Opinion
C/A No.: 1:19-2329-SAL-SVH
05-18-2020
Gabriel Jon Rios, #344751, Petitioner, v. Warden Williams, Respondent.
REPORT AND RECOMMENDATION
Gabriel Jon Rios ("Petitioner") is an inmate at the McCormick Correctional Institution of the South Carolina Department of Corrections who filed this pro se 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 filed on December 9, 2019. [ECF Nos. 16, 17]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 18]. Petitioner filed a response to the motion on April 10, 2020. [ECF No. 37]. Also before the court is Petitioner's motion for partial summary judgment filed on March 12, 2020. [ECF No. 30]. Respondent has filed no response to Petitioner's motion, and the time to do so has expired.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted and Petitioner's motion for partial summary judgment be denied. I. Factual and Procedural Background
The evidence at trial established the following facts: Prior to August 14, 2010, the day of the incident in question, Petitioner had worked for Phil Holt on and off for a number of years, including working on the Holts's home and helping to install a safe in the closet of the home. [ECF No. 16-1 at 151:24-152:17].
On August 14, 2010, a Saturday, Gail Holt ("victim"), wife of Phil Holt, awoke a little before 7:30 a.m. after her husband had left their home for work earlier that morning. Id. at 109:1-9. She testified she heard glass break, and went to investigate, encountering Petitioner, who she knew as "Gabe." Id. at 109:20-23, 110:1-11, 133:9-11. At the time of the robbery, she testified she was not familiar with Petitioner's full name and only knew him as "Gabe." Id. at 133:9-11.
The victim testified she recognized Petitioner immediately and that she also recognized his voice, which she described as "very distinctive." Id. at 110:22-111:4. She testified there was nothing covering Petitioner's face, he was wearing a hoodie, and when she came upon him, she was "face-to-face" with him. Id. at 111:11-18. She could not tell what he was carrying, but he told her to turn around and then held a sharp object up to her neck. Id. at 111:16-20.
The victim testified Petitioner forced her down the hall to the office, demanded she open the closet, and then demanded she open the safe inside the closet. Id. at 112:1-113:2. She did not know the combination to the safe and could not open it at Petitioner's repeated demand. Id.. She testified that she never referred to Petitioner by name during the robbery and instead only addressed him as "sir," explaining that she believes in guardian angels and something told her not to use his name, so that he would believe he was in control. Id. at 113:1-6. However, she testified that she knew his name at the time the robbery was taking place. Id. at 113:7-8.
Petitioner forced her back into the master bedroom and instructed her to lie face down. She complied and he proceeded to tape her hands behind her back. Id. at 113:14-24. Petitioner proceeded to steal a pistol and rummaged through her purse and jewelry drawers for valuables, and, during this time, threatened to kill her if she did not stay still. Id. at 114:2-115:13. Petitioner fled the home after taking the pistol, the money from the purse, her cell phone, and her Lexus vehicle. Id. at 115:14-25. She testified that after Petitioner left, she took a few minutes to get herself unbound from the tape, after which she called her husband. Her husband then called 911. Id. at 116:4-16.
The victim testified the incident occurred around 7:30 and 8:00 a.m. Id. at 118:9-14. Phil Holt was the first to arrive after the robbery, and the police followed shortly behind him. Id. at 131:25-132:8.
At trial, Petitioner called the first officer to respond to the scene, David Welch ("Welch"), who testified that the Holts failed to give him Petitioner's name when he arrived. Id. at 266:6-268:17. The victim testified that she could not recall the names of the officers she spoke to, but that she provided police with a description of the robber and told police that she knew the identity of the robber as "Gabe." Id. at 133:2-10, 138:11-18. She testified Lorin Williams ("Williams"), an investigator with the South Carolina Spartanburg County Sheriff's Department, presented her with a photographic lineup later that morning. Id. at 133:11-13. She testified that she recognized Petitioner, identified him by circling his photo, was absolutely sure of her selection, and made the selection without hesitation. Id. at 134:16-135:12. She testified no one suggested toward or pressured her into a selection. Id. at 135:13-19. She then identified Petitioner in court as the man who committed the robbery. Id. at 136:1-14.
Phil Holt testified that in Spring 2010, he locked himself out of house, had to break a pane of glass to get in, and then installed a replacement. Id. at 155:12-25. He testified it was this pane of glass that Petitioner broke to get into the house and Petitioner had not been in the house for a year prior to Spring 2010, when the pane was replaced. Id. at 155:17-156:11. Ruth Glenn, a neighbor of the Holts, testified to seeing a newly-replaced pane of glass and unfinished molding in Spring 2010. Id. at 174:4-175:15. A print taken from a broken triangular piece of glass from the broken pane found in the hallway of the home matched the prints on file for Petitioner. Id. at 236:4-240:18, 210:11-211:9.
Estar Byrd ("Byrd") testified she did not really "know" Petitioner, but she let him use her landline phone from time to time, her phone number was xxx-xxxx, and she had no memory of the date of the crime. Id. at 269:18-271:2. Petitioner's wife, Sonia Rios ("Rios"), testified she received a telephone call from her husband from Byrd's landline the morning of the crime at 7:25 a.m. Id. at 273:10-278:8. Curtis Jones ("Jones"), trial counsel's investigator, drove the route from Byrd's house to the Holts's house and testified the distance was 5.2 miles and took 16 minutes. Id. at 282:1-285:5.
The phone records at issue in this case are T-Mobile records, but are referred to in the record as both T-Mobile and AT&T records. [See ECF No. 16-1 at 488]. Trial counsel did not enter the phone records into evidence, but used them to refresh Rios's recollection. Id. at 273:10-278:25. The phone records indicate that Rios received a one-minute phone call from the number in question at 7:22 a.m. on the incident date. Id. at 488.
Petitioner was indicted by the Spartanburg County grand jury during the November 2010 term of court for burglary first degree (2010-GS-42-6830), armed robbery and possession of a weapon during a violent crime (2010-GS-42-6831), kidnapping (2010-GS-42-6833), and assault and battery (2010-GS-42-6834). [ECF No. 16-2 at 62-71]. He was represented by Matthew Shealy, Esq. ("trial counsel"), and proceeded to a jury trial on February 26, 2013, before the Honorable R. Lawton McIntosh, Circuit Court Judge. [ECF No. 16-1 at 3]. The jury found Petitioner guilty, and he was sentenced to 40 years imprisonment for burglary first, 30 years concurrent for armed robbery, 30 years concurrent for kidnapping, 10 years concurrent for assault and battery, and 5 years consecutive for possession of a weapon during a violent crime. Id. at 369-371, 378.
Petitioner appealed his conviction to the South Carolina Court of Appeals ("Court of Appeals"). Id. at 383. On appeal, Petitioner was represented by Katherine H. Hudgins, Esq. Id. Petitioner raised the following issue to the Court of Appeals in his direct appeal:
Did the trial judge err in refusing to charge the jury with the law on alibi when Appellant presented alibi evidence at trial?Id. at 386. The State filed a responsive brief on May 23, 2014. Id. at 397. Petitioner filed his reply on June 3, 2014. Id. at 417. On March 11, 2015, the Court of Appeals filed an unpublished opinion affirming Petitioner's conviction. [ECF No. 16-3].
Petitioner filed an application for post-conviction relief ("PCR") on June 3, 2015. [ECF No. 16-1 at 428]. The State made its return on February 11, 2016. Id. at 436. Petitioner submitted an amended PCR application, in which Petitioner raised the following allegations:
Was counsel ineffective for conceding Applicant's guilt during closing summation to the jury, that was a fact to be determined by the jury?[ECF No. 16-1 at 491-502, ECF No. 16-2 at 3-8]. A PCR evidentiary hearing was held before the Honorable Edward W. Miller, Circuit Court Judge ("PCR court"), on January 30, 2017. [ECF No. 16-1 at 442]. Petitioner was represented by attorney Susannah C. Ross, Esq. ("PCR counsel"). Id. At the conclusion of the hearing, Judge Miller ruled from the bench that Petitioner had not met his burden of proof and denied post-conviction relief. Id. at 484-85. A formal order of dismissal followed on March 27, 2017, in which the PCR court noted the following PCR allegations:
Was counsel ineffective for failing to object to the prosecution's improper comments during closing summation that shifted the burden of proof in violation of the Due Process Clause?
Was counsel ineffective for failing to impeach the State's star witness that contradicted her trial testimony in regards to the identity of the perpetrator?
1. Ineffective Assistance of trial counsel in that:
a. "prior and during trial [in violation] of his rights pursuant to the Sixth and Fourteenth Amendment to
ECF No. 16-2 at 19-20.the United States Constitution, as well as Article I Section 14 of the South Carolina Constitution"
b. Counsel "failed to object to Solicitor shifting the burden" during his closing argument
c. Counsel "failed applicant by conceding his guilt" in his closing argument
d. Counsel failed to adequately advise Applicant
e. Counsel failed to adequately investigate
f. Counsel failed to admit the 911 tape and AT&T phone records at trial
g. Counsel failed to advise Applicant that he should testify at trial
h. Failure to impeach
i. Failure to put forth an alibi defense
PCR counsel filed a motion to alter or amend the judgment on April 11, 2017. Id. at 32. The State filed a return on April 17, 2017, conceding the lack of ruling on the allegation that counsel was ineffective for failing to impeach. Id. at 42. An amended order of dismissal was filed on June 29, 2017, addressing the excluded allegation, and denying relief. Id. at 45.
Petitioner also filed a pro se motion to reconsider on April 13, 2011. [ECF No. 16-2 at 38].
With counsel's assistance, Petitioner filed a petition for writ of certiorari on January 16, 2018, raising the following three issues:
Whether trial counsel's failure to use cell phone records to substantiate petitioner's alibi constitutes ineffective assistance under the Sixth Amendment.
Whether trial counsel's failure to impeach the victim's claim that she recognized appellant as the intruder "immediately" with the
911 call, made by her husband with the victim's voice audible in the background, on which the 911 operator asks, "Who is he? Do you know who he was?" and the husband replied, "Don't know," constitutes ineffective assistance under the Sixth Amendment?[ECF No. 16-4]. The State made its return on July 2, 2018. [ECF No. 16-5]. The matter was transferred to the Court of Appeals, which denied certiorari on April 10, 2019. [ECF No. 16-6]. The remittitur was issued on April 26, 2019. [ECF No. 16-7].
Whether trial counsel's failure to object to the solicitor's burden-shifting closing argument that appellant had "over two and a half years, since this incident happened, to come up with this story and that is all this is just a story. No one said they were with him that morning, Nobody, nobody that testified for him accounted for his whereabouts. Nobody," constitutes ineffective assistance under the Sixth Amendment?
On July 17, 2019, Petitioner filed a second PCR application, in which he asserts newly discovered evidence of actual innocence on the basis of investigatory and prosecutorial misconduct on the part of Williams, the main officer that handled the investigation. [ECF No. 16-8 at 9-10]. Petitioner relies upon the fact that Williams was terminated from his position with the Spartanburg County Sheriff's Office in January 2019 for falsely attributing facts within a warrant for arrest in a separate matter. Id.
Respondent mailed a letter to Petitioner disclosing Williams's termination and enclosing a copy a letter received by Respondent explaining the context of Williams's termination. [ECF No. 16-9]. According to Respondent, the enclosed letter was a copy of the 7th Circuit solicitor's letter explaining the basis of the termination, stating in pertinent part as follows:
On January 11, 2019 you (Inv. Williams) were issued a search warrant on CRI information. This warrant was executed on January 15, 2019. In the affidavit, you swore to the facts that the information came from a confidential reliable informant and this CRI had provided information in the past to law enforcement that has been verified as truthful and has led to the seizure of illegal narcotics as well as the arrest of persons involved in illegal narcotics sales. This is not accurate, as this person claimed to be a CI was never signed up for that purpose. You neglected to confirm this information before using this person's information to secure a search warrant.[ECF No. 16 at 5].
This is a serious violation of Sheriff's Office Policy and has potential for other serious repercussions. It is a very unfortunate situation as this is going to result in the termination of your employment.
Respondent has submitted to the court its letter to Petitioner disclosing Williams's termination, but this submission does not include the enclosed letter received by Respondent from the 7th Circuit solicitor. [See ECF No. 16-9, ECF No. 16 at 5].
On August 19, 2019, Petitioner filed the instant petition for writ of habeas corpus and a motion to hold his case in abeyance. [ECF Nos. 1, 2]. Petitioner asserts he is entitled to a writ of habeas corpus on multiple grounds, discussed more below, including the same grounds he asserted in his second PCR application. [ECF No. 1 at 5]. Petitioner further notes his state remedies concerning this ground are currently pending in Spartanburg County Court, case number 2019-CP-42-02536. Id. at 5-6. Petitioner argues his case should be held in abeyance until resolution of his second PCR. [ECF No. 2].
Petitioner placed his petition in the mail at the McCormick Correctional Institution mailroom on August 15, 2019. [ECF No. 6-1 at 30]. Petitioner's envelope did not contain a mailroom receipt stamp.
On December 9, 2019, Respondent filed a return and motion for summary judgment, stating in part as follows: "Respondent is unaware of any wrongdoing on the part of Investigator Williams in this matter, and Petitioner's PCR Application fails to articulate any evidence of wrongdoing beyond conjecture that he was framed by the victims." [ECF No. 16 at 5].
Notwithstanding, Respondent also states:
Given the more sensitive nature of the claim, Respondent anticipates that Petitioner will be assigned counsel to pursue this second PCR application and Respondent will update the Court as this matter progresses . . . .
Respondent finds no merit to the underlying successive claims. Nevertheless, the Petition for Writ of Habeas Corpus asserts an unexhausted claim of newly discovered evidence that is currently being litigated in state court. As such, this Court, in its discretion, may find that an Order Staying or Holding in Abeyance is necessary during the pendency of the PCR action. Rhines v. Weber, 544 U.S. 269, 274, 125 S. Ct. 1528, 1533, 161 L. Ed. 2d 440 (2005).
The court takes judicial notice of Petitioner's pending PCR application. See Aloe Creme Labs., Inc. v. Francine Co., 425 F.2d 1295, 1296 (5th Cir. 1970); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) ("We note that 'the most frequent use of judicial notice is in noticing the content of court records.'"). The only actions that have occurred in this case consist of the filing of the PCR application on July 17, 2019, the filing of an amended PCR supplement on August 19, 2019, and the filing of an amended PCR supplement and service on August 29, 2019. No action has been taken by the court or the government.
On December 11, 2019, the undersigned entered an order denying Petitioner's motion to hold the case in abeyance. [ECF No. 20]. On March 12, 2020, Petitioner filed the instant motion for partial summary judgment, arguing in part that the order denying his motion to hold the case in abeyance is contrary to 28 U.S.C. § 636(b)(1)(A)-(B) because no R&R was issued. [ECF No. 30 at 6]. II. Discussion
A. Federal Habeas Issues
Petitioner asserts he is entitled to a writ of habeas corpus on the following grounds:Ground One: "Petitioner is actually and factually innocent due to the investigative and prosecutorial misconduct and it is pending in PCR court at this time under newly discovered evidence pursuant to S.C. Code Ann. §17-2745(c)."
Supporting Facts: "Investigator Lorin Williams with the S.C. Spartanburg County Sheriff's dept. has been fired and indictments [sought] for misconduct in office by intentionally staging cases of innocent defendants. The Petitioner has supporting documents to prove that he was illegally incarcerated by illegal police tactics by Officer Lorin Williams as the Petitioner can prove actual and factual innocence." Petitioner claims "Mr. Williams took information [from] a person that was not there and who was already told the first officer on the scene that it was an unknown suspect. Mr.
Williams did not have proper cause to get a warrant for Mr. Rios and this case should be dismissed." Petitioner then references Williams's termination for attesting to false statements in the warrant of another case.Ground Two: "The trial court and subsequent reviewing courts erred in ruling the trial judge did not error in refusing to charge the jury with the law on alibi when Petitioner presented alibi evidence at trial."
Supporting facts: "The Petitioner presented evidence that would have supported an alibi defense instruction, yet the Judge did not give an alibi instruction to the jury." Petitioner references the testimony of Boyd, his 7:25 a.m. phone call that morning, and the distance to travel between Boyd's home and the home where the robbery occurred as substantiating his alibi.Ground Three: "The PCR court and subsequent reviewing courts erred in failing to find counsel rendered ineffective assistance of counsel when counsel conceded Petitioner's guilt during closing summary to the jury, a fact to be determined by the jury."
Supporting facts: "In the Applicant's closing summation, [counsel stated] 'he knows what painter's tape is . . . but maybe it was the only tape he had.' Trial counsel clearly conceded Applicant's guilt."Ground Four: "The PCR court and subsequent reviewing courts erred in failing to find counsel rendered ineffective assistance of counsel [when] failing to object to the prosecution's improper comments during closing summation that shifted the burden of proof in violation of the Due Process Clause."
Supporting facts: Petitioner references statements made by the solicitor in closing, arguing that these
comments "impermissibly shifted the burden of proof" to Petitioner.Ground Five: "The PCR court and subsequent reviewing courts erred in failing to impeach the state's star witness that contradicted her trial testimony in regard to the identity of the perpetrator."
Supporting facts: "Petitioner submits he was denied the effective assistance of counsel during trial when counsel allowed Gail Holt to identify Petitioner as the perpetrator when she had told 911 that she did not know how the perpetrator was and as a result of this deficiency Petitioner was denied his right to cross-examination that is guaranteed by the Sixth Amendment."Ground Six: "The PCR court and subsequent reviewing court erred in failing to find trial counsel rendered ineffective assistance of counsel prior [to] and during trial in violation of his rights pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, as well as Article 1, Section 14 of the South Carolina Constitution."
Supporting facts: Counsel (1) failed to object to Solicitor's shifting the burden during his closing argument, (2) failed applicant by conceding his guilt in closing argument, (3) failed to adequately advise Petitioner, (4) failed to adequately investigate, (5) failed to admit the 911 tape and phone records at trial, (6) failed to advise Petitioner that he should testify at trial, (7) failed to impeach, (8) failed to put forth an alibi defense.[See ECF No. 1, ECF No. 1-1].
The undersigned has renumbered Petitioner's grounds and edited the same for clarity.
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.
The moving party has the burden of proving 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 Fed. R. Civ. P. 56(c), set forth specific facts showing there is a genuine dispute for trial.
C. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Noland v. French, 134 F.3d 208, 213 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(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.
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). Furthermore, 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.
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) (internal citations 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 O'Sullivan." 559 S.E.2d at 854. As such, it is an "extraordinary" remedy under O'Sullivan, "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).
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's 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 v. Thompson, 501 U.S. 722, 750 (1991), or by "prov[ing] that failure to consider the claims will result in a fundamental miscarriage of justice." Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir.), cert. denied, 555 U.S. 868 (2008). 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 Claims
To prevail on his ineffective assistance of counsel claims, Petitioner must show (1) that his 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. That the outcome would "reasonably likely" have been different but for counsel's error is not dispositive of the prejudice inquiry. Rather, the court must determine whether the result of the proceeding was fundamentally unfair or unreliable. Harrington, 562 U.S. at 104; Strickland, 466 U.S. at 694.
The United States Supreme Court has cautioned that "'[s]urmounting Strickland's high bar is never an easy task[,]' . . . [e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Harrington, 562 U.S. at 88 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). When evaluating an ineffective assistance of counsel claim, the petitioner must satisfy the highly deferential standards of 28 U.S.C. § 2254(d) and Strickland "in tandem," making the standard "doubly" more difficult. Harrington, 562 U.S. at 105. In such circumstances, the "question is not whether counsel's actions were reasonable," but whether "there is any reasonable argument that counsel satisfied Strickland's deferential standards." Id. The unreasonableness of the state court determination must be "beyond any possibility of fairminded disagreement." Id. at 103. "If this standard is difficult to meet, that is because it was meant to be." Id. at 102. Section 2254(d) codifies the view that habeas corpus is a "'guard against extreme malfunctions in the state criminal justice system,' not a substitute for ordinary error correction through appeal." Id. at 102-103 (citing Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).
D. Analysis
1. Petitioner's Motion for Partial Summary Judgment
As a preliminary matter, the undersigned addresses Petitioner's arguments in his motion for partial summary judgment.
a. Mixed-Petition Doctrine
Petitioner argues this court is in violation of the mixed-petition doctrine as articulated in Rose v. Lundy, 455 U.S. 509 (1982) by denying his motion to hold the case in abeyance and proceeding with his petition. [ECF No. 30 at 4]. In support of his motion, Petitioner submits his second PCR application and supplemental documentation. [See ECF No. 30-1 at 17]. In both the second PCR application and all additional related filings, Petitioner recounts inconsistencies he perceives occurred among the testimony provided at his trial by the victim, Phil Holt, and Williams, further arguing that in Petitioner's case, "Williams went and obtained a warrant for my arrest by falsifying documents stating that [the victim] identified me when [Williams] got information from the husband, who was not there." [ECF No. 30-1 at 19]. Petitioner argues that Williams was likewise arrested and fired in January 2019 "for falsifying documents to get warrants to arrest people." Id.
Regarding these inconsistencies, Petitioner appears to argue the following chain of events occurred: (1) the victim did not recognize the perpetrator and informed her husband of that fact, (2) Phil Holt, not the victim, told Williams that Petitioner was the perpetrator, (3) based on information provided by Phil Holt, not the victim, Williams secured the arrest warrant, and (4) "[d]uring trial they came up with a story that she immediately recognized [Petitioner] after telling her husband she didn't know who it was." [See, e.g., ECF No. 30-1 at 18-19].
A federal habeas case may be stayed and held in abeyance "where such a stay would be a proper exercise of discretion." Rhines v. Weber, 544 U.S. 269, 276 (2005). In certain instances where a petitioner files a mixed petition, one containing both exhausted and unexhausted claims, an exercise of such discretion would be proper. Id. at 272-73, 276.
Before Rhines and the enactment of the AEDPA, total exhaustion of state remedies was required before the filing of a federal habeas petition, requiring all mixed petitions to be dismissed without prejudice. Lundy, 455 U.S. 509; Rhines, 544 U.S. at 273-74. As discussed above, the AEDPA included a one-year statute of limitations for the filing of federal habeas petitions under § 2254. After the AEDPA's enactment, the Supreme Court modified the rule regarding mixed petitions in certain limited circumstances, such as situations where a mixed petition is timely filed in federal court, but dismissal of the federal habeas petition may result in time-barring the petition from returning to federal court after a petitioner completes his obligation to exhaust all issues in state court. Rhines, 544 U.S. at 275. Therefore, the Rhines Court held that a district court may in limited circumstances stay a habeas proceeding; however, a stay is "only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. at 277. Additionally, "even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless." Id. Accordingly, a stay should be granted where a petitioner demonstrates "good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Id. at 278.
Here, denial of Petitioner's motion to stay was appropriate in that, to the extent Petitioner has an unexhausted claim, it lacks merit.
First, it appears that Petitioner's claim made in his second PCR application is exhausted, but procedurally defaulted. Petitioner is arguing Williams falsified documents to obtain an arrest warrant to arrest him and otherwise acted inappropriately in his investigation. However, the record in this case is devoid of any evidence that Williams falsified documents or otherwise engaged in inappropriate behavior, and Petitioner has not explained why these issues could not have been raised before his first PCR application was denied and dismissed, to the extent they were not. Because allegations of inappropriate behavior on the part of Williams were not raised at any stage of the PCR and PCR appeal litigation, this ground is unpreserved. See, e.g., McKnight v. Joyner, C/A No. 8:18-01871-JFA-JDA, 2019 WL 6170748, at *10 (D.S.C. June 13, 2019) (citations omitted) ("Having used up his direct appeal and PCR action, [the petitioner] has no further means of getting the state courts to hear his claims. Thus, the claims are procedurally defaulted. Because procedurally defaulted claims are exhausted ones, his petition is not a mixed one. Thus, he is not eligible for relief under Lundy or Rhines."), report and recommendation adopted, C/A No. 8:18-1871-JFA-JDA, 2019 WL 4386033 (D.S.C. Sept. 13, 2019).
To the extent Petitioner argues, for example, the victim did not originally recognize the perpetrator, then inconsistently testified that she immediately recognized the perpetrator as Petitioner, and trial counsel erred in failing to impeach her as a witness, this argument was raised during Petitioner's initial PCR application and is the substance of Ground Five, addressed below.
Second, to the extent Petitioner's claim is unexhausted in that it is based on the newly-discovered evidence that Williams was arrested and fired from his position as investigator in January 2019, Petitioner's claim lacks merit. This is the only newly-discovered evidence offered by Petitioner in support of Ground One and his second PCR application. However, Williams's arrest and firing occurred almost a decade after the events in question in this case and occurred in connection to a case unrelated to Petitioner's.
Although Petitioner argues that the Spartanburg County Sheriff's Department, the Solicitor's Office, and the Attorney General's Office are investigating Williams's cases from the last 20 years [see, e.g., ECF No. 30-1 at 11], as stated above, Petitioner offers no evidence in support of his allegations that Williams acted inappropriately in the instant case.
Petitioner further argues the undersigned erred by issuing an order denying his motion to hold his case in abeyance instead of issuing a report and recommendation to the district court. In support, Petitioner cites Mitchell v. Valenzuela, 791 F.3d 1166 (9th Cir. 2015), wherein the Ninth Circuit held as follows:
A magistrate judge denied petitioner Keith Andrew Mitchel's motion to stay and abey his 28 U.S.C. § 2254 habeas corpus petition while he exhausted some of his claims in state court. We hold that, in the context of a section 2254 habeas petition, this type of motion is generally (but not always) dispositive as to the unexhausted claims. When it is dispositive, a magistrate judge is without authority to "hear and determine" such a motion, but rather must submit a report and recommendation to the district court. 28 U.S.C. § 636(b)(1)(A)-(B).Id. at 1167.
Although Petitioner cites to no binding precedent in this Circuit, nor is the court aware of any, holding that a magistrate judge may be obligated to submit a report and recommendation to the district court under the circumstances of the instant case, in an abundance of caution, the undersigned vacates the order denying Petitioner's motion to hold his case in abeyance and issues this report and recommendation, recommending that the district court deny Petitioner's motion for the reasons articulated above. For the reasons stated above, the undersigned additionally recommends the district court deny Petitioner's motion for partial summary judgment and grant Respondent's motion for summary judgment as to this issue, dismissing Ground One.
b. Sentencing Challenge
In his motion for partial summary judgment, Petitioner also challenges the sentence he received for burglary first degree, arguing that he can "overcome procedural default . . . for the Respondent illegally sentencing the Petitioner to forty (40) years for burglary first." [ECF No. 30 at 11]. Petitioner cites S.C. Code Ann. § 16-11-311 which provides in part that "Burglary in the first degree is a felony punishable by life imprisonment. For purposes of this section, 'life' means until death. The court, in its discretion, may sentence the defendant to a term of not less than fifteen years."
Petitioner did not raise this issue on PCR or PCR appeal, and it is therefore procedurally defaulted. Additionally, Petitioner has made no showing that the sentence he received is inconsistent with S.C. Code Ann. § 16-11-311.
It appears that Petitioner's argument is based on an incorrect reading of S.C. Code Ann. § 16-11-31 that burglary in the first degree, as argued by Petitioner, carries "a 15 year sentence or life imprisonment." [ECF No. 30 at 12]. However, this statute provides that the district court may sentence a defendant to a term of not less than fifteen years, meaning a district court may sentence a defendant to a term of more than fifteen years, up to and including a life sentence.
Accordingly, the undersigned recommends the district judge deny Petitioner's motion for partial summary judgment.
2. Procedurally-Barred Grounds
Respondent alleges that Ground Three, Ground Four, in part, and Ground Six, in part, are procedurally barred because they were not raised to nor ruled upon in Petitioner's PCR appeal. The undersigned agrees.
Respondent also argues that Ground One is procedurally defaulted, albeit noting that this ground "presents a complex issue regarding procedural default." [ECF No. 16 at 14]. The court has already addressed Ground One above.
In Ground Three, Petitioner argues that trial counsel was ineffective for conceding Petitioner's guilt during closing argument. [ECF No. 1-1 at 7-8].
In Ground Four, in part, Petitioner argues that statements made by the solicitor in closing at trial impermissibly forced the jury to "pick sides" between the testifying witnesses, and trial counsel was ineffective for failing to object to these statements. [ECF No. 1-1 at 9-10].
In Ground Six, Petitioner presents a generalized claim of ineffective assistance of counsel supported by eight specific arguments, including that trial counsel (2) failed by conceding Petitioner's guilt in closing argument, which is duplicative of Ground Three, (3) failed to adequately advise Petitioner, (4) failed to adequately investigate, and (6) failed to advise Petitioner that he should testify at trial. Id. at 13.
Under Ground Six, Petitioner also argues that trial counsel (1) failed to object to solicitor's shifting the burden during his closing argument, (5) failed to admit the 911 tape and phone records at trial, (7) failed to impeach, and (8) failed to put forth an alibi defense. [ECF No.1-1 at 13]. Arguments (1) and (7) are duplicative of Grounds Four and Five and are discussed in conjunction with their associated grounds. Thus, the only arguments to be addressed under Ground Six are arguments (5) and (8).
Because these claims were not raised to or ruled upon by the state appellate courts, they were not preserved for review. See, e.g., Coleman, 501 U.S. 722 (holding issue not properly raised to state's highest court, and procedurally impossible to raise there now, is procedurally barred from review in federal habeas). As a result, these claims were not properly presented to the South Carolina appellate courts, which would find them procedurally defaulted if Petitioner attempted to raise them now. Accordingly, these claims are barred absent a showing of cause and actual prejudice or actual innocence. Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
3. Cause and Prejudice
Petitioner has not shown sufficient cause and prejudice to excuse the default of these grounds. In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claim is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Petitioner has failed to meet this burden. Thus, these claims are procedurally barred from consideration by this court and should be dismissed. See 28 U.S.C. § 2254; Rodriguez v. Young, 906 F.2d 1153, 1159 (7th Cir. 1990) ("Neither cause without prejudice nor prejudice without cause gets a defaulted claim into Federal Court."); Mazzell v. Evatt, 88 F.3d 263, 269 (4th Cir. 1996) (finding that in order to show prejudice a petitioner must show that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different); Rodriguez, 906 F.2d at 1159 (a fundamental miscarriage of justice occurs only in extraordinary cases, "where a constitutional violation has probably resulted in the conviction of one who is actually innocent") (citing Murray); Sawyer v. Whitley, 505 U.S. 333, 348 (1992).
The existence of cause must ordinarily turn on whether the prisoner can show some objective factor external to the defense impeded counsel's or his efforts to comply with the state's procedural rule. Murray, 477 U.S. at 488. Petitioner fails to articulate cause for procedurally defaulting on these claims. Petitioner had a PCR appeal in which to raise these issues. However, he failed to raise them. Petitioner cannot establish cause and prejudice because he has abandoned the opportunities to preserve these issues.
In his response to summary judgment, Petitioner cites to Martinez v. Ryan, 566 U.S. 1 (2012). [See ECF No. 37 at 8-9, 12, 45-47]. Specifically, Petitioner argues that PCR counsel failed to raise certain issues at Petitioner's PCR hearing and was therefore ineffective, id. at 47, including that trial counsel failed to investigate, id. at 16-21, and trial counsel imputed guilt to Petitioner during closing argument, id. at 22-27.
Petitioner additionally argues that PCR counsel failed to raise the issues of trial counsel's failure to enter into evidence the telephone records, discussed under Ground Six below, and trial counsel's failure to impeach the Holts, discussed under Ground Five and Ground Six below, and trial counsel's failure to object to the solicitor's comments made in closing, discussed under Ground Four below. [ECF No. 37 at 13-15, 31-44]. Because these grounds have been preserved, Petitioner's argument is without merit.
In Coleman v. Thompson, the Supreme Court held that ineffective assistance of counsel will constitute cause only if it is an independent constitutional violation. 501 U.S. at 755. In Martinez, the Court recognized a narrow exception to the rule established in Coleman and held that "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Martinez, 566 U.S. at 9.
[W]hen a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim in two circumstances. The first is where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington. To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.Id. at 14. (internal citation omitted).
However, Petitioner's reliance on Martinez in this case is misplaced. Regarding Petitioner's argument that trial counsel failed to adequately investigate and imputed guilt to him in closing arguments, Petitioner raised these issues in his initial collateral action [see ECF No. 16-2 at 51-54], but PCR appellate counsel elected not to present these issues to the highest state court in his PCR. Thus, Martinez is inapplicable, as ineffective assistance of PCR appellate counsel is not cause for a default. Martinez, 565 U.S. at 11; Cross v. Stevenson, C/A No. 11-2874-RBH, 2013 WL 1207067, at *3 (D.S.C. Mar. 25, 2013) ("Martinez . . . does not hold that the ineffective assistance of counsel in a PCR appeal establishes cause for a procedural default. In fact, the Supreme Court expressly noted its holding 'does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts.'") (quoting Martinez, 132 S .Ct. at 1320); Rodriguez v. Padula, C/A No. 11-1297-RBH, 2014 WL 191234, at *7 (D.S.C. May 12, 2014); Johnson v. Warden of Broad River Corr., C/A No. 12-7270, 2013 WL 856731, at *1 (4th Cir. Mar. 8, 2013) (holding PCR appellate counsel error cannot constitute cause under Martinez exception).
Petitioner also appears to argue that trial counsel and PCR counsel were ineffective for failure to raise the arguments that trial counsel had a conflict of interest and employed an unreasonable trial strategy. [ECF No. 37 at 28-30, 47]. Review of the record reveal these claims are duplicative of other claims addressed by the court and are without merit.
In the alternative to demonstrating cause and prejudice, Petitioner must show a miscarriage of justice. To demonstrate a miscarriage of justice, Petitioner must show he is actually innocent. Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 623 (1998). Petitioner cannot establish the errors he complains of probably resulted in the conviction of an innocent person. Schlup v. Delo, 513 U.S. 298, 338 (1995). In order to pass through the actual-innocence gateway, a petitioner's case must be "truly extraordinary." Id. The court's review of the record does not support a showing of actual innocence.
During the trial, the solicitor presented the facts recited in the Factual Background section above, including that the victim testified that, on August 14, 2010, she encountered Petitioner in her home. [ECF No. 16-1 at 109:20-23, 110:1-11, 133:9-11]. The victim testified she recognized Petitioner immediately and that she also recognized his voice, which she described as "very distinctive." Id. at 110:22-111:4. She testified Petitioner then taped her hands behind her back, threatened to kill her, and stole a pistol, money, the victim's cell phone, and her vehicle. Id. at 113:14-24, 114:2-115:13, 115:14-25.
The victim testified Williams presented her with a photographic lineup later that morning, and she identified Petitioner and was absolutely sure of her selection. Id. at 133:11-13, at 134:16-135:12. She then identified Petitioner in court as the man who committed the robbery. Id. at 136:1-14. Additionally, a print taken from a broken triangular piece of glass from the broken pane found in the hallway of the Holts's home matched the prints on file for Petitioner. Id. at 236:4-240:18, 210:11-211:9.
Based upon the evidence presented at trial, the jury determined Petitioner was guilty of burglary first degree, armed robbery, possession of a weapon during a violent crime, kidnapping, and assault and battery. The record makes an assertion of actual innocence not credible. The undersigned finds Petitioner has failed to meet his burden of demonstrating actual innocence, and therefore, procedural bars apply to his claims in Ground Three, Ground Four, in part, and Ground Six, in part.
Petitioner appears to argue that his procedurally-defaulted claims should be addressed by the court, notwithstanding the default, or that the court should apply a de novo standard of review, "[b]ecause the state court records are incomplete regarding" Petitioner's Martinez and Strickland claims, and these claims were "not adjudicated on the merits in state court." [ECF No. 37 at 8-9, 12]. In support, Petitioner cites Gordon v. Braxton, 780 F.3d 196, 202 (4th Cir. 2015), wherein the Fourth Circuit held that AEDPA deference as provided in 28 U.S.C. § 2254(d) applies to state court decisions that were adjudicated on the merits. The court further held a claim is not adjudicated on the merits where the state court makes its decision "on a materially incomplete record," such as "when a state court unreasonably refuses to permit further development of the facts of a claim." Id. (citation omitted). Here, however, there is no indication that the record before this court is incomplete, and Petitioner provides no evidence or argument in support of his position.
3. Merits
As to the remaining grounds, Respondent concedes the petition is timely and that these grounds are not procedurally barred. [ECF No. 16 at 11-12, 14-17]. Accordingly, the undersigned analyzes Petitioner's claims under § 2254(d) and assesses whether the state court unreasonably applied established Supreme Court precedent or based its decisions on an unreasonable determination of the facts.
a. Ground Two
Petitioner's Ground Two claim asserts that the trial court and reviewing court erred in the trial court's decision not to charge the jury on the law concerning alibi. Respondent argues that Ground Two, while raised on direct appeal and as a basis for federal habeas relief, is not cognizable for federal habeas review because the decision to decline a requested jury charge is matter of state law and is based upon the court's review of the evidence presented at trial. [ECF No. 16 at 15].
Because ordinarily "instructions to the jury in state trials are matters of state law and procedure not involving federal constitutional issues," Grundler v. State of N.C., 283 F.2d 798, 802 (4th Cir. 1960), jury instructions are not cognizable on federal habeas review, unless the giving of the instruction violated a right guaranteed by the Fourteenth Amendment. See Cupp v. Naughten, 414 U.S. 141, 146-47 (1973); Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Luchenberg v. Smith, 79 F.3d 388, 391 (4th Cir. 1996) (citation omitted) ("[A]n erroneous jury charge may form the basis of a habeas petition . . . where the instruction so infected the entire trial that the resulting conviction violates due process by rendering the trial fundamentally unfair"). Further, the mere omission of a required jury instruction is less likely to be prejudicial than an erroneous instruction. Henderson, 431 U.S. at 155.
Here, determining the proper jury charge regarding an alibi defense is a matter of state law, and "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). However, to the extent the omitted jury charge should be reviewed on the merits, the undersigned recommends finding no error.
Trial counsel requested the court instruct the jury on a defense of alibi, but the trial court declined to provide an alibi instruction where the evidence showed a partial alibi not warranting the requested instruction. [ECF No. 16-1 at 293: 4-21]. As stated by the trial judge:
Even in the light most favorable to Mr. Rios, if you look at the 7:22 or 7:24 time frame, then you add 16 minutes to it, there's still time for him to have gotten from the Florida Street address to the Perrin street address, and, therefore, there's insufficient evidence in the record for alibi to be charged because the entire time period in which the crime occurred, at least on the, based on the evidence in the record, is not covered by the other evidence presented in this matter.Id. at 291:13-21. However, the trial judge allowed Petitioner to argue the defense of alibi to the jury. Id. at 293:2-7.
There was insufficient evidence in the record to warrant an alibi charge. See State v. Robbins, 271 S.E.2d 319, 320 (S.C. 1980) ("Alibi means elsewhere, and the charge should be given when the accused submits that he could not have performed the criminal act because he was in another place at the time of its commission."); id. (citation omitted) ("To be successful, [a defendant's] alibi must cover the entire time when his presence was required for accomplishment of the crime."); Teamer v. State, No. 2013-001303, 2016 WL 1458176, at *2 (S.C. Apr. 13, 2016) (same).
Accordingly, the undersigned recommends dismissing Ground Two.
b. Ground Four
Petitioner argues his trial counsel was ineffective in failing to object to the solicitor's arguments presented in closing as follows: "He's had over two and a half years, since this incident happened, to come up with this story and that is all this is just a story. No one said they were with him that morning. Nobody, nobody that testified for him accounted for his whereabouts. Nobody." [ECF No. 16-1 at 324:24-325:3; see also ECF No. 37 at 41-44].
Petitioner cites to multiple comments made by the solicitor in closing, including the comment quoted above, and to various cases, but states only generally that "the solicitor['s] prosecutorial misconduct in this section has broken the Rules of the various United States Supreme Court cases dealing with the prosecutors in this country." [See ECF No. 37 at 41-44]. Petitioner also argues that the solicitor knowingly used the victim's perjured testimony, an argument Petitioner makes multiple times in his opposition. See id. at 35-36. However, the record does not reveal the victim's testimony to be false or that the government knowingly used any false evidence, including false testimony.
The PCR court ruled that Petitioner had failed to satisfy his burden for post-conviction relief, such that counsel's failure to object resulted in deficiency that prejudiced the outcome of trial. The PCR court stated:
Counsel is an experienced criminal defense attorney who has handled many cases similar to Applicant's. Counsel testified that if at the time of the trial, the solicitor's statements appeared troubling to Applicant's case, he would have objected. Counsel admits in hindsight he possibly should have objected to those statements. However, this Court finds that Counsel's performance was still within the range of reasonable competence required for criminal cases. Further, this Court finds that Applicant has failed to show any resulting prejudice.[ECF No. 16-2 at 24].
Petitioner cannot satisfy the Strickland test. The court has reviewed the record and cannot find that there was a substantial likelihood that the result of Petitioner's trial would have been different had counsel objected to the solicitor's arguments. As stated by the solicitor, Petitioner's evidence shows he made a one-minute phone call to Rios at 7:22 a.m., but this phone call does not account for his whereabouts thereafter.
To the extent the solicitor's statements argue an impermissible shift in burden of proof, as noted by the PCR court, there was no showing of prejudice by Petitioner. The trial court accurately instructed the jury as to the burden of proof, and there is no indication that the instruction was disregarded by the jury as a result of the solicitor's closing arguments. Petitioner has failed to overcome the doubly-deferential standard of review accorded the state court's determination of this issue of ineffective assistance of counsel under Harrington. Based on the foregoing, Petitioner is not entitled to federal habeas relief on this claim, and the undersigned recommends Ground Four be dismissed.
c. Ground Five
Petitioner argues his counsel was ineffective for failing "failing to impeach the State's star witness that contradicted her trial testimony in regards to the identity of the perpetrator," and for failure to impeach the Holts with the 911 recording. [ECF 1-1 at 11-12; see also ECF No. 37 at 31-41].
It is undisputed that Phil Holt is the primary speaker on the 911 call recording, although the victim could be heard in the background. The dispatcher asked, "Who is he? Do you know who he was?" and Phil Holt replied, "Don't know." [See ECF No. 16-4 at 12].
This issue was raised and heard by the PCR court. The PCR court stated as follows:
Counsel's strategic decision not to impeach Mrs. Holt using the 911 recording was reasonable in light of the circumstances. Even assuming arguendo that Counsel's decisions not to use the 911 recording to impeach Mrs. Holt was unreasonable, Applicant fails to demonstrate any prejudice. Not only did Mrs. Holt testify that she recognized the intruder because he worked for her husband and had met him several times, she also picked him out of a photo lineup shortly after the indecent without anyone else's influence and identified him in open court. Additionally, it was Mr. Holt who called the police to his house after receiving a frantic call from his wife. Although no identity was given during the 911 call, this Court fails to see how the recording would impeach the testimony of Mrs. Holt to the extent it would affect the outcome of Applicant's trial.[ECF No. 16-2 at 57].
First, Petitioner's argument encompasses the perceived failure of trial counsel to impeach the victim's testimony that she immediately recognized Petitioner as the suspect who committed the robbery. However, the record indicates otherwise. Counsel attempted to suppress the identification made by the victim via the Biggers motion hearing conducted prior to trial. [See ECF No. 16-1 at 26:16-51:3]. Based on the testimony offered by both the victim and Williams, the motion was denied. Id. Additionally, counsel conducted the direct examination of the first officer on the scene, Welch, specifically to address the victim's indication that the suspect was unknown. Id. at 266:1-268:3. As testified by Welch:
Neil v. Biggers, 409 U.S. 188 (1972), sets forth factors to determine whether to exclude identification testimony from an unnecessarily suggestive identification procedure.
Q: When you got there, who did you talk to first?Id. at 266:17-267:6.
A: Mr. Holt.
Q. Okay. And when you spoke with him, how did he describe the suspect?
A: He did not know the suspect at the time.
Q: Okay. Did he describe him as an unknown suspect?
A: Right.
Q: Okay. Did you speak with Mrs. Holt?
A: Yes, sir. . .
Q: And when you spoke with Mrs. Holt, how did she describe him?
A: I believe her exact words were, I'll get it, a black male, middle aged, with a ball cap.
Petitioner argues that the victim stated, at some point, that she did not know who the perpetrator was but then stated otherwise at trial. [See, e.g., ECF No. 1-1 at 2 ("When officers arrived the officers [were] met by [Phil Holt] who told the officers that his wife called him and told him that an unknown suspect came into the house and robbed her.")]. Petitioner appears to base this contention, in part, on Welch's initial report that states "Phillip states he left the residence at approx 0630 this morning. He received a call from his wife Gail that an unknown suspect broke into the residence and tied her up." [See, e.g., ECF No. 16-2 at 3-4, 11]. Welch's initial report, as to this issue, is not inconsistent with the testimony provided by Welch at trial that Phillip Holt, not the victim, did not know the identity of the perpetrator at the time of Welch's initial interview. Petitioner appears to also base this contention on the 911 recording. [See ECF No. 1-1 at 11 ("[Gail Holt] told 911 that she did not know who the perpetrator was.")]. However, the record shows it was Phil Holt, not the victim, who stated on the 911 recording that he did not know who the perpetrator was.
Welch's testimony at trial was put forth only to impeach the credibility of the victim and the accuracy of the identification of Petitioner as the suspect. As testified by trial counsel during the PCR hearing, "I could use Officer Welch to testify that she had initially said that I didn't know who it was," id. at 473:23-24, which counsel focused on in closing:
[T]hey've testified that they knew it was him from the beginning. They immediately recognized him. That's what they testified to yesterday, but the records don't match that . . . . You saw Investigator or Deputy Welch whose worked for the Sheriff's Office for 15 years, he's written any number of reports and has done it well, say that she told me it was a male with a ball cap on. Didn't give me a name. If he'd give - if she'd given me a name it would have been in that report. That's what he testified to. He testified that Mr. Holt told him that it was an unknown suspect as well, that whenever he arrived on the scene.Id. at 308:13-25.
Petitioner also argues trial counsel was deficient for not impeaching the Holts via the 911 tape. However, as the PCR court stated, it was Phil Holt, not the victim, that called 911. [ECF No. 16-2 at 56]. Although the record is clear the perpetrator was not identified in the 911 call, this lack of identity given by Phil Holt, who was not present for the robbery, fails to serve as an impeachment of the victim, who testified repeatedly that Petitioner was the perpetrator. As summarized by the PCR court: "Counsel explained that although Applicant was not identified by the victim during the 911 call, he didn't feel this was especially helpful since it was the victim's husband who made the call. Further, Counsel testified that he felt that introducing the 911 tape posed more risks than benefits, and he felt he could introduce the helpful information from the tape through other evidence." Id. at 54.
In light of the state court record, the PCR court's findings of law and fact concerning the impeachment of the victim's identification were reasonable. Petitioner has failed to show his trial counsel was ineffective in his efforts to impeach the Holts, and, accordingly, the undersigned recommends Ground Five be dismissed.
d. Ground Six
Petitioner asserts counsel was ineffective for failing to put forth an alibi defense and for failing to enter into evidence the phone records.
First, the record shows that counsel did put forth a partial alibi defense. Counsel elicited testimony that Petitioner was at Byrd's home at 7:25 a.m. making a phone call to Rios, and both Byrd and Rios testified consistently with this alibi. More specifically, Byrd confirmed that she gave permission for Petitioner to use her landline phone from time to time during 2010, but could not recall the specific date in question. Rios confirmed she spoke with her husband by phone on the morning of August 14, 2010. She testified that the phone call came from the number associated with Byrd's phone. Additionally, in order to provide confident testimony as to the time of the call, counsel used the phone records to refresh Rios's recollection while in the presence of the jury.
Counsel argued alibi in his closing argument to the jury, specifically arguing as follows:
We presented Ms. Byrd who testified that she had a landline phone, what her phone number was. It's [xxx-xxxx]. And Mrs. Rios testified that she got this phone call around 7:22. I don't believe that she testified to the duration of that call. But she did speak with her husband, she testified to, and she, she received that phone call from that number, [xxx-xxxx], that that happened at 7:22 . . . .
Mr. Jones testified that it takes about 16 minutes from Florida Avenue to get over to Hillbrook, and that that drive was - it was in a car and it was the fastest way he could figure out, and the State had the opportunity to call a witness to reply to that and they didn't. So, that's - you just have to go with that. That's the only
evidence in the record as to the distance between the one, the two points . . . .[ECF No. 16-1 at 314:11-316:11].
And if this happened about 7:30, then even if he caught a ride, he couldn't get over there because 16 minutes, plus 22, is 7:38. So, if he called her, immediately hung up, gotten into the car, driven over there, all of that without anytime in-between, he certainly couldn't have done it now.
The trial court gave Petitioner the full benefit of what the phone records could demonstrate, that he made a phone call to Rios at 7:25 a.m. Id. at 291:13-21. The trial court denied providing an alibi charge to the jury because the time frame in question, even with the suggested time needed to drive to the victim's home, would not have covered the entire period that the victim testified as to the robbery occurring.
Regarding the phone records, there is nothing in the phone records that would have provided a "full" alibi defense for Petitioner. As testified by counsel at the PCR hearing, he chose not to have a witness regarding the phone records available to authenticate the phone records because he had a live witness who would testify as to who was making the call and to what was said during the call, and the phone records could not establish that fact. Id. at 479:2-8. Counsel explained that while Rios could confirm that it was Petitioner making the phone call, she could not provide a complete alibi for Petitioner for the entire time the crime could have occurred, and entry of the phone records would not have changed that limitation in the case. Id. at 474:9-19.
Petitioner argues that under the applicable rules, trial counsel could have authenticated the phone records at issue. [See ECF No. 37 at 13-15]. However, this issue is not in dispute. Although authentication of the phone records may have lent credence to the fact that Petitioner called Rios on the morning in question at 7:22 a.m., as discussed above, authentication would have had no impact on the trial court's treatment of Petitioner's asserted alibi defense.
The findings of the PCR court reflect the state court record. The PCR court concluded that counsel did put forth a defense of partial alibi and attempted to have the court instruct the jury as to a full alibi defense. His request was denied by the court, and he moved for a mistrial on the basis of the denied charge. [ECF No. 16-2 at 58].
In light of those findings, the PCR court denied relief under Strickland, finding that Petitioner had failed to establish deficient performance or prejudice. Id. at 58. The PCR court's findings of fact and law were reasonable under Strickland. Based on the foregoing, Petitioner is not entitled to federal habeas relief on this claim, and the undersigned recommends Ground Six be dismissed. III. Conclusion and Recommendation
Because the undersigned has not found Petitioner's constitutional rights to have been violated, the undersigned declines Petitioner's invitation to entertain a "cumulative error" claim as discussed in Fisher v. Angelone, 163 F.3d 835, 852 (4th Cir.1998). [ECF No. 37 at 47-49].
For the foregoing reasons, the undersigned vacates the order denying Petitioner's motion to hold his case in abeyance [ECF No. 20] and recommends the district court deny the same. The undersigned further recommends that Respondent's motion for summary judgement be granted [ECF No. 17], Petitioner's motion for partial summary judgment be denied [ECF No. 30], and the petition be dismissed with prejudice.
IT IS SO RECOMMENDED. May 18, 2020
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
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).