established federal law. Petitioner has pointed to no such authority in support of his argument that trial counsel should have objected to this statement. Further, trial counsel testified at the second PCR hearing that he did not object to this statement because he believed the testimony at trial showed that Petitioner could have wiped off the gun. App. 967. With respect to the solicitor's statement that Petitioner's loading of the gun and removing of the safety showed malice aforethought, trial counsel testified that he did not believe this statement was "important given our defense to the case." App. 970; see Strickland, 466 U.S. at 689 ("[A] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.
Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." (internal citation omitted)). Thus, the court concludes the PCR court's decision was not contrary to or an unreasonable application of applicable Supreme Court precedent; accordingly, these objections are overruled.
Statements Three and Four
With respect to Petitioner's arguments that the prosecutor and trial counsel referred to the victim's death as a suicide, the Magistrate Judge determined that these claims were raised to but not ruled upon by the PCR court. ECF No. 30 at 33. She then found that Petitioner failed to establish that he is entitled to federal habeas relief with respect to these claims. Id. Petitioner argues that the Report overlooks Petitioner's claim that trial counsel was ineffective for arguing that the victim committed suicide in light of Petitioner's testimony that they struggled over the gun. Petitioner cites to Carey v. Maulden without further explanation.
It appears this citation is a scrivener's error and counsel intended to cite to Carey v. Musladin, 549 U.S. 70 (2006), which she refers to for the general habeas corpus standard for relief. See ECF No. 37 at 4.
The Court has already determined that Petitioner is not entitled to federal habeas relief with respect to his argument that trial counsel was ineffective for arguing that the victim committed suicide. Moreover, as explained by the Magistrate Judge, there was ample evidence that the victim committed suicide, including Petitioner's testimony. App. 620-21, 660. Accordingly, Petitioner is not entitled to federal habeas relief with respect to these claims.
Ground Eight
As previously explained, the Report's and the objection's discussion of Ground Eight also includes a discussion of part of Ground Two. In Ground Eight, Petitioner argues that trial counsel was ineffective for failing to introduce expert testimony concerning shock and post-traumatic stress and their possible impact on Petitioner's statements. ECF No. 1-1 at 46-48. In second claim under Ground Two, Petitioner asserts that trial counsel was ineffective for failing to introduce such expert testimony to support the suppression of Petitioner's statements and to aid the jury in discounting Petitioner's statements. Id. at 20-27.
The Magistrate Judge found that the PCR court's decision was not contrary to or an unreasonable application of clearly established federal law. Petitioner objects and argues that Dr. Thomas Martin's deposition testimony, which was introduced at the second PCR hearing, provided a foundation for examining the general subject of post-traumatic stress and its application to the challenge of a statement given under circumstances conducive to shock and the ways that expert testimony could have been helpful to the jury. ECF No. 37 at 34. Petitioner contends that the PCR court did not rule upon the argument that trial counsel erroneously believed that he could not hire such an expert because he could have had Petitioner declared indigent and requested funding from the Office of Indigent Defense. Id. at 32.
The PCR court found that,
Applicant alleges counsel should have used an expert on post-traumatic stress disorder to explain his behavior during and after the shooting. Counsel testified that he felt his resources were better utilized with the expert pathologist that testified at trial. He was concerned that such behavioral evidence would open the door for acts concerning Applicant's conduct with his wife and his military service. Counsel admittedly had difficulty recalling and articulating his precise trial strategy, although he testified credibly that he had a strategic reason for not retaining this kind of expert.
This Court finds that Applicant has not met his burden of proving counsel's performance deficient. Counsel considered and rejected hiring such an expert and determined that he was better served in hiring pathologist, Dr. Ward. The potential for opening the door when presenting evidence of a defendant's behavior, when a defendant has had such bad behavior, is understandable. Further, there was some difficult to explain self-protective actions, like the fact that Applicant put the weapon in the deceased's hands and that he bought two bottles of soda and two packs of cigarettes to make it look like he was away at the store when the victim shot herself. Counsel was concerned that a psychiatric expert could backfire. See PCR 2013 Tr. pp. 83-88. This Court cannot say his reservations were unreasonable and therefore finds that counsel exercised reasonable trial strategy.
Further, Applicant has not met his burden of proving prejudice. Applicant submitted deposition testimony from Dr. Thomas Martin. Dr. Martin never met with Applicant and only provided general testimony about post-traumatic stress disorder. Dr. Martin was unable to give any opinion about whether Applicant suffered from the disorder. While determining whether an applicant suffered from such a disorder at the time of the homicide may be difficult ten years after the fact, this Court notes that Dr. Martin testified that he "wouldn't give up on it" had he been asked to evaluate Applicant. Deposition transcript (Depo Tr.) p. 14, line 23- p. 15, line 22. Dr. Martin further states: "But I would not write off a case simply because the person is now ten years out. Depo Tr. p. 15, lines 24-25. Regardless, Applicant failed to present expert testimony that Applicant was actually suffering from post-traumatic syndrome at the time of the offense. Accordingly, this Court finds any benefit from retaining an expert at trial speculative. This Court finds that Applicant has failed to meet his burden of proving prejudice. Accordingly, the allegation is denied.App. 1131-32. The PCR court's denial of the Petitioner's ineffective assistance claim was neither contrary to nor an unreasonable application of applicable Supreme Court precedent. Moreover, the record fails to demonstrate the PCR court confronted a set of facts that were materially indistinguishable from those considered in a decision of the Supreme Court but arrived at a result different from the Supreme Court precedent.
Petitioner argues that he did not have to choose between the pathologist he hired and an expert to testify regarding post-traumatic stress and shock; however, that is not the only reason articulated by trial counsel to explain why he did not hire such an expert. He testified that he was concerned about testimony coming in regarding Petitioner's relationship with his wife and his military history. Petitioner has presented no support for his assertion that this finding by the PCR court was contrary to or an unreasonable application of clearly established federal law. With respect to the PCR court's conclusion that the need for such an expert is speculative because there is no evidence that Petitioner suffered from post-traumatic stress at the time of the victim's death, Petitioner responds that the Report did not sufficiently credit the fact this would be virtually impossible all these years later. ECF No. 37 at 34. However, that difficulty does not entitle Petitioner to federal habeas relief on this claim. see Bradford, 953 F.2d at 1012 (holding that ineffective assistance of counsel claims that are based on speculation do not meet the burden of showing prejudice under Strickland). Thus, these objections are overruled.
To the extent that Petitioner intends to argue that there was no viable evidence that his wife was afraid of him because she "took him back" multiple times, ECF No. 37 at 33, the Court will not entertain a poorly reasoned argument that a person cannot both be afraid of someone and also continue the relationship. --------
CONCLUSION
The Court adopts the Magistrate Judge's Report and Recommendation [30]. Accordingly, Respondent's Motion for Summary Judgment [15] is GRANTED.
CERTIFICATE OF APPEALABILITY
The governing law provides that:
(c) (2) A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.
(c) (3) The certificate of appealability . . . shall indicate which specific issue or issues satisfy the showing required by paragraph (2).28 U.S.C. § 2253(c). A prisoner satisfies the standard by demonstrating that reasonable jurists would find this Court's assessment of his constitutional claims debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate of appealability has not been met. Therefore, a certificate of appealability is DENIED.
IT IS SO ORDERED.
s/ Donald C. Coggins, Jr.
United States District Judge September 13, 2018
Spartanburg, South Carolina