Opinion
C. A. 22-cv-03348-DCC-SVH
05-03-2023
Michael Anthony Rogers, Petitioner, v. Warden George Dodkin, Respondent.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE
Michael Anthony Rogers (“Petitioner”) is an inmate at the Livesay Correctional Institution of the South Carolina Department of Corrections (“SCDC”). He filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's return and motion for summary judgment. [ECF Nos. i7, i8]. Petitioner responded to Respondent's motion on March i3, 2023 [ECF No. 2i], and Respondent replied on March 20, 2023 [ECF No. 22].
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted.
I. Factual and Procedural Background
The parties agree on the following facts. On November i2, 20i0, Petitioner, his girlfriend Tonya Lowery, the victim John Ryan (“Victim”), and another acquaintance Jackie Lance were hanging out at Petitioner's home. Victim touched Ms. Lowery in a way Petitioner did not like, and Victim and Petitioner fought. Petitioner and Ms. Lowery then went into the bathroom. When they came out, Ms. Lance left in Victim's truck. Petitioner asked Victim to leave. Ms. Lowery left the house for a short period of time, during which Petitioner and Victim fought again, this time with a knife. Victim suffered several stab wounds and died from his injuries.
In March 2011, the Spartanburg County Grand Jury indicted Petitioner for murder. [ECF No. 17-4 at 8-9]. Attorney Clay T. Allen (“trial counsel”) represented Petitioner. [See ECF No. 17-1 at 3]. Prior to trial, trial counsel moved to dismiss Petitioner's charge under South Carolina's Protection of Persons and Property Act, SC Code Ann. § 16-11-410, referred to throughout the record as the stand-your-ground statute or Castle Doctrine. [Id. at 3-120].On September 2, 2011, the Honorable J. Derham Cole, Circuit Court Judge (“trial court”), heard evidence on the motion, which he later denied by written order. [Id.].
The record before the court does not include trial counsel's motion to dismiss, only the related hearing transcript.
Petitioner's case proceeded to trial before Judge Cole on October 4, 2011. [Id. at 121-17-2 at 225]. On October 6, 2011, the jury found Petitioner guilty of the lesser-included offense of voluntary manslaughter and Petitioner was sentenced to 21 years' imprisonment. [ECF No. 17-2 at 219 (Verdict), 224-25 (Sentence)].
Petitioner filed a timely appeal to the South Carolina Court of Appeals (“Court of Appeals”), presenting one issue:
Whether the court erred in denying appellant's Motion to Dismiss pursuant to S.C. Code §16-11-450 where the evidence showed appellant had repeatedly demanded that the decedent leave appellant's mobile home and where, instead of leaving appellant's home, the decedent attacked appellant with a knife which ultimately resulted in a struggle over the knife and injuries to appellant and a fatal wound to the decedent?[ECF No. 17-5 at 4]. After briefing, the Court of Appeals affirmed Petitioner's conviction in an unpublished opinion. [ECF No. 17-7 at 1-2]; State v Rogers, Op. No. 2014-UP-332 (S.C. Ct. App. Sept. 17, 2014) (per curiam). Petitioner filed a petition for rehearing, which the Court of Appeals denied on October 23, 2014. [ECF No. 17-8 at 1-9 (petition), 10 (order)]. Petitioner then filed a petition for writ of certiorari in the South Carolina Supreme Court. [ECF No. 17-9 at 1-18]. The South Carolina Supreme Court denied certiorari on January 23, 2015, and the matter was remitted to the lower court on January 29, 2015. [ECF Nos. 17-10 (order), 17-11 (remittitur)].
The Appendix includes an incomplete copy of the opinion. The undersigned takes judicial notice of the missing contents based on a publicly available version of the opinion on the South Carolina Judicial Department website.
On September 16, 2015, Petitioner filed a timely application for postconviction relief (“PCR”), asserting trial counsel provided ineffective assistance. [ECF No. 17-2 at 227-17-3 at 5]. On February 1, 2017, the Honorable Edward W. Miller, Circuit Court Judge (“PCR Court”), conducted an evidentiary hearing, at which Petitioner was represented by attorney Susannah C. Ross (“PCR Counsel”). [ECF No. 17-3 at 6-11 (Return), 13-74 (Hearing)]. Petitioner proceeded on the grounds that trial counsel was ineffective for failing to (1) immediately appeal the court's stand-your-ground decision; (2) object to questioning by the solicitor concerning ejectment; (3) introduce the 911 tape into evidence; (4) request jury charges on defense of habitation, accident, withdrawal, and involuntary manslaughter; and (5) conduct a proper investigation. [Id. at 17-18]. The PCR Court denied Petitioner's application on April 6, 2017. [Id. at 75-86]. Petitioner filed a motion to alter or amend, which the PCR Court denied on October 6, 2017. [Id. at 87-90 (motion), ECF No. 17-4 at 6-7 (order)].
Petitioner appealed to the South Carolina Supreme Court through a petition for writ of certiorari that presented the following issues:
I. Did the PCR Court err in denying Petitioner relief where trial counsel failed to admit a 911 tape which contained evidence of Petitioner's efforts to save the decedent's life and tended to prove that the stabbing was an accident which would have further supported an involuntary manslaughter charge?
II. Did the PCR [C]ourt err in denying Petitioner relief where trial counsel failed to argue to the trial court and preserve for appellate review whether Petitioner was entitled to the lesser-included jury charge of involuntary manslaughter where evidence in the record indicated a struggle over a weapon and where the South Carolina Court of Appeals found that counsel failed to preserve the issue of
habitation, and where trial counsel failed to request jury charges for involuntary manslaughter and habitation?[ECF No. 17-12 at 3]. The matter was transferred to the Court of Appeals, which granted certiorari. [ECF Nos. 17-14 (transfer order), 17-15 (order)]. On June 30, 2021, after further briefing by the parties, the Court of Appeals affirmed the PCR Court's decision. [ECF Nos. 17-16 (Petitioner's brief), 17-17 (Respondent's brief), 17-18 (Opinion)]; Rogers v. State, Op. No. 2021-UP-247 (S.C. Ct. App. June 30, 2021) (per curiam). Petitioner appealed to the South Carolina Supreme Court, which denied certiorari on August 3, 2022. [ECF Nos. 17-19 (petition), 17-20 (return), 17-21 (order)]. The matter was remitted to the lower court on August 5, 2022. [ECF No. 17-22].
II. Discussion
A. Federal Habeas Issues
Petitioner now raises the following grounds:
Ground One: Trial counsel failed to preserve defense of habitation for appeal and failed to ask for charge to jury of defense of habitation.
Ground Two: Trial counsel failed to ask for charge of involuntary manslaughter to jury and accident.
Ground Three: Trial counsel failed to have 911 recording played at trial.[ECF No. 1 at 5, 7, 8].
In his response, Petitioner adds an allegation that trial counsel was ineffective for failing to “respond, object and appeal to trial judge's pre-trial decision on motion to dismiss under S.C. Code § 16-11-450.” [ECF No. 21 at 2]. “Petitioner cannot amend his petition by way of his response to the motion for summary judgment.” Amerson v. Stevenson, C/A No. 4:11-3266-DCN-TER, 2012 WL 1897851, at *5 (D.S.C. May 1, 2012), adopted by 2012 WL 1899623 (D.S.C. May 23, 2012). Further, Respondent argues, Petitioner fails to show he properly exhausted this issue in the state courts. [See ECF No. 22 at 2; ECF No. 17-18 (showing issues raised to and considered by the state courts in Petitioner's PCR appeal)]. Accordingly, this allegation is not properly before the court.
B. Standard for Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(e).
C. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (2000). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 410. Moreover, state court properly before the court. factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
2. Procedural Bar
Federal law establishes this court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person “is in custody in violation of the Constitution or laws or treaties of the United States[,]” and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
a. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254.
The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). The United States Supreme Court has held that “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process”-which includes “petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State.” O'Sullivan v Boerckel, 526 U.S. 838, 845 (1999). This opportunity must be given by fairly presenting to the state court “both the operative facts and the controlling legal principles” associated with each claim. Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (citing Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (internal quotation marks omitted)). That is to say, the ground must “be presented face-up and squarely.” Mallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994) (citation and internal quotation marks omitted).
The South Carolina Supreme Court has held that the presentation of claims to the state court of appeals without more is sufficient to exhaust state remedies for federal habeas corpus review. State v. McKennedy, 559 S.E.2d 850 (S.C. 2002); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454 (S.C. 1990).
b. Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the Supreme Court explains:
. . . [state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984).
However, if a federal habeas petitioner can show both (1) “‘cause' for noncompliance with the state rule[,]” and (2) “‘actual prejudice resulting from the alleged constitutional violation[,]'” the federal court may consider the claim. Smith v. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986), superseded by statute on other grounds (AEDPA).
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met and the rules of procedural bar apply. See Matthews v. Evatt, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Teague v. Lane, 489 U.S. 288, 297-98 (1989); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)).
3. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the state courts in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or that a “fundamental miscarriage of justice” has occurred. Murray, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor which hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Id. Absent a showing of “cause,” the court is not required to consider “actual prejudice.” Turner v. Jabe, 58 F.3d 924 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
D. Analysis
In each of his grounds for relief, Petitioner asserts trial counsel provided ineffective assistance. To prevail on these claims, Petitioner must show (1) trial counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability existed that but for counsel's error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). “Judicial scrutiny of counsel's performance must be highly deferential.” Id. at 689.
Petitioner's grounds for relief challenge the state court's findings that trial counsel made reasonable strategic decisions. “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690. Because of the inherent difficulties of “reconstruct[ing] the circumstances of counsel's conduct” and “evaluat[ing] the conduct from counsel's perspective at the time,” a reviewing “court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. “[T]he defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
Further, in evaluating a state court's application of Strickland, the “question is not whether counsel's actions were reasonable,” but whether “there is any reasonable argument that counsel satisfied Strickland's deferential standards.” Harrington v. Richter, 563 U.S. 86, 105 (2011). To warrant relief, the unreasonableness of the state court determination must be “beyond any possibility of fairminded disagreement.” Id. at 103.
1. Ground One
In Ground One, Petitioner asserts trial counsel was ineffective for failing to request a jury charge on defense of habitation. [ECF No. 1 at 5]. Respondent concedes this claim is properly preserved and argues Petitioner fails to show the state court's denial was unreasonable in either fact or law. [ECF No. 17 at 12, 22-24].
The common law defense of habitation “provides that defending one's home or premises means ending an unwarranted intrusion through the use of reasonably necessary means of ejection.” State v. Rye, 651 S.E.2d 321, 323 (S.C. 2007). “For the defense of habitation to apply, a defendant need only establish that a trespass has occurred and that his chosen means of ejectment were reasonable under the circumstances.” Id. “When one becomes a trespasser, the law permits the owner of the home to employ such force, even to the taking of the life of the trespasser, as may be reasonably necessary to accomplish the expulsion.” State v. Bryant, 705 S.E.2d 465, 470 (S.C. Ct. App. 2010).
Prior to trial, trial counsel sought dismissal of Petitioner's charges under South Carolina's Protection of Persons or Property Act, which grants immunity from criminal prosecution to a person who lawfully uses deadly force against someone unlawfully entering his home. [ECF No. 17-1 at 3120]; S.C. Code Ann. §§ 16-11-440, 450. The trial court denied counsel's motion, but trial counsel continued to advance related arguments throughout the trial.
Trial counsel moved for a directed verdict twice, asserting the State failed to present sufficient evidence that Petitioner was not acting in selfdefense to lawfully eject a trespasser, or in compliance with the Castle Doctrine. [ECF No. 17-2 at 82-83, 159-160]. Regarding ejectment, the uncontroverted testimony from the two people present shortly before Victim was stabbed reflected Petitioner asked Victim to leave the house. [See ECF Nos. 17-1 at 15, 27-28, 41, 229-30, 252-53, 17-2 at 113-14]. Trial counsel argued Victim became a trespasser once he refused to leave. [ECF No. 17-2 at 160-61].
However, on cross-examination, Petitioner testified he did not try to eject Victim. [Id. at 151-52]. The solicitor asked, “it was your home but you weren't trying to eject John at this time, were ya.” [Id.]. Petitioner responded,
I was tryin' to eje-I didn't try to eject John, I told him to leave before he attacked me. I did not try to eject him. If I wanted-if I'da tried to eject him, I woulda accomplished just that and got him outta my home.[Id. at 152]. The trial court denied counsel's motions for directed verdict, finding sufficient evidence to submit the question to the jury based on Petitioner's conflicting testimony that he asked Victim to leave, but did not try to eject him. [Id. at 161-62].
On direct appeal, Petitioner asserted the trial court erred in denying his motion to dismiss under the defense of habitation and the Protection of Persons and Property Act. [ECF No. 17-5 at 11]. The Court of Appeals found Petitioner failed to “preserve the defense of habitation argument for appellate review because he never argued he was immune from prosecution pursuant to defense of habitation in either his pretrial motion to dismiss or at any time during his trial.” State v. Rogers, Op. No. 2014-UP-332, at 2 (S.C. Ct. App. Sept. 17, 2014). The court addressed the substance of Petitioner's argument regarding the Protection of Persons and Property Act. Id.
At the PCR hearing, Petitioner appears to have use “stand your ground,” the “Castle Doctrine,” and “defense of habitation” interchangeably. He expressed confusion concerning the Court of Appeals' decision because trial counsel did raise the Castle Doctrine at trial. [ECF No. 17-3 at 36 (citing ECF No. 17-2 at 159-60)]. Regarding his own testimony, Petitioner explained he did not understand the solicitor's question and thought he was asking about moving Victim's body when he was no longer responsive. [Id. at 23]. However, he was adamant trial counsel should have requested a jury charge on the defense of habitation “because the defense of habitation is analogous to self-defense . . . and should be charged when defendant presents evidence with defending himself on an imminent attack on his own premises.” [Id. at 32].
Trial counsel testified Petitioner's primary defenses were self-defense and the “statutory Castle Doctrine.” [Id. at 48]. He stated he had considered the defense of habitation, but did not think it applied to Petitioner's case because Petitioner was defending himself, not his home. [Id. at 63-64].
The PCR Court found trial counsel's testimony credible and Petitioner's neither credible nor legally relevant. [Id. at 77]. After citing Strickland and its state law equivalents, the court found trial counsel's explanation evidenced a valid strategic reason for not requesting a jury charge on habitation and that Petitioner had thus failed to show either deficiency or prejudice under Strickland. [ECF No. 17-3 at 80, 83]. In affirming the PCR Court's decision, the Court of Appeals found
Petitioner did not produce evidence that would have entitled him to a jury charge of the defense of habitation. Although the
evidence shows Petitioner asked Victim to leave his home, Petitioner admitted at trial that he was not attempting to eject Victim from his home during the fight between the pair.[ECF No. 17-18 at 3 (citation omitted)].
In this action, Petitioner continues to assert trial counsel should have asked for a defense of habitation charge because “self-defense and defense of habitation are analogous” and the trial testimony proved Victim became a trespasser after Petitioner asked him to leave. [ECF No. 1 at 5]. He also argues (1) trial counsel's PCR testimony showed a misunderstanding of the law of habitation and a valid trial strategy cannot be based on a misunderstanding of the law and (2) “[t]he evidence elicited at trial would have been sufficient to receive a habitation jury instruction had counsel requested it.” [ECF No. 21 at 5-6].
In support of his first argument, Petitioner cites trial counsel's discussion of State v. Bryant, 705 S.E.2d 465 (S.C. Ct. App. 2010), at the PCR evidentiary hearing. [ECF No. 21 at 6]. Trial counsel agreed Bryant stood for the premise that once someone has been asked to leave, defense of person or defense of property may apply, there was testimony at trial showing Petitioner asked Victim to leave, and a person has the right to use lethal force to accomplish the expulsion of a trespasser. [ECF No. 17-3 at 64-65]. Nothing in this testimony suggests trial counsel did not understand the law. Further, while trial counsel did not cite Bryant during trial, his argument for directed verdict directly tracked the case's analysis. Trial counsel argued Victim's refusal to leave after being asked transformed him from an invited guest to a trespasser and Petitioner was acting “in the ejectment of a trespasser,” which he distinguished from self-defense. [ECF No. 17-2 at 83, 159-60]. Thus, the record dispels Petitioner's assertion that trial counsel did not understand the law underlying the defense of habitation and tends to support the PCR Court's finding that trial counsel researched and considered the defense, but made a strategic decision not to request a jury charge on that basis.
Petitioner's second argument-that evidence at trial entitled him to a charge on defense of habitation-directly contradicts the Court of Appeals' factual determination. A state court's factual determinations are presumed correct, and Petitioner must rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(2). The Court of Appeals acknowledged Petitioner asked Victim to leave his home, but also recognized Petitioner's testimony that he did not attempt to eject Victim during the fight that resulted in Victim's death. [ECF No. 17-18 at 3]. This reasoning comports with the record. Accordingly, Petitioner fails to show the state court's determination was “sufficiently against the weight of the evidence” and “objectively unreasonable.” See Winston v. Kelly, 592 F.3d 535, 554 (4th Cir. 2010).
For these reasons, the undersigned recommends granting Respondent's motion for summary judgment on Ground One.
2. Ground Two
In Ground Two, Petitioner asserts trial counsel was ineffective for failing to request jury charges on involuntary manslaughter and accident. [ECF No. 1 at 7]. Respondent contends Petitioner's PCR appeal did not include an ineffective assistance of counsel claim for failure to request a charge on accident and that portion of Ground Two is thus procedurally barred. [ECF No. 17 at 13]. Petitioner does not respond to Respondent's procedural-bar argument. [See generally ECF No. 21]. The undersigned agrees with Respondent and only addresses the merits of Petitioner's claim concerning trial counsel's failure to request a jury charge on involuntary manslaughter. [See ECF No. 17-12 at 3].
South Carolina law defines involuntary manslaughter as “the killing of another without malice and unintentionally while engaged in either: (1) an unlawful act not amounting to a felony and not naturally tending to cause death or great bodily harm; or (2) a lawful act with reckless disregard for the safety of others.” State v. Reese, 633 S.E.2d 898, 900 (S.C. 2006), overruled on other grounds by State v. Belcher, 685 S.E.2d 802 (S.C. 2009).
At the PCR evidentiary hearing, Petitioner testified trial counsel “should have asked for involuntary manslaughter because there was evidence during the trial of a struggle [over] a weapon.” [ECF No. 17-3 at 32]. Trial counsel testified he felt involuntary manslaughter did not apply because there was not evidence Petitioner acted recklessly or with extreme negligence. [Id. at 58]. He stated he did not request a charge on involuntary manslaughter for that reason. [Id. at 62].
The PCR Court found trial counsel's explanation constituted a valid strategic reason for not requesting the charge and Petitioner thus failed to show ineffective assistance under Strickland. [ECF No. 17-3 at 83]. The Court of Appeals found evidence supported the PCR Court's dismissal of this claim because “Petitioner did not produce evidence from which it could be inferred that he committed involuntary manslaughter.” [ECF No. 17-18 at 2-3]. In support, the court cited two cases holding a jury charge on involuntary manslaughter is only warranted when there is “some evidence that the killing was unintentional.” [Id. (citing Sullivan v. State, 754 S.E.2d 885, 887 (S.C. Ct. App. 2014); State v. Sams, 764 S.E.2d 511, 515 (S.C. 2014))].
Petitioner continues to assert he would have been entitled to a jury charge on involuntary manslaughter had trial counsel requested one because there was evidence of a struggle over a weapon and Petitioner's actions were unintentional and without malice. [ECF No. 21 at 7-11]. Petitioner's disagreement with the state court's decision cannot support habeas relief. See Tice v. Johnson, 647 F.3d 87, 108 (4th Cir. 2011) (quoting Goodman v. Bertrand, 467 F.3d 1022, 1028 (7th Cir. 2006)) (“Mindful of the deference owed under AEDPA, we will not discern an unreasonable application of federal law unless ‘the state court's decision lies well outside the boundaries of permissibly differences of opinion.'”).
Further, the bulk of Petitioner's argument questions the state court's interpretation and application of state law. [See ECF No. 21 at 7-11]. “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, 6768 (1991). Rather, “[i]n conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, law, or treaties of the United States.” Id. at 68.
In addition, Petitioner's argument misses the mark. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight,” and a reviewing court must thus view the challenged conduct from the attorney's perspective at the time. Strickland, 466 U.S. at 689. Here, trial counsel testified he knew Petitioner wanted involuntary manslaughter considered and he explained to Petitioner after the close of testimony that there was no evidence Petitioner acted with recklessness or extreme negligence, trial counsel did not think a charge on involuntary manslaughter was appropriate in this case, and the Trial Court was not going to give that charge. [ECF No. 17-3 at 58]. Trial counsel agreed Petitioner did not intend to kill Victim and that he was defending himself. [Id. at 59-60]. However, when it came to jury charges, counsel engaged in “a pretty extensive jury charge conference” and chose to focus on self-defense and the Castle Doctrine. [Id. at 69]. Based on this testimony, which the PCR Court found credible, the state court could reasonably conclude Trial counsel made a reasonable strategic decision after adequate investigation and his conduct thus fell “within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Petitioner's disagreement with that decision does not convert it to constitutionally-deficient performance.
Petitioner has not shown the state court misapplied clearly-established Supreme Court precedent or based its decision on a clearly-unreasonable interpretation of the facts. Accordingly, the undersigned recommends granting Respondent's motion for summary judgment on Ground Two.
3. Ground Three
In Ground Three, Petitioner asserts trial counsel was ineffective for failing to play for the jury a 911 recording of Ms. Lowery calling for help while Petitioner administered aid to Victim. [ECF No. 1 at 8]. Respondent contends the state court reasonably concluded trial counsel's decision to not play the tape was well-reasoned and strategic and Petitioner failed to demonstrate prejudice because other evidence showed he tried to care for Victim. [ECF No. 17 at 26-28].
At the evidentiary hearing, PCR Counsel played the 911 recording for the court. [ECF No. 17-3 at 19-21]. Petitioner testified he was screaming in the background because he was trying to save Victim's life. [Id. at 21]. He stated he put a towel over Victim's wound and gave him mouth-to-mouth resuscitation while waiting for the paramedics to come inside. [Id. at 21-22].
Trial counsel testified he had the 911 recording prior to trial and had reviewed it. [Id. at 66]. He stated he did not introduce the tape at trial because it was helpful in some ways, but not helpful in others. [Id. at 68]. Trial counsel testified the tape “was helpful in the sense that you do hear the concern and the panic in [Petitioner's] voice.” [Id.]. He found the tape not helpful because Ms. Lowery, who did most of the talking, “made it sound like [Petitioner] got mad because [Victim] made a pass at her and they fought as opposed to . . . [Petitioner] told him to leave and he wouldn't leave.” [Id.]. Trial counsel was “leery” of making it appear Petitioner “just got mad and fought . . . and killed” Victim. [Id.]. He also felt he could “do as good with” Petitioner's and Ms. Lowery's testimony. [Id. at 69]. He explicitly agreed “[i]t was a strategic decision on [his] part to leave” out the 911 tape. [Id.].
The PCR Court found “Counsel's decision to leave the 911 tape out of evidence to be part of a trial strategy that falls within the scope of reasonable criminal representation,” and that Petitioner failed to show prejudice. [ECF No. 17-3 at 82]. The Court of Appeals found evidence supported the PCR Court's finding, particularly trial counsel's testimony “that he did not introduce the recording because he believed statements from Petitioner's girlfriend in the recording made it sound as if Petitioner fought and killed Victim because Victim made a romantic pass at Petitioner's girlfriend.” [ECF No. 17-18 at 2].
Petitioner admits trial counsel “explicitly agreed that his decision not to play the 911 tape was a strategic choice” and focuses his argument on the state court's prejudice finding. [See ECF No. 21 at 12]. Petitioner argues the 911 recording showed he was trying to keep Victim “from bleeding to death right after the stabbing” and would have given the jurors a different perspective on what transpired, thus significantly strengthening his case and undercutting the solicitor's closing argument that Petitioner left Victim to die while he washed his hands and hid the knife. [ECF No. 21 at 12-14].
To succeed on an ineffective-assistance-of-counsel claim, Petitioner must show both deficient performance and prejudice. See Strickland, 466 U.S. at 687 (“Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.”). Having effectively admitted trial counsel's decision to omit the 911 tape was strategic, Petitioner fails to show deficient representation. See also Wilson v. Greene, 155 F.3d 396, 404 (4th Cir. 1998) (“Decisions about what types of evidence to introduce are ones of trial strategy, and attorneys have great latitude on where they can focus the jury's attention and what sort of . . . evidence they can choose not to introduce.”)
In addition, the state court's finding that Petitioner failed to show prejudice is supported by both law and fact. Trial counsel agreed the 911 tape illustrated Petitioner's concern and panic, but also found it weakened their argument that Petitioner was defending himself from a trespasser rather than beating Victim for touching his girlfriend. Generally, an attorney's omission of evidence that was as likely to harm the petitioner as to help him does not result in prejudice. See Moody v. Polk, 408 F.3d 141, 151-52, 154 (4th Cir. 2005) (finding no prejudice where additional evidence offered by the petitioner was “double-edged”); Truesdale v. Moore, 142 F.3d 749, 755 (4th Cir. 1998) (same). Trial counsel also correctly noted the jury heard evidence of Petitioner's concern and reaction to the stabbing through his own testimony and testimony from Ms. Lowery. [See, e.g., ECF Nos. 17-1 at 25758 (Ms. Lowery testifying Petitioner put a towel over Victim's wound and did CPR while she was on the phone with 911), 17-2 at 120-23 (Petitioner's testimony that he was holding towels on Victim's wounds and performing CPR while Ms. Lowery was talking to 911 and “really tried to save” Victim's life)]. Petitioner argues playing the tape would have “significantly strengthen[ed]” his case but fails to show how the introduction of evidence already before the jury would have changed the outcome of his case. [ECF No. 21 at 13].
For these reasons, Petitioner fails to show the state court decision unreasonably applied Strickland or was based on an unreasonable interpretation of the facts, and the undersigned recommends granting Respondent's motion for summary judgment as to Ground Three.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends Respondent's motion for summary judgment be granted and the petition be dismissed with prejudice.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).