Sanders v. Warden of Allendale Corr. Inst.

Full title: Tunzy A. Sanders, #255493, Petitioner, v. Warden of Allendale Correctional…

Court: DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION

Date published: Jul 12, 2018

Civil Action No.:2:17-cv-01819-HMH-MGB (D.S.C. Jul. 12, 2018)

Opinion

Civil Action No.:2:17-cv-01819-HMH-MGB

07-12-2018

Tunzy A. Sanders, #255493, Petitioner, v. Warden of Allendale Correctional Institution, Respondent.

MARY GORDON BAKER UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

The Petitioner Tunzy A. Sanders ("Petitioner"), a state prisoner proceeding pro se, seeks habeas relief pursuant to 28 U.S.C. § 2254. This matter is before the Court on Petitioner's Motion to Amend (Dkt. No. 15) and Respondent's Motion for Summary Judgment (Dkt. No. 18; see also Dkt. No. 17.)

Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review the instant petition for relief and submit findings and recommendations to the District Court.

The Petitioner filed the instant § 2254 petition on July 6, 2017. (See Dkt. No. 1 at 16 of 16.) On or about October 13, 2017, Petitioner filed a Motion to Amend his petition. (See Dkt. No. 15.)¹ On October 17, 2017, Respondent filed a Motion for Summary Judgment. (Dkt. No. 18; see also Dkt. No. 17.) By order filed October 18, 2017, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Petitioner was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 19.) On October 19, 2017, the undersigned issued the following Text Order:

1 It is not entirely clear whether Petitioner actually filed the Motion to Amend, as the signature block contains the following notation after Petitioner's name: "w/consent." (Dkt. No. 15 at 2 of 9.)

TEXT ORDER re 15 MOTION to Amend/Correct 1 Petition for Writ of Habeas Corpus. Pursuant to the Federal Rules of Civil Procedure, Petitioner is able to amend as of right. See Fed. R. Civ. P. 15(a). However, he does not set forth any additional grounds for relief in his Motion to Amend but instead states that he needs an

additional ninety (90) days "to recover documents generated in [his] case that will help [him] identify and preserve the issues for [his] habeas corpus." (Dkt. No. 15 at 1 of 9.) Shortly after Petitioner filed his Motion to Amend (Dkt. No. 15), Respondent filed a Motion for Summary Judgment (Dkt. No. 18; see also Dkt. No. 17), along with the record of this case, consisting of approximately 1800 pages. Given that Petitioner now has access to the state court record, it is ORDERED that Petitioner supplement his Motion to Amend (Dkt. No. 15) within thirty (30) days of the date of this Order. As to any grounds Petitioner seeks to add to his petition, he is directed to Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts. AND IT IS SO ORDERED.

(Dkt. No. 23.)

On or about November 1, 2017, Petitioner filed documents that were docketed as a Motion for Extension of Time. (Dkt. No. 26.)² On November 9, 2017, Petitioner's motion was granted, such that his deadline to supplement his Motion to Amend (Dkt. No. 15) as well as his deadline to respond to the Motion for Summary Judgment (Dkt. No. 18; see also Dkt. No. 17) were extended to December 20, 2017. (Dkt. No. 27.) On or about November 13, 2017, Petitioner--this time apparently Petitioner himself--filed a Motion for Extension of Time. (Dkt. No. 30.) Petitioner's motion was granted, such that his deadline to supplement his Motion to Amend (Dkt. No. 15) as well as his deadline to respond to the Motion for Summary Judgment (Dkt. No. 18; see also Dkt. No. 17) were extended to January 11, 2018. (Dkt. No. 31.)

2 This document does not appear to have been filed by Petitioner himself, but instead appears to have been signed "for Tunzy Sanders." (See Dkt. No. 26 at 2 of 6.)

On or about November 21, 2017, Petitioner--again apparently this time himself--filed a Motion to Strike the Respondent's Motion for Summary Judgment. (Dkt. No. 33.) In an order dated November 29, 2017, the Motion to Strike was denied. (Dkt. No. 34.) Petitioner was reminded that his Response in Opposition to the Motion for Summary Judgment as well as his supplement to the Motion to Amend were due January 11, 2018. (Dkt. No. 34.)

On or about December 19, 2017, Petitioner filed a Motion "to Have His Attachments Numbered." (Dkt. No. 36.) On December 27, 2017, the undersigned issued the following order:

TEXT ORDER denying 36 Motion "to Have His Attachments Numbered." In his Motion "to Have His Attachments Numbered," Petitioner states that he "is sending

this motion to have his attachments numbered[] for future use when filing his motion of return for summary judgment due January 11, 2018." (Dkt. No. 36.) Petitioner attached 116 pages to his motion. Petitioner's motion is denied. To the extent Petitioner needs to refer to documents in responding to the Motion for Summary Judgment, Petitioner may number (or otherwise identify) such documents himself. For example, Petitioner may label his attachments as Attachment A, Attachment B, Attachment C, etc. AND IT IS SO ORDERED.

(Dkt. No. 39.)

On or about January 8, 2018, Petitioner--again apparently himself--filed a Motion to Appoint Counsel. (Dkt. No. 41.) On or about January 10, 2018, Petitioner--again apparently himself--filed a Motion "to Stay in Court Until Production of Documents is Completed." (Dkt. No. 44.) On or about January 12, 2018, Petitioner filed an "Emergency Motion for Extension of Time to file Response in Opposition to Respondent's Motion for Summary Judgment and Amended Petition for Habeas Corpus Relief." (Dkt. No. 42.)³

3 This document does not appear to have been filed by Petitioner himself. (Dkt. No. 42.)

On February 23, 2018, the undersigned issued an order denying Petitioner's Motion to Appoint Counsel, denying Petitioner's Emergency Motion for Extension of Time, and denying Petitioner's Motion "to Stay in Court Until Production of Documents is Completed." (Dkt. No. 48.)⁴ As Petitioner is proceeding pro se and still had not responded to the Motion for Summary Judgment, the Court filed an Order on February 23, 2018, giving the Petitioner through March 15, 2018, to file his response to the Motion for Summary Judgment. (Dkt. No. 49.) The Petitioner was specifically advised that if he failed to respond, this action would be dismissed with prejudice for failure to prosecute.

4 That Order stated, inter alia,

The record contains a document entitled "Durable Power of Attorney," (see Dkt. No. 26-1), though that document appears to be unsigned. There appears to be a signature of a notary public on the last page, but the page where Petitioner presumably would have signed appears blank. (See Dkt. No. 26-1 at 4-5 of 5.) In any event, even if this document were signed, it would not allow Linda Sanders or Brenda Sanders to file documents on Petitioner's behalf. See, e.g., S.E.C. v. White, Civ. A. No. 8:11-944-HMH-KFM, 2011 WL 1544202, at *3-4 (D.S.C. Apr. 22, 2011) (rejecting argument that durable power of attorney gave the movant's wife "authority to act on the movant's behalf," stating, "Movant's wife, who is not an attorney, cannot represent him in federal court." (citations omitted)); see also Williams v. United States, 477 F. App'x 9, 11 (3d Cir. 2012) ("Faison Williams's power of attorney for her father may confer certain decision-making authority under state law, but it does not permit her to represent him pro se in federal court.").

(Dkt. No. 48 at 3 n.1.)

Petitioner filed a Response in Opposition to the Motion for Summary Judgment on or about March 16, 2018. (Dkt. No. 51; see also Dkt. No. 57.) The undersigned construes Petitioner's response as the supplement to his Motion to Amend. As discussed herein, the undersigned recommends granting Petitioner's Motion to Amend (Dkt. No. 15) and granting Respondent's Motion for Summary Judgment (Dkt. No. 18).

PROCEDURAL HISTORY

The Petitioner is currently confined within the South Carolina Department of Corrections ("SCDC") at Allendale Correctional Institution. In July of 1998, the Barnwell County Grand Jury indicted Petitioner on the charge of murder; in January of 1999, the Barnwell County Grand Jury indicted Petitioner on charges of attempted armed robbery and criminal conspiracy. (R. at 809-14.)⁵ He was convicted after a jury trial, but his convictions were reversed on appeal on the ground that his Sixth Amendment right to counsel was violated when his sister, an attorney from Michigan, was removed as counsel prior to trial. See State v. Sanders, 356 S.C. 214, 588 S.E.2d 142 (Ct. App. 2003). After his convictions were reversed, Petitioner was represented by Daniel W. Williams, Esquire, and Brenda K. Sanders, Esquire. (See R. at 1.)⁶ Petitioner proceeded to a bench trial before the Honorable James R. Barber, III on February 5-8 of 2001. (R. at 1-465.) On February 8, 2001, Petitioner was found guilty as charged. (R. at 427-29.) Judge Barber sentenced Petitioner to thirty-five years on the conviction for murder, twenty-five years on the conviction for armed robbery, and five years on the conviction for criminal conspiracy; all of the sentences were set to run concurrently. (R. at 431.)

5 At Petitioner's first trial, he was tried along with his co-defendants, Michael P. Buckman and Maurice Benning; all three were charged with murder, attempted armed robbery, and criminal conspiracy. See State v. Buckmon, 347 S.C. 316, 319 nn. 1, 5, 555 S.E.2d 402, 403 nn.1, 5 (2001). The jury convicted Buckmon on all charges, though those convictions were ultimately overturned. See generally Buckmon, 347 S.C. 316, 555 S.E.2d 402. The jury found Benning guilty of criminal conspiracy only; he was acquitted on the other charges. Id. at 321 n.5, 555 S.E.2d at 404 n.5.

6 Ms. Sanders was a member of the Michigan bar; she is Petitioner's sister. (R. at 7-12.) During the direct appeal after Petitioner's first trial, the Supreme Court of South Carolina reversed Petitioner's convictions, concluding that Petitioner's Sixth Amendment right to counsel was violated when Ms. Sanders was removed prior to trial. See State v. Sanders, 356 S.C. 214, 588 S.E.2d 142 (Ct. App. 2003).

Petitioner appealed and was represented by Joseph L. Savitz, III, Esquire, of the South Carolina Office of Appellate Defense. (See Dkt. No. 17-9.) In his Final Brief of Appellant filed on December 10, 2002, Petitioner raised the following issue:

The judge erred by considering the prior testimony of jailhouse informer Vigier, since the defense was unable to confront and cross-examine Vigier about a subsequent revelation from the solicitor that there had been a "tacit understanding" he would receive "some benefit by virtue of his cooperation in this case."

(Dkt. No. 17-9 at 4 of 11.)

In a published opinion filed on October 20, 2003, the South Carolina Court of Appeals affirmed the judgment of the lower court. (See Dkt. No. 17-11.)⁷ The South Carolina Court of Appeals denied the Petition for Rehearing, (Dkt. No. 17-13), and on May 20, 2004, Petitioner filed a Petition for Writ of Certiorari, (Dkt. No. 17-14).⁸ On May 18, 2005, the Supreme Court of South Carolina denied the Petition for Writ of Certiorari. (Dkt. No. 17-16.) The matter was remitted to the lower court on May 19, 2005. (Dkt. No. 17-17.)

7 See State v. Sanders, 356 S.C. 214, 588 S.E.2d 142 (Ct. App. 2003).

8 Therein, the issue presented was as follows: "The Court of Appeals erred by holding that the introduction of hearsay evidence--the prior testimony of a jailhouse informer who had disappeared--did not violate Sanders' right of confrontation." (Dkt. No. 17-14 at 3 of 11.)

On May 11, 2006, Petitioner filed an application for post-conviction relief ("PCR"). (R. at 480-509.) In his application, he raised the following grounds for review:

(1) Did the trial court err when it allowed the admission of Aurelien Vigier's prior testimony when it violated applicant's Confrontation Clause rights because he was not afforded an opportunity to cross-examine the witness regarding the "subsequent revelations" pertaining to the State's alleged "deal" with the witness?

(2) Did the trial judge err in ruling appellant's cellmates were not government agents at the time applicant allegedly made incriminating statements to them? Did the trial judge err in admitting the testimony of David Staley and Aurelien Vigier who were jailhouse informants who had initiated contact with the applicant and who were acting as government agents at the time the alleged statements were made by the applicant?

(3) Did the trial court err when it denied the Appellant's Motion to Quash Maurice Benning's testimony?

(4) Did the Appellant's appeal counsel provide ineffective assistance of counsel by failing to address all of the issues in his Appeal to the Court of Appeals and the Supreme Court despite the fact that the Appellant specifically requested that he do so and Appellant's counsel failed to address said issues despite the fact that he addressed multi[ple] issues in the co-defendants case and prevailed on those issues in the Court of Appeals?

(5) Did the trial court commit error by convicting the appellant despite the insufficiency of the evidence?

(6) Did the Appellant's appointed appellate counsel provide ineffective assistance by failing to address the issue of the trial court's denial of the directed verdict in the Appellant's case?

(7) Did the trial court err in its admission of the ballistics evidence where it was unclear as to the type of bullet and the fact that the ballistics expert clearly indicated that he could not [be] sure that it came from that gun?

(8) Did the trial court err when it admitted the testimony of jailhouse informants who were not trustworthy, had a history of testifying against other defendants and received great consideration for their testimony against the appellant in this case as well as for their testimony against the co-defendants in their own cases? Should the appellant's conviction for murder, armed robbery and criminal conspiracy be allowed to stand on such unreliable evidence without corroboration from the physical evidence in the case?

(9) Did the delay in revealing that Vigier and Staley had received deals from the State constitute a Brady violation as such information was only revealed at the second trial of the Applicant-Sanders?

(R. at 488-508.)

On June 6, 2008, Petitioner amended his PCR application, wherein he added the following grounds for review:

(10) Whether Applicant's indictment for murder (98-GS-06-180) was defective because it did not state the place and time of assault and the place and time of death of Minh Chapman pursuant to S.C. Code Ann. § 17-19-30 (1985) thereby meaning that the Circuit Court lacked subject matter jurisdiction over the applicant at the time of Applicant's trial?

(11) Whether the indictments for Attempted Armed Robbery 99-GS-06-079 and Criminal Conspiracy - 99-GS-06-078 were defective thereby causing the Circuit Court to lack subject matter jurisdiction over the Applicant at the time of Applicant's trial.

(Dkt. No. 17-18.)

On August 8, 2007, an evidentiary hearing was held before the Honorable J. Michael Baxley. (Dkt. No. 17-20.) Petitioner was present and represented by Jane Matthews Moody, Esquire. (See Dkt. No. 17-20 at 1 of 26.) In an order filed October 4, 2007, Judge Baxley denied the application for post-conviction relief and dismissed the petition. (Dkt. No. 17-21.)

Petitioner did not--at that time--seek appellate review of Judge Baxley's dismissal of his PCR action. However, on June 16, 2009, Petitioner filed a second application for PCR. (Dkt. No. 17-22.) In his second application for PCR, he raised the following grounds for review:

(1) Was PCR Attorney, Jane A. Moody, ineffective as counsel when she failed to communicate with Tunzy A. Sanders about his PCR Petition and PCR hearing?

(2) Was PCR Attorney Jane A. Moody[] ineffective as counsel for the Applicant, Tunzy A. Sanders, when she failed to communicate with the former attorney for the Applicant, Tunzy A. Sanders, after being requested to do so on several occasions?

(3) Was PCR Attorney Jane N. Moody[] ineffective as counsel for the Applicant, Tunzy A. Sanders, when she failed to notify the Applicant of the scheduling of the PCR hearing in the Barnwell County Circuit Court?

(4) Was PCR Attorney, Jane N. Moody, ineffective as counsel for the Applicant, Tunzy A. Sanders, when she failed to notify trial counsel, Brenda K. Sanders, of the scheduling of the PCR hearing and when she failed to call Brenda K. Sanders to testify at the PCR hearing for the Applicant, Tunzy A. Sanders?

(4)(B)⁹ Was PCR Attorney, Jane N. Moody, ineffective as counsel for the Applicant, Tunzy A. Sanders, when she failed to file a timely appeal on behalf of the Applicant, Tunzy A. Sanders[,] within 30 days of the Barnwell County Circuit Court's decision which was rendered on October 4, 2007?

(5) Was PCR Attorney, Jane N. Moody, ineffective as counsel for the Applicant, Tunzy A. Sanders, when she failed to notify the Applicant of the issuance of the

Order Denying his PCR Application until nine months after the Order had been entered by the Barnwell County Circuit Judge?

(6) Was PCR Attorney, Jane A. Moody, ineffective as counsel for the Applicant, Tunzy A. Sanders, when she failed to adequately and individually address all of the issues outlined in the PCR Application of the Applicant, Tunzy A. Sanders, when she was specifically requested to do so on behalf of the Applicant, Tunzy A. Sanders?

(7) Was PCR Attorney, Jane N. Moody, ineffective as counsel for the Applicant, Tunzy A. Sanders, when she failed to file a post-hearing motion with the Barnwell County Common Pleas Circuit Court requesting that Judge Baxter tender a ruling on each issue brought in the Applicant's PCR Application for Relief, despite the fact that the PCR Attorney, Jane Moody, was specifically requested to do so on behalf of the Applicant, Tunzy A. Sanders?

(Dkt. No. 17-22 at 9-15 of 19.)

9 Because Ground Four appears twice, the undersigned has renumbered the latter Ground Four as Ground (4)(B).

The State filed a Motion to Dismiss, requesting that all claims (except the Petitioner's claim for a belated PCR appeal pursuant to Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991)) be dismissed. (Dkt. No. 17-23.) In an order dated March 23, 2010, the Honorable W. Jeffrey Young allowed the belated appeal. (Dkt. No. 17-24.)¹⁰

10 Although Judge Young allowed the belated PCR appeal, he concluded that all other allegations were barred as they were successive and untimely. (See Dkt. No. 17-24 at 5 of 8.)

Petitioner appealed, and on March 29, 2011, through Attorney Tara Dawn Shurling, he filed a Petition to Remand to the Court of Common Pleas. (Dkt. No. 17-26.) Attorney Shurling based the motion on the fact that "there is no complete transcript of the hearing held on Petitioner's first Post-Conviction Relief case convened on August 8, 2007," and that "[a] review of the partial transcript . . . reveals that the missing parts comprised a significant portion of the proceeding." (Dkt. No. 17-26 at 2 of 35.) Petitioner requested that the matter be remanded to the Court of Common Pleas for a de novo hearing. (Dkt. No. 17-26 at 2 of 35.) The State filed a Return to Petitioner's motion, requesting that the court deny his request for remand for a hearing de novo; the State argued that the court "should remand the matter, if at all given the issues to be submitted, for reconstruction only." (Dkt. No. 17-27 at 3 of 5.)

In an order dated May 13, 2011, the Supreme Court of South Carolina remanded the matter to the circuit court "for the purpose of reconstruction of the record only." (Dkt. No. 17-28 at 1 of 2.) That order stated, inter alia,

This matter is hereby remanded to the Honorable J. Michael Baxley for a hearing to reconstruct the missing portion of the record of the August 8, 2007 hearing on petitioner's first PCR application. The hearing should be held within 45 days of the date of this order. If Judge Baxley determines reconstruction is not possible, he shall notify this Court and the parties within 15 days of the reconstruction hearing. If the record is reconstructed, the parties shall notify this Court and the matter will proceed upon petitioner's receipt of the transcript from the reconstruction hearing.

(Dkt. No. 17-28 at 2 of 2.) In an order dated October 27, 2011, Judge Baxley concluded that the circuit court "cannot fully reconstruct the missing portions of the 2007 PCR transcript." (Dkt. No. 17-29 at 11 of 11.)¹¹ Judge Baxley's order returned the matter to the South Carolina Supreme Court "for a final decision as to how this matter should proceed." (Dkt. No. 17-29 at 11 of 11.)

11 According to the Respondent, a transcript of the reconstruction hearing is not available. (See Dkt. No. 17 at 18 of n.7.)

Petitioner filed a Renewed Petition to Remand to the Court of Common Pleas. (Dkt. No. 17-30.) He requested a "de novo PCR hearing without restriction as to the allegations he may amend his Application to include or the witnesses and other supporting evidence he may submit in support of his claims." (Dkt. No. 17-30 at 5 of 7.) The State filed a Return to the renewed motion, arguing that Petitioner's request should be denied but that if the matter was remanded, "Petitioner should be limited to those issues specifically raised and ruled upon in his first PCR application." (Dkt. No. 17-31 at 5 of 7.)

In an order dated March 23, 2012, the Supreme Court of South Carolina stated,

The petition to remand for a de novo hearing on petitioner's first PCR application is granted. The State's request to limit what can be litigated at the hearing is denied. We hereby vacate the order of September 18, 2007 denying and dismissing petitioner's first PCR application and the order dated March 23, 2010 finding petitioner is entitled to a belated review of the September 18, 2007 order, and we remand this matter to Judge Baxley for a de novo hearing on petitioner's first PCR application.

(Dkt. No. 17-32 at 1-2 of 2.) The matter was remitted to the lower court on April 12, 2012. (Dkt. No. 17-33.)

On August 22, 2013, Petitioner filed an Amended Post-Conviction Relief Application. (R. at 512-13.) Petitioner stated that he amended his PCR application previously filed on May 11, 2006 to include the following additional allegations:

1. Trial Counsel failed to adequately advise the Applicant of all the potential disadvantages of a bench trial versus a jury trial.

2. Trial Counsel's failure to thoroughly advise the Applicant of the potential benefits of a jury trial resulted in the Applicant's inability to make a knowing and voluntary waiver of his right to trial by jury.

3. Trial Counsel failed to provide the Applicant reasonable professional assistance of counsel where they failed to seek a continuance despite the fact that lead counsel, Brenda Sanders, was not properly notified that Applicant's case was scheduled for trial.

4. Trial Counsel was ineffective for failing to adequately argue the facts in support of the Applicant's motion to exclude from evidence a transcript of Aurelin Vigier's testimony from the Applicant's trial where Attorney Sanders had no previous opportunity to cross-examine this witness.

5. Trial Counsel Sanders was ineffective for failing to respond to the trial judge's assumption that she had the opportunity to have Attorney Williams pose any questions she deemed necessary to witness Vigier.

6. Trial Counsel was ineffective for allowing a transcript of witness Vigier's testimony from the Applicant's first trial to be admitted without objection.

7. Trial Counsel was ineffective for neglecting to object to a pattern of leading by the prosecution during their direct examination of State witnesses during the Applicant's trial.

8. Trial Counsel was ineffective for failing to object to hearsay testimony from Dr. Joel Sexton concerning what he was told concerning the type of ammunition used in this homicide.

9. Trial Counsel was ineffective for failing to object to the Solicitor's misstatement of the testimony of Maurice Benning during the prosecutions [sic] summary of the evidence before the Court where the prosecutor erroneously advised the Court that

Maurice Benning had testified that he heard a shot from the area around the restaurant where the record fails to support that claim.

10. Trial Counsel was ineffective for failing to object to the Applicant [sic] sentence of 25 years for armed robbery where the Applicant was in fact charged with Attempted Armed Robbery.

11. Trial Counsel was ineffective for failing to point out to the Judge that the State did not rebut the claim by the Applicant that only one officer got out of the car at the first Chinese Restaurant[,] a fact that was not disclosed in Gadson's testimony.

(R. at 512-13.) Petitioner also included the following allegations in a Second Amended Post-Conviction Relief Application:

12. Trial Counsel was ineffective for failing to request that the Trial Court publish on the record all of the law to be applied by the Court in reaching a decision in the Applicant's case.

13. Trial Counsel provided the Applicant ineffective assistance of counsel when they waived the right to make a comprehensive closing argument summarizing the evidence and arguments in favor of the defense.

(R. at 522.)

On August 20, 2013, an evidentiary hearing was held before the Honorable Doyet A. Early, III. (R. at 527-737 .) Petitioner was present and represented by Tara Dawn Shurling, Esquire. (See R. at 527.) In an order filed August 19, 2014, Judge Early denied the application for post-conviction relief and dismissed the petition. (R. at 738-77.)

Petitioner, through Attorney Tara Dawn Shurling, appealed, and he also filed a Motion to Hold Appeal in Abeyance and to Remand for a New Evidentiary Hearing Based on After-Discovered Evidence. (Dkt. No. 17-34; Dkt. No. 17-35.) The motion states that the "after-discovered evidence . . . involves the diagnosis of Petitioner's lead trial counsel, Brenda K. Sanders . . . , as having a severe psychotic disorder." (Dkt. No. 17-35 at 1 of 30.) The State opposed Petitioner's motion, (Dkt. No. 17-39), and in an order dated November 5, 2015, the Supreme Court of South Carolina denied Petitioner's motion, (Dkt. No. 17-41).

On December 21, 2015, Petitioner--through Attorney John H. Strom of the South Carolina Commission on Indigent Defense--filed a Petition for Writ of Certiorari. (Dkt. No. 17-42.) Therein, Petitioner raised the following issues:

I. The PCR court erred in finding that Petitioner knowingly and intelligently waived his constitutional right to a trial by jury where Petitioner's decision was based on the objectively unreasonable advice of his lead trial attorney and where neither co-counsel nor the trial court adequately advised Petitioner of the consequences of proceeding with a bench trial.

II. The PCR court erred in allowing Petitioner's evidentiary hearing to proceed since PCR counsel had an actual conflict of interest as she had been retained by lead counsel Brenda Sanders, Petitioner's brother, and this conflict of interest compromised PCR counsel's representation as she admittedly failed to investigate Counsel Sanders' mental illness or past disciplinary infractions.

III. The PCR court erred in finding that defense counsels provided effective assistance of counsel where neither counsel corrected the trial court's false belief that Counsel Sanders had the opportunity at the first trial to participate in the cross-examination of key State's witness Aurelien Vigier's through Counsel Williams when, in actuality, Counsel Sanders could not participate and the trial court's false belief was central to both its ruling and the Court of Appeals affirmance of Petitioner's conviction.

(Dkt. No. 17-42 at 3 of 51.)

The State filed a "Motion to Strike Petition for Writ of Certiorari, Appendix, and Supplemental Appendices for Failure to Comply with Rule 210(c), SCACR, Motion to Hold Timelines in Abeyance." (Dkt. No. 17-43.) In an order dated January 13, 2017, the Supreme Court of South Carolina denied the petition for a writ of certiorari and denied the motion to strike as moot. (Dkt. No. 17-47.) The remittitur was filed on February 2, 2017. (Dkt. No. 17-48.)

While that appeal was pending--on July 1, 2016--Petitioner filed a third application for PCR. (Dkt. No. 17-50.) The following questions and answers appear on Petitioner's third PCR application:

10. State concisely the grounds on which you base your allegation that you are being held in custody unlawfully:

(a) Applicant was deprived of his Sixth Amendment right to the effective assistance of counsel where his lead trial counsel Brenda Sanders was suffering from a serious, undiagnosed mental illness that rendered her unable to properly interpret reality and

caused her to experience paranoid delusions. Her mental illness, and irrational paranoia, animated many of her key tactical decisions, including the election of a bench trial.

(b) Applicant's lead trial counsel Brenda Sanders retained and paid PCR Counsel Shurling. This financial arrangement resulted in an active conflict of interest because Sanders' intense desire to hide her mental illness and payment of PCR Counsel's retainer conflicted with PCR Counsel Shurling's duty to investigate Sanders and to examine whether she made objectively reasonable decisions in representing Applicant.

11. State concisely and in the same order the facts which support each of the grounds set out in (10):

(a) Petitioner's lead trial counsel, Brenda K. Sanders has been diagnosed as having a serious, long-term non-specified psychotic disorder. Specifically, Sanders suffers from "psychotic delusions" manifested by "firmly fixed false beliefs of being persecuted by nearly everyone;" none of those persecutory beliefs "correspond to reality." See EXHIBIT A (Affidavit and Report of Dr. Norman S. Miller). Sanders' "paranoid delusions" directly impact her ability to interpret reality and rationally respond to it. If lead trial counsel Sanders' severe mental illness had been known at the time of Petitioner's 2013 PCR hearing, Sanders' strategic reasons for making certain trial decisions, inter alia: seeking a bench trial, her obsession with pre-trial publicity in an unrelated case, her recriminations towards other attorneys, and her accusations of not being provided with discovery materials or court dates, would have been examined in light of her mental illness and her inability to distinguish reality from her paranoid delusions. Such an examination would have revealed significant, troubling parallels between decisions she took while serving as lead defense counsel for Petitioner and analogous behavior, detailed in the Commissions' findings, later determined to have been manifestations of her mental illness.

(b) See answer A.

(Dkt. No. 17-50 at 4-5 of 26.) The State filed a Motion to Dismiss, contending the matter should be summarily dismissed because "Applicant has a pending PCR appeal in the Supreme Court, the application is successive to the Applicant's prior PCR action, was filed after the statute of limitations had expired, and fails to make a prima facie showing that he is entitled to relief." (Dkt. No. 17-51 at 13 of 14.) In an order filed November 30, 2016, Judge Early granted the Motion to Dismiss. (Dkt. No. 17-52.) Petitioner, through Attorney John H. Strom, filed a Consent Motion to Vacate the Order of Dismissal. (Dkt. No. 17-54.) It appears that motion remains pending.¹²

12 See Sanders v. State, No. 2016-CP-06-0291,available at http://publicindex.sccourts.org/barnwell/publicindex/.

Petitioner filed the instant § 2254 petition on July 6, 2017; therein, he raises the following grounds for review (verbatim):

Ground One: Lack of subject matter jurisdiction for murder indictment not having special count for weapon used. Any other charge is fruit from poisonous tree.
Supporting Facts: In my indictment for murder the State said the crime was committed with a gun, but there is no special indictment for a weapon. There's only one bullet, but conflicting information about that bullet through two (2) different offices. M.E. report said victim died from a .22 caliber. Firearms expert said bullet that came out of victim was a .25 caliber, but it was inconclusive to the gun they presented as the murder weapon.

Ground Two: Court erred in not granting directed verdict
Supporting Facts: No physical evidence to convict me of crime. No-DNA, fingerprints, shoe prints, eyewitnesses. Crime happened around 10pm, last seen at 8:45pm or 9pm. Being held o[n] false jailhouse informant testimony. Jailhouse informer testimony is not back[ed] by evidence presented by State. Now I have to defend myself against two (2) different theories.

Ground Three: Violated my Sixth Amendment under U.S. and S.C. Constitutions. 6 and 14th Amendments of U.S. Constitution guarantees individuals right to counsel throughout adversarial stage.
Supporting Facts: Being questioned by an individual that was an agent of the State and law enforcement. Before writing a statement against me around the end of 1998. He (Aurelien Vigier) was arrested with 3 other co-defendants, and he wrote voluntary statements against them. The State and law enforcement ask him to help them with his co-defendants and he did. So he was already agent of the State and law enforcement before he met and wrote statements against me.

Ground Four: Right to jury trial was violated; lawyer chose bench trial.
Supporting Facts: I thought after I got my case overturned (in July 2000) my next trial would be a bench trial. Well that's the way one of my lawyers made it look like. Told me we would take a bench trial. Didn't inform me I still had the right to a jury trial. Or if one person held out it would be a mistrial.

Ground Five: State and local law enforcement gave perjured testimony in order to get indictment for murder charge.

Supporting Facts: M.E. report said victim died from .22 caliber gun. Firearm expert said bullet was a .25 caliber. Only one bullet was fired. Only one bullet was recovered from the victim. M.E. never changed his report for the whole thirteen (13) months I was in jail. He changed his findings when he got on the stand. Just got a copy of the original report recently. Lawyers were ineffective for not using this sooner. Never appealed or was raised at any time after I was convicted. Issue couldn't have been raised before jury was sworn in cause the M.E. Dr. Sexton did change his findings until he testified.

(Dkt. No. 1 at 5-13 of 16.)

Although Petitioner never formally supplemented his habeas petition, on or about March 27, 2018, Petitioner filed a document entitled "Petitioner's Response in Opposition to Respondent's Motion for Summary Judgment and Dismissal of Habeas Corpus Petition." (Dkt. No. 57.) Therein, Petitioner asserts the following grounds for relief:¹³

13 The numbering of grounds in Petitioner's filing is not entirely consistent, so the numbering in Petitioner's filing may not exactly correlate to the numbering used in the instant Report and Recommendation.

Ground One: Trial Counsel Williams rendered legal ineffective assistance of counsel when he filed a Motion for a Speedy Trial in the wake of the negative pre-trial publicity generated by the horrific Sonic Restaurant murders, which took place just a few weeks before Petitioner's scheduled jury trial.

Ground Two: Trial Counsel failed to provide Petitioner with reasonable professional assistance of counsel where he failed to seek a continuance despite the fact that trial counsel, Brenda K. Sanders, was not properly notified that the Petitioner's case was scheduled for trial and where pre-trial publicity from another horrific restaurant murder and robbery dominated the media just prior to the Petitioner's bench trial which prejudiced the Petitioner.

Ground Three: Trial Counsel was ineffective for failing to adequately argue the facts in support of the Petitioner's motion to exclude from evidence a transcript of Aurelien Vigier's testimony from the Petitioner's trial where Attorney Sanders had no previous opportunity to cross-examine the witness, and as a result the Petitioner suffered prejudice.

Ground Four: The Solicitor and Trial Counsel Williams failed to provide the Petitioner with a copy of the taped statement of Aurelien Vigier wherein Vigier proclaimed that he was an agent working for the state when he entered the Petitioner's jail cell which was a Brady violation which prejudiced the Petitioner.

Ground Five: Trial Counsel Williams was ineffective for failing to move to quash the grand jury indictments at the time of the Petitioner's trial.

Ground Six: Did the trial court err, and or has the defendant's 5th, 6th, 14th Amendment rights of the U.S. Constitution, as well as Article IV§2 and his due process rights violated by the indictment(s) of South Carolina, as constructed, possessing a structural constitutional error and or defect, by it's language or charge contained therein.

Ground Seven: Petitioner's indictment for murder (98-GS-06-180) was defective because it did not state a place and time of assault and the place and time of the death of Minh Chapman pursuant to S.C. Code Ann. § 17-19-30 (1985) thereby meaning that the Circuit Court lacked subject matter jurisdiction over the Petitioner at the time of the Petitioner's trial.

Ground Eight: Petitioner's indictment for murder (98-GS-06-180) was defective because it did not state the caliber of weapon that was allegedly used in the assault and death of Minh Chapman pursuant to S.C. Code Ann. § 17-19-30 (1985) thereby meaning that the Circuit Court lacked subject matter jurisdiction over the Petitioner at the time of the Petitioner's trial.

Ground Nine: Petitioner's indictment for murder (98-GS-06-180) was defective because it did not state the caliber of weapon that was allegedly used in the assault and death of Minh Chapman pursuant to S.C. Code Ann. § 17-19-30 (1985) thereby meaning that the Circuit Court lacked subject matter jurisdiction over the Petitioner at the time of the Petitioner's trial.

Ground Ten: Petitioner's indictment for murder (98-GS-06-180) was defective because it failed to include a special count for carrying a concealed weapon and where the jury was required to find a verdict on the special count as required by S.C. Code Ann. § 17-19-40 (1985) thereby meaning that the Circuit Court lacked subject matter jurisdiction over the Petitioner at the time of the Petitioner's trial.

Ground Eleven: Trial counsel was ineffective for failing to move to quash the grand jury indictments at the time of the Petitioner's trial.

Ground Twelve: The trial court admitted the ballistics evidence where it was unclear as to the type of caliber bullet and the fact that the ballistics expert clearly indicated that he could not be sure that it came from the same gun admitted into evidence in the case.

Ground Thirteen: Petitioner contends his trial counsel was ineffective for failing to hire an investigator or ballistics expert because the State could not identify the murder weapon.

Ground Fourteen: Petitioner alleges ineffective assistance of counsel as his trial counsel did not advise him of all of his Rights when he waived his right to a jury trial and Petitioner Failed to make a knowing and voluntary waiver of his right to a Trial by jury.

Ground Fifteen: The state court unreasonably applied federal law when it ruled that Petitioner's cellmates were not government agents at the time Petitioner allegedly made incriminating statements to them. Accordingly, the trial court erred when it admitted the testimony of David Staley and Aurelien Vigier who were both jailhouse informants who had initiated contact with the Petitioner after being placed in Petitioner's jail cell and who were acting as government agents at the time the alleged statements were made by the Petitioner as a result, the Petitioner suffered prejudice.

Ground Sixteen: The trial court unreasonably applied federal law when it denied the Petitioner's Motion to Quash Maurice Benning's testimony.

Ground Seventeen: Petitioner's Appellate Counsel Joseph Savitz provided ineffective assistance of counsel by failing to address all of the issues requested by the Petitioner in his appeal to the S.C. Court of Appeals and S.C. Supreme Court, despite being requested to do so by the Petitioner and the refusal constituted "ineffective assistance of counsel" when Appellant Counsel, Savitz, raised the same or similar multi-issues in the appeals of the Petitioner's co-defendants and prevailed on those issues which resulted in the exoneration of Petitioner's co-defendants.

Ground Seventeen(B):¹⁴ Petitioner asserts ineffective assistance of counsel as it pertains to the appointment of Attorney Jane Moody to his case when she failed to prepare Petitioner's case for PCR Review, did not maintain proper notes and then subsequently failed to file an appeal on behalf of the Petitioner from the decision of the PCR Court dismissing Petitioner's PCR Application.

Ground Eighteen: PCR Attorney, Jane N. Moody, ineffective as counsel for the Petitioner when she failed to notify trial counsel, Brenda K. Sanders of the scheduling of the PCR hearing and when she failed to call Brenda K. Sanders to testify at the PCR hearing for the Petitioner.

Ground Nineteen: PCR Attorney, Jane Moody, ineffective as counsel for the Petitioner when she failed to communicate with the former attorneys for the Petitioner after being requested to do so on several occasions.

Ground Twenty: PCR Attorney, Jane Moody, ineffective as counsel for the Petitioner when she failed to . . . file a timely notice of appeal within 30 days of the PCR Court's decision which was rendered on October 4, 2007.

Ground Twenty-One: PCR Attorney, Jane Moody, ineffective as counsel for the Petitioner when she failed to notify trial counsel, Brenda K. Sanders, and the Petitioner of the scheduling of the PCR hearing and when she failed to call Brenda K. Sanders to testify at the PCR hearing for the Petitioner.

Ground Twenty-Two: PCR Attorney, Jane Moody, ineffective as counsel when she failed to communicate with Tunzy A. Sanders about his PCR Petition and PCR hearing.

Ground Twenty-Three: PCR Attorney, Jane N. Moody, ineffective as counsel for the Petitioner, Tunzy A. Sanders, when she failed to notify the Petitioner of the issuance of the Order denying his PCR Application until nine months after the Order had been entered by the Barnwell County Circuit Judge Baxter [sic] tender a ruling on each issue brought in the Petitioner's PCR Application for Relief despite the fact that the PCR Attorney, Jane N. Moody, was specifically requested to do so on behalf of the Petitioner, Tunzy A. Sanders.

Ground Twenty-Four: PCR Attorney, Jane N. Moody, ineffective as counsel for the Petitioner, Tunzy A. Sanders, when she failed to adequately and individually address all of the issues outlined in the PCR Application for the Petitioner, Tunzy A. Sanders, when she specifically requested to do so on behalf of the Petitioner.

Ground Twenty-Five: PCR Attorney, Jane N. Moody, ineffective as counsel for the Petitioner, Tunzy A. Sanders, when she failed to file a post-hearing motion with the Barnwell County Common Pleas Circuit Court requesting that Judge Baxter tender a ruling on each issue brought in the Petitioner's PCR Application for Relief despite the fact that the PCR Attorney, Jane N. Moody, was specifically requested to do so on behalf of the Petitioner, Tunzy A. Sanders.

Ground Twenty-Six: PCR counsel, Tara Shurling, was ineffective when she failed to advise Petitioner's sister, Brenda K. Sanders, that she would include claims of ineffective assistance of counsel and mental unfitness in the Petitioner's PCR Application against Petitioner's sister which constituted a conflict of interest, after accepting . . . $24,000 from Petitioner's sister to represent the Petitioner.

Ground Twenty-Seven: Petitioner asserts that this Honorable Court Should Review All of His Claims That Were Not Raised in State Court for The Reason That the Petitioner Has Demonstrated Cause and Actual Prejudice.

(Dkt. No. 57-1 at 2-7 of 54.)

14 Because Ground Seventeen appears twice, the undersigned has renumbered the latter Ground Seventeen as Ground Seventeen(B).

APPLICABLE LAW

Summary Judgment Standard

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "Facts are 'material' when they might affect the outcome of the case, and a 'genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "'the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).

Habeas Standard of Review

Since the 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, 322-23 (1997); Breard v. Pruett, 134 F.3d 615, 618 (4th Cir.1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication:

1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

2. resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding.

28 U.S.C. § 2254(d); 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." Williams, 529 U.S. at 410. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

DISCUSSION

As noted above, this matter is before the Court upon Petitioner's Motion to Amend (Dkt. No. 15) and Respondent's Motion for Summary Judgment (Dkt. No. 18; see also Dkt. No. 17.) Before turning to the grounds for relief in the instant § 2254 petition, the undersigned first reviews some information and testimony related to Petitioner's bench trial.

In July of 1998, the Barnwell County Grand Jury indicted Petitioner on the charge of murder, and in January of 1999, the Barnwell County Grand Jury indicted Petitioner on charges of attempted armed robbery and criminal conspiracy. (R. at 809-14.) Although Petitioner was originally convicted subsequent to a jury trial, his convictions were reversed on direct appeal. See State v. Sanders, 356 S.C. 214, 588 S.E.2d 142 (Ct. App. 2003). Thereafter, Petitioner proceeded to a bench trial before Judge Barber.

Luther Gadson, then an officer with the Barnwell Police Department, testified that on December 11, 1997, he was dispatched to the China Express restaurant; he testified that a lady sitting in the front seat of a car was slumped over and appeared to be deceased. (R. at 96-101.) He testified that he did not find out the lady had been shot until he arrived at the Barnwell County Hospital. (R. at 101-02.) Once he was informed that the victim had been shot, he went back to the scene and secured it. (R. at 102.) Gadson also testified that he had seen a pocketbook right next to the victim's leg, and that pocketbook was closed and "appeared to be undisturbed." (R. at 105.)

Michael Todd Gantt testified that on December 11, 1997, he was employed with the Second Judicial Circuit Solicitor's Office, and he was called out to the scene; he testified that Lieutenant Padgett found a spent cartridge casing on the ground approximately three feet from where the victim was found. (R. at 115-16.) Gantt testified that he photographed that casing and then collected the casing as evidence. (R. at 116.) State's Exhibit 7 is the cartridge casing that was found on the ground at the crime scene. (R. at 121.)

John Black, a SLED agent who was qualified as an expert in the field of fingerprint examination, testified that although he retrieved several identifiable fingerprints from the interior of the car, no fingerprint evidence linked anyone in the case to the car, (R. at 125-29, 138), and no recoverable fingerprints were found on the outside of the car, (R. at 138). He further testified that he examined the spent casing recovered from the scene, but he was unable to develop any fingerprints from that casing. (R. at 129-30.) He was unable to identify or eliminate anyone with respect to detail on State's Exhibits 13B and 13D, a pistol and a magazine. (R. at 131-32.)

Dr. Sexton, who was qualified as an expert in forensic pathology, testified that he conducted the autopsy in this case. (R. at 144-45.) State's Exhibit 11 was the bullet he removed from the victim's body. (R. at 150.) Dr. Sexton testified that the victim died as a result of blood loss and damage to the heart from the gunshot wound to her chest. (R. at 150.) He testified that he is not a ballistics expert, but when he examined the bullet removed from the body, he believed it was .22 caliber. (R. at 151-52.) He testified that he "found out later that the ballistics, the expert said that [the bullet] was a .25" caliber bullet. (R. at 152.) He testified that "it's only three hundredths of a difference between the 22 and the 25," and that the at-issue bullet is "an atypical-looking 25." (R. at 152.) Dr. Sexton testified that the entry wound found on the victim could have been consistent with a .22 caliber bullet or a .25 caliber bullet. (R. at 152.) He testified that the hole in the victim's body measured approximately .22 inches. (R. at 153.) On cross-examination, Dr. Sexton indicated that when he looked at the bullet, "it looked more consistent with a 22 than any other type bullets"; he said it "didn't look consistent with a 25" to him, "but it's an unusual type of 25. At least that's what I was told by the ballistics expert." (R. at 155.) On cross-examination, Dr. Sexton stated that although he had completed over 9,000 autopsies, this case was "the first time that [he'd] misdiagnosed the size of a bullet to [his] knowledge." (R. at 155.)

Shirley Collins testified that on the night in question, she had stopped at Sonic restaurant for some food, and at about 9:45 to 10:00 that night, she had to slam on brakes when she saw some figures in the highway. (R. at 156-58, 162.) She testified she saw a "tall figure, a medium size figure, and a shorter figure" in the area of Barnwell near the Days Inn, Waffle House, and Chinese restaurant. (R. at 158-59.) She testified that she did not get a look at their faces and could not identify the races or genders of the three individuals she saw that night. (R. at 159-61.) She indicated that their direction of travel was towards the China Express restaurant, but that there were also some residences in that direction. (R. at 165.)

Vello Paavel, an employee of SLED, was qualified as an expert in the field of firearms identification and ballistics. (R. at 206-09.) He testified that as part of the investigation in this case, he received a fired bullet that was from the autopsy, a .25 caliber cartridge case, a Lorson model L25 pistol, a pistol magazine, and three unfired .25 caliber cartridges. (R. at 209-10.) Mr. Paavel testified that he was unable to determine whether or not the bullet that was removed from the victim was fired by the Lorson L25 pistol. (R. at 214-16.) He stated, "I could tell that this bullet could have been fired by this gun, but it also could have been fired by another Lorson pistol or another brand of pistol that had similar type of rifling." (R. at 215.) He was asked whether the bullet removed from the victim could be confused with any other type of ammunition; Paavel stated, "You could conceivably confuse it with a 22. There are some 22's that have a similar shape. However, the 25 caliber bullet is larger in diameter. It is heavier and if you have a known or a standard to look at, you can quickly see that it is a 25." (R. at 217.) Paavel testified that the fired cartridge recovered from the scene of the crime was fired by State's Exhibit 13D (the pistol). (Dkt. No. 17-49 at 3-4 of 4.)

David Staley testified that in December of 1998, he was detained at the Barnwell County Detention Center, and he came into contact with Petitioner at that time. (R. at 236.) Staley testified that Petitioner told him that he was detained on the "case about the lady that got shot down at the Chinese restaurant." (R. at 238.) According to Staley, Petitioner told him "what they had planned to do and how it went down." (R. at 238.) Staley testified that Petitioner told him that Maurice Benning and Michael Pauls were involved in the incident. (R. at 238.) According to Staley, Petitioner "stated that Mike planned it, . . . planned to rob her and that they went up there and something went wrong and the lady got shot." (R. at 238.) Staley testified that Petitioner stated that "Maurice had give[n] him the gun and it was a 25." (R. at 239.) Staley testified he thought Petitioner said "Michael probably had another gun," but Staley did not recall what kind of gun. (R. at 239.) Staley testified that Petitioner stated "that he was there, that he was a part of it and that they w[ere] going to get away with it." (R. at 240.) Staley testified that Petitioner said he shot Ms. Chapman. (R. at 241.)

Temetrius Williams testified that on December 11, 1997, she saw Petitioner with Michael and Maurice. (R. at 249.) She testified that Michael called and asked her to come to Barnwell; when she arrived, Michael asked to borrow her car, but she declined. (R. at 250-51.) She testified that she instead offered to give Michael a ride, so "he said to give him a ride uptown and that's when [Petitioner] and Maurice came out" the front door of Michael's house. (R. at 251.) She testified that when she parked the car, Michael and Petitioner got out of the car, but Maurice stayed in the back seat. (R. at 252-53.) She testified that "they had little radios." (R. at 253.) She testified that when Michael and Petitioner came back, she could not hear what they were saying, "but . . . something went wrong and they said they wanted to leave." (R. at 253-54.) She testified "Mike asked to drop him off . . . around the circle in front of the bank," and Mike and Petitioner got out of the vehicle. (R. at 254-55.) She testified that they got back in her car, and Mike told her to follow a woman who came out of the bank. (R. at 256.) Although Mike told her to follow the woman, they were unable to do so and eventually went to the gas station. (R. at 257.) Mike said they were going to "Snoops house," so Ms. Williams "took them to Snoop's house over there across from Reid's" and then left. (R. at 257-58.) She testified that Petitioner "said that he was going to get some cheese tonight," which she suspected meant money. (R. at 259.) She testified that she did not tell the "whole truth" at Petitioner's first trial. (R. at 261.) She further testified that with respect to the statement she gave when officers came to her job, she testified at the first trial that she "just made it up." (R. at 270-71.) She testified that she felt "intimidated or harassed or coerced" into making the statement; she further admitted that during her testimony at the first trial, she testified that the officers were telling her what to write in her statement. (R. at 271-73.)

Maurice Benning testified that he met Michael Paul Buckmon¹⁵ on December 11, 1997, when Petitioner and Michael Buckmon came to Maurice's house. (R. at 280-81.) Benning testified that they left and went to Snoop's house. (R. at 281.) Benning testified that he, Petitioner, and Buckmon walked over to Michael Buckmon's house. (R. at 282.) According to Benning, when they got to Mike's house, Mike "was telling [Benning] about he needed to borrow some money" to pay a bill. (R. at 283.) Benning further testified,

15 The name Buckmon is spelled differently at different places in the record. (See, e.g., R. at 280.) In the instant Report and Recommendation, the spelling "Buckmon" is used.

[Michael Paul Buckmon] needed money to pay a bill, and I said, well, you know what I'm saying, my mama's holding some money for me, I'll let you borrow that. He was like, no, screw that. Then they begin talking about the restaurant, about robbing it and everything. I said, man, ya'll don't need to do that, you know what I mean.

(R. at 283.) Benning testified that they left Mike's house, and he went to his house to get the money, but when he came back out of his house, Petitioner and Mike were "way up the road." (R. at 284.) He stated, "I tried to catch up with them and let them know I'd let them borrow the money. Before I got to them, though, I heard a gunshot. And I went the other way. So I never, I mean not before I got to them, I got like around the corner and I saw Mike holding the gun and said he felt powerful." (R. at 284.) Benning stated that when he heard Mike make this statement, Mike was at the corner of the Chinese restaurant. (R. at 285.)

Benning testified that he remembered Temetrius Williams driving them around earlier in the day. (R. at 284-85.) When asked if he ever had a gun that day, Benning stated, "The only gun I ever had was the gun, my mother's gun that I let [Petitioner] borrow earlier that day. What he said was he needed it for some protection somebody was trying to hurt him." (R. at 285-86.) Benning could not identify State's Exhibit 13D; he said he had "never seen that gun before." (R. at 286.) Benning further testified as follows:

Q. When did you get that gun back from [Petitioner]?

A. When they came around the corner, I said, what happened. That's when I got the gun back from Mr. Sanders, and that's when Mike said, I shot her. . . .

Q. Who was with him?

A. Mr. Sanders were.

Q. And who'd you get the gun back from?

A. Mr. Sanders.

Q. All right. The gun that you got back, was it your mother's gun?

A. Yes, sir.

Q. Was it the 25 automatic your mother owned?

A. Yes, sir.

Q. What'd you do with the gun at that point?

A. I took it to the house and put it in my baby sister's closet and then the next day I returned it back to where it was supposed to be.

Q. Where was it supposed to be?

A. In my mother's drawer.

Q. And in your mother's house, I'm assuming?

A. Yes.

(R. at 290-91.) He testified that State's Exhibit 13D is not his mother's gun. (R. at 296.)

Dorothy Benning Highsmith testified that Maurice Benning was her son, that State's Exhibit 13D was her gun, and that she only had one gun during the time in question. (R. at 304-05.)

Jermaine Walker testified that his nickname was Snoop. (R. at 309-10.) He testified that on December 11, 1997, Temetrius dropped Maurice Benning, Michael Paul Buckmon, and Petitioner off at Walker's house. (R. at 310-12.) Although he could not remember which individual brought it up, Walker testified that someone at his house that day "came up talking about a lick," meaning to rob or steal. (R. at 312-14.) Walker testified that Benning, Buckmon, and Petitioner left Walker's house together, around 9 or 9:30 in the evening, and "walked down the road towards the old Huddle House and the Chinese restaurant." (R. at 315-16.) On cross-examination, Walker admitted that, at the first trial, Walker testified that the word "lick could mean anything." (R. at 322-23.)

Aurelien Vigier did not testify in person at Petitioner's second trial, but the transcript of his testimony from Petitioner's first trial was admitted as evidence. (See R. at 180-81, 228-29, 439-65.) Vigier testified at Petitioner's first trial that he knew Petitioner "through [the] jail in Barnwell." (R. at 453.) Vigier testified that Petitioner "told [Vigier] he [(Petitioner)] killed a Chinese woman." (R. at 454.) According to Vigier, Petitioner told him that Petitioner shot the victim "right outside the restaurant," and Vigier "believe[d]" Petitioner told him he used the .22 caliber gun, though "[t]here was a .25 and a .22." (R. at 455.) Vigier testified as follows: "He [(Petitioner)] told me that he shot her. He told me that he shot her with a .22. He told me he did not take the money." (R. at 456.) Vigier testified Petitioner "told [Vigier] that a car seemed to have turned around" and that Petitioner said he "thought the car might have heard the shot and his bandana was not on his nose," so he "was scared of being identified and he ran." (R. at 457.) As to what happened to the gun, Vigier stated: "He told me that he cleaned the gun with surgical gloves, took away all the fingerprints, and that he threw it on top of a restaurant in Georgia. . . ." (R. at 457.) Vigier testified Petitioner "mentioned to [Vigier] that there was a shell casing that was found at the crime scene" but that "they had the wrong gun." (R. at 459.) Vigier testified Petitioner told him "that he knew the woman would have about $2,000." (R. at 461.)

As noted above, on February 8, 2001, Petitioner was found guilty as charged. (R. at 427-29.) Having reviewed some of the evidence presented at trial, the undersigned now turns to the instant § 2254 petition, first addressing Respondent's contention that the petition is barred by the statute of limitations. A. Statute of Limitations

Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. 104-132, 110 Stat. 1214, a person "in custody pursuant to the judgment of a State court" and who seeks federal habeas relief is subject to a one-year statute of limitations. 28 U.S.C. § 2244(d)(1). The one-year period to file a § 2254 petition commences upon the latest of the following dates:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

§ 2244(d)(1)(A)-(D). The one-year period to file a § 2254 petition, however, is tolled during the time "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." Id. § 2244(d)(2).

Petitioner's habeas petition was not filed within the one-year time frame set forth in § 2244(d)(1)(A). With respect to direct review, the Supreme Court of South Carolina denied the Petition for Writ of Certiorari on May 18, 2005, and remitted the matter to the lower court on May 19, 2005. (Dkt. No. 17-16; Dkt. No. 17-17.) The time for seeking direct review of Petitioner's convictions concluded on August 17, 2005, when the period for filing a petition for a writ of certiorari in the United States Supreme Court expired. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012) (Where a petitioner does not seek direct review all the way to the Supreme Court of the United States, the conviction becomes final "when the time for pursuing direct review in this Court, or in state court, expires."); Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000); Muqit v. McFadden, Civ. A. No. 8:14-03555-RBH, 2015 WL 5691882, at *2 (D.S.C. Sept. 28, 2015) ("If the defendant seeks direct review in all appropriate state courts but does not file a petition for a writ of certiorari in the United States Supreme Court following direct review in the state courts, then the limitation period begins running when the time for [filing a petition in the Supreme Court]-90 days-has elapsed." (internal quotation marks and citations omitted)); see also Sup. Ct. R. 13(1).

Petitioner filed his first application for PCR on May 11, 2006. (R. at 480-509.) Thus, at the time he filed his application for PCR, 267 days of non-tolled time had passed. Judge Baxley dismissed Petitioner's first PCR application on October 4, 2007, and nothing was pending again until June 16, 2009, when Petitioner filed a second application for PCR (in which he argued, inter alia, that he was entitled to a belated appeal of the first PCR proceeding). (Dkt. No. 17-21; Dkt. No. 17-22.) Petitioner was ultimately allowed a belated appeal, and during that process, the Petitioner was afforded a de novo PCR hearing. (Dkt. No. 17-24; Dkt. No. 17-32.) That proceeding did not conclude until February 2, 2017. (Dkt. No. 17-48.) Because Petitioner was afforded a de novo PCR hearing, the undersigned recommends tolling the entire period from May 11, 2006, through February 2, 2017.

The statute of limitations started running again on February 3, 2017, and expired 98 days later, on May 12, 2017. Accordingly, when Petitioner filed the instant § 2254 petition on July 6, 2017, it was untimely by approximately 55 days.¹⁶

16 Petitioner did file a third application for PCR on July 1, 2016. (Dkt. No. 17-50). Although an order of dismissal was filed in that case, he correctly notes that a Consent Motion to Vacate Order of Dismissal is still pending in that PCR action. (Dkt. No. 57-1 at 15-16 of 54.) In light of this pending application for PCR, the undersigned addresses the merits of Petitioner's claims, as it is not clear whether this application will be considered "properly filed."

When a § 2254 petition is untimely, the petitioner may be entitled to equitable tolling. "A petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)) (internal quotation marks omitted). Petitioner bears the burden of showing that he is entitled to equitable tolling. Pace, 544 U.S. at 418. Additionally, the United States Supreme Court has held that "actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . or . . . expiration of the statute of limitations." McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).

In the instant action, Petitioner asserts he "has demonstrated entitlement to equitable tolling." (Dkt. No. 57-1 at 15 of 54.) He also correctly asserts that a Consent Motion to Vacate Order of Dismissal is pending in his third PCR action. (Dkt. No. 57-1 at 15-16 of 54.) Petitioner further asserts actual innocence "negates the statute of limitations" in his case. (Dkt. No. 57-1 at 17 of 54.) Petitioner states, "The new evidence that is available to this Honorable Court was the actual ruling of the South Carolina Supreme Court which described the evidence in the case of Petitioner's co-defendants as arising to only a 'suspicion of guilt.' Furthermore, Appellate Counsel Savitz candidly testified before the PCR Court that the only difference in the evidence of the Petitioner's case herein and the case of Michael Paul Buckmon (State v. Buckmon, 347 S.C. 316; 555 S.E.2d 402 (S.C. 2001), was the jailhouse testimony of Aurelien Vigier." (Dkt. No. 57-1 at 17-18 of 54.)

The undersigned first addresses Petitioner's claim of actual innocence. To meet the "threshold requirement" for actual innocence, Petitioner must "persuade[] the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 329 (1995). "To be credible," a claim of actual innocence "requires petitioner to support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial." Id. at 324. The Schlup standard is a "demanding" one:

A petitioner's burden at the gateway stage is to demonstrate that more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt—or, to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt.

House v. Bell, 547 U.S. 518, 538 (2006) (citing Schlup, 513 U.S. 298).

The "new evidence" to which Petitioner points is the Supreme Court of South Carolina's opinion in State v. Buckmon, 347 S.C. 316, 555 S.E.2d 402 (2001). It is not clear that this evidence is "new," as it was certainly available to Petitioner at the time of his retrial.¹⁷ Moreover, it is not clear that this "evidence" would have been admitted at Petitioner's second trial. See, e.g., Engquist v. Oregon Dep't of Agric., 478 F.3d 985, 1009 (9th Cir. 2007) ("Commentators agree that most courts forbid the mention of verdicts or damage amounts obtained in former or related cases." (citations omitted)); United States v. Bundy, No. 2:16-CR-46-GMN-PAL, 2017 WL 4803931, at *5 (D. Nev. Oct. 23, 2017) (granting the government's request to exclude evidence of the defendant's prior verdicts). Furthermore, Petitioner's case is distinguishable from State v. Buckmon, 347 S.C. 316, 555 S.E.2d 402 (2001), because, as noted by the Supreme Court of South Carolina in Buckmon, two "jailhouse informants" testified that Petitioner "told them he planned to rob the victim and had shot and killed the victim." Buckmon, 347 S.C. at 321, 555 S.E.2d at 404. In addition, as set forth above, Benning testified as to Petitioner's involvement. In the opinion of the undersigned, the foregoing does not meet the threshold requirement for actual innocence.

17 The undersigned notes that "[t]he circuit courts are split on whether 'new' includes only 'newly discovered' evidence-evidence that was not available at the time of trial-or more broadly encompasses 'newly presented' evidence-all evidence that was not presented to the jury during trial." Lopez v. Miller, 915 F. Supp. 2d 373, 400 n.16 (E.D.N.Y. 2013) (citing cases); see also Dick v. Muse, Civ. A. No. 3:10CV505, 2014 WL 4854689, at *2 & n.3 (E.D. Va. Sept. 29, 2014).

Petitioner further asserts he is entitled to equitable tolling, noting that a Consent Motion to Vacate Order of Dismissal is still pending in his third PCR action. (Dkt. No. 57-1 at 15-16 of 54.)¹⁸ Contrary to Petitioner's argument, it seems unlikely that his assertions would qualify him for equitable tolling as none of these assertions indicate extraordinary circumstances stood in his way and prevented timely filing. See, e.g., Parmaei v. Jackson, 378 F. App'x 331, 332 (4th Cir. 2010) ("[W]e conclude that equity should operate to allow [the petitioner] to pursue on § 2254 those claims that, but for the clerk's docketing failure, would have been timely before the district court."); Bogan v. South Carolina, 204 F. App'x 160, 160-61 (4th Cir. 2006) ("Recourse to equitable tolling must be guarded and infrequent. Consequently, equitable tolling is appropriate only when the government's wrongful conduct prevents a petitioner from filing a timely petition or when extraordinary circumstances beyond the petitioner's control make timely filing impossible."). In light of the foregoing, the undersigned recommends concluding Petitioner's § 2254 petition is untimely. Out of an abundance of caution, however, the undersigned addresses the merits of Petitioner's case. B. Ground One

18 To the extent Petitioner asserts he is entitled to an additional ninety days to file a petition for writ of certiorari as to his post-conviction relief, Lawrence v. Florida, 549 U.S. 327 (2007), states otherwise. See Lawrence, 549 U.S. at 337 ("The Court of Appeals correctly determined that the filing of a petition for certiorari before this Court does not toll the statute of limitations under § 2244(d)(2).").

In Ground One, Petitioner contends the state court lacked "subject matter jurisdiction" because his murder indictment did not have a "special count for [the] weapon used." (Dkt. No. 1 at 5 of 16.) He asserts the indictment said the crime "was committed with a gun, but there is no special indictment for a weapon." (Dkt. No. 1 at 5 of 16.) He complains that although there was only one bullet collected from the crime scene, there was conflicting evidence concerning whether the victim was shot with a .22 caliber bullet or .25 caliber bullet. (Dkt. No. 1 at 5 of 16.)

Petitioner is not entitled to federal habeas relief as to Ground One, as federal habeas relief is only available when the alleged error was based on a "violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see also Wright v. Angelone, 151 F.3d 151, 158 (4th Cir. 1998) (holding jurisdiction is a matter of state law); Epps v. Bazzle, Civ. A. No. 9:07-cv-3113-RBH, 2008 WL 2563151, at *2 (D.S.C. June 23, 2008) ("Petitioner's claim that the trial court lacked subject matter jurisdiction fails because circuit courts have subject matter jurisdiction to try criminal cases regardless of whether there is a valid indictment in any particular case." (emphasis added)); Dilworth v. Markle, 970 F. Supp. 2d 498, 507 (N.D. W. Va. 2013) ("[B]ecause there is no federal constitutional requirement that a state proceed on criminal charges by way of indictment, then there can be no constitutional challenge to the sufficiency of the indictment itself. What is required of a state indictment turns purely on an interpretation of state law . . . ."). The undersigned recommends granting summary judgment to Respondent as to Ground One. C. Ground Two

Petitioner contends in Ground Two that the state court "erred in not granting a directed verdict." (Dkt. No. 1 at 7 of 16.) Petitioner states (verbatim),

No physical evidence to convict me of crime. No-DNA, fingerprints, shoe prints, eyewitnesses. Crime happened around 10pm, last seen at 8:45pm or 9pm. Being held o[n] false jailhouse informant testimony. Jailhouse informer testimony is not back[ed] by evidence presented by State. Now I have to defend myself against two (2) different theories.

(Dkt. No. 1 at 7 of 16.)

Respondent contends that Ground Two is procedurally barred. (Dkt. No. 17 at 38.) Respondent states, "While Petitioner did move for a directed verdict at trial, he did not appeal the denial of the motion for a directed verdict in his direct appeal." (Dkt. No. 17 at 38.)

"Federal habeas review of a state prisoner's claims that are procedurally defaulted under independent and adequate state procedural rules is barred unless the prisoner can show cause for the default and demonstrate actual prejudice as a result of the alleged violation of federal law, or prove that failure to consider the claims will result in a fundamental miscarriage of justice." Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008) (quoting McCarver v. Lee, 221 F.3d 583, 588 (4th Cir. 2000)). Procedural default may be excused if the Petitioner "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." Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Martinez v. Ryan, 566 U.S. 1, 9 (2012). In the alternative for showing cause and prejudice, a petitioner may attempt to demonstrate a miscarriage of justice, e.g., actual innocence, Bousley v. United States, 523 U.S. 614, 623 (1998); see also Schlup v. Delo, 513 U.S. 298, 327 (1995), or abandonment by counsel. Maples v. Thomas, 565 U.S. 266, 283 (2012) (inquiring "whether [the petitioner] ha[d] shown that his attorneys of record abandoned him, thereby supplying the extraordinary circumstances beyond his control, necessary to lift the state procedural bar to his federal petition" (internal quotation marks and citations omitted)).

Petitioner did not raise the issue set forth in Ground Two on direct appeal. (See Dkt. No. 17-9 at 4 of 11.) Failure to do so means Ground Two is procedurally defaulted in the instant action. See Justus v. Murray, 897 F.2d 709, 711 (4th Cir. 1990) (habeas claim "concerning the sufficiency of the evidence supporting [the petitioner's] death sentence" was procedurally defaulted because it was not raised on direct appeal); see also S.C. CODE ANN. § 17-27-20(A)(6) (stating that § 17-27-20 "shall not be construed to permit collateral attack on the ground that the evidence was insufficient to support a conviction"); Drayton v. Evatt, 312 S.C. 4, 9, 430 S.E.2d 517, 520 (1993) ("Issues that could have been raised at trial or on direct appeal cannot be asserted in an application for post-conviction relief absent a claim of ineffective assistance of counsel."); Simmons v. State, 264 S.C. 417, 420-23, 215 S.E.2d 883, 883-86 (1975) (concluding two issues were direct appeal issues and therefore not properly raised in the post-conviction relief proceeding); Stephenson v. Taylor, Civ. A. No. 0:06-816-RBH, 2007 WL 1068247, at *2 (D.S.C. Mar. 30, 2007) (finding due process claim procedurally barred where, "even if under a liberal construction of the PCR application the issue is considered to have been raised before the PCR Judge, this was an issue that should have been raised on direct appeal and could not be raised on PCR except as to ineffective assistance of counsel").

As noted above, procedural default can be excused in certain circumstances. Here, however, even if Petitioner could excuse the procedural default, he is not entitled to federal habeas relief. While claims of insufficient evidence are cognizable on collateral review, "a federal court's review of such claims is 'sharply limited.'" Wilson v. Greene, 155 F.3d 396, 405 (4th Cir. 1998). As the Fourth Circuit stated in Wilson,

Federal review of the sufficiency of the evidence to support a state conviction is not meant to consider anew the jury's guilt determination or to replace the state's system of direct appellate review. Thus, a defendant is entitled to relief only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt.

Wilson, 155 F.3d at 405-06 (internal quotation marks and citations omitted).

Petitioner is not entitled to relief, as a rational trier of fact could have found him guilty beyond a reasonable doubt. Temetrius Williams testified that, on the night of the murder, she drove Petitioner, Maurice Benning, and Michael Buckmon around Barnwell, and that Petitioner "said that he was going to get some cheese tonight," which she suspected meant money. (R. at 249-58, 259.) She also testified that, during their drive around Barnwell, Michael Buckmon told her to follow a woman who came out of the bank, though they were ultimately unable to follow her. (R. at 256.)

Maurice Benning testified that, on the day of the murder, he was with Petitioner and Michael Paul Buckmon. (R. at 280-81.) Benning testified that Buckmon "was telling [Benning] about he needed to borrow some money" to pay a bill, and Buckmon and Petitioner began talking about the restaurant, about robbing it and everything" (R. at 283.) Benning testified that he went home to get money and was unable to catch up to Buckmon and Petitioner before he heard a gunshot. (R. at 284.) According to Benning, when he got close to the restaurant, he saw Buckmon holding a gun, and Buckmon said he felt powerful. (R. at 284.)

Benning also testified that he lent Petitioner a gun-his mother's gun-prior to the murder, but Benning could not identify the weapon retrieved from his home, State's Exhibit 13D. (R. at 285-86.) However, Ms. Highsmith, Benning's mother, testified that she only had one gun at the time in question, and that State's Exhibit 13D-a 25 automatic that was retrieved from her home-was her gun. (R. at 304-06.) Vello Paavel, who was qualified as an expert in the field of firearms identification and ballistics, testified that the shell casing found at the scene of the murder was fired by the gun retrieved from Highsmith's home. (Dkt. No. 17-49 at 3-4 of 4.) Mr. Paavel also testified that the bullet removed from the victim's body was a .25 caliber bullet. (R. at 209-17.)

Finally, David Staley testified that Petitioner told him (a) that Buckmon planned the robbery at the Chinese restaurant, (b) that Benning "had give[n Petitioner] the gun and it was a 25," and (c) that he (Petitioner) shot Ms. Chapman. (R. at 238-41.)

Thus, contrary to Petitioner's assertions, a rational trier of fact (and here, the trier of fact was Judge James R. Barber, III) could have found Petitioner guilty beyond a reasonable doubt of murder, attempted armed robbery, and criminal conspiracy.¹⁹ The undersigned therefore recommends granting Respondent's Motion for Summary Judgment as to Ground Two. See S.C. CODE ANN. § 16-17-410 (defining criminal conspiracy as "a combination between two or more persons for the purpose of accomplishing an unlawful object or a lawful object by unlawful means"); State v. Mattison, 388 S.C. 469, 479-80, 697 S.E.2d 578, 584 (2010) ("It is well settled that a defendant may be convicted on a theory of accomplice liability pursuant to an indictment charging him only with the principal offense. Under the 'hand of one is the hand of all' theory, one who joins with another to accomplish an illegal purpose is liable criminally for everything done by his confederate incidental to the execution of the common design and purpose. . . . Any person who is present at a homicide, aiding and abetting, is guilty of the homicide as a principal, even though another does the killing." (internal quotation marks and citations omitted)); State v. Oates, 421 S.C. 1, 19-20, 803 S.E.2d 911, 921 (Ct. App. 2017) ("Murder is the killing of any person with malice aforethought, either express or implied. Malice is the wrongful intent to injure another and indicates a wicked or depraved spirit intent on doing wrong. It is the doing of a wrongful act intentionally and without just cause or excuse." (internal quotation marks and citations omitted)); State v. Thompson, 374 S.C. 257, 262, 647 S.E.2d 702, 705 (Ct. App. 2007) ("A person is guilty of attempted armed robbery if the person has a specific intent to commit armed robbery. Robbery is defined as the felonious or unlawful taking of money, goods, or other personal property of any value from the person of another or in his presence by violence or by putting such person in fear. The crime is 'armed robbery' when a person commits a robbery while armed with a deadly weapon" (internal quotation marks and citations omitted)). D. Ground Three

19 To the extent Petitioner complains that his attorney "wouldn't argue" this issue "even though he won [a] co-defendant['s] case with the same argument," (Dkt. No. 1 at 7 of 16), the undersigned notes that there are some significant differences between the evidence presented during Petitioner's bench trial and the case of State v. Buckmon, 347 S.C. 316, 555 S.E.2d 204 (2001). For one, in State v. Buckmon, the Supreme Court of South Carolina did not have Benning's testimony before it.

In Ground Three, Petitioner contends his Sixth and Fourteenth Amendment rights were violated when he was "questioned by an individual that was an agent of the State and law enforcement." (Dkt. No. 1 at 8 of 16.) Petitioner states,

Before writing a statement against me around the end of 1998. He (Aurelien Vigier) was arrested with 3 other co-defendants, and he wrote voluntary statements against them. The State and law enforcement ask him to help them with his co-defendants and he did. So he was already agent of the State and law enforcement before he met and wrote statements against me.

(Dkt. No. 1 at 8 of 16.)

Respondent contends part of Ground Three is procedurally defaulted. (Dkt. No. 17 at 38.) Respondent states, "While Petitioner arguably made the objection at trial, the argument presented in Ground Three was not presented in Petitioner's direct appeal." (Dkt. No. 17 at 38.) Respondent asserts that in order to be preserved, this claim "would have to have been asserted at the trial level and then raised on direct appeal, which was not done in this case." (Dkt. No. 17 at 38.)

As noted above, the issue Petitioner raised on direct appeal is as follows:

The judge erred by considering the prior testimony of jailhouse informer Vigier, since the defense was unable to confront and cross-examine Vigier about a subsequent revelation from the solicitor that there had been a "tacit understanding" he would receive "some benefit by virtue of his cooperation in this case."

(Dkt. No. 17-9 at 4 of 11.) Thus, Petitioner raised a confrontation issue on direct appeal, not a Massiah issue. See Massiah v. United States, 377 U.S. 201, 206 (1964) ("We hold that the petitioner was denied the basic protections of [the Sixth Amendment] guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel."). The issue is therefore defaulted.

Regardless of the default, the undersigned recommends concluding Petitioner is not entitled to relief on Ground Three. The trial judge held a Massiah hearing in the first trial, (R. at 444-51); Aurelien Vigier testified during that hearing he was not "put together" with Petitioner "by anybody in law enforcement" and that he did not contact law enforcement-he said he contacted his lawyer, and the lawyer contacted law enforcement. (R. at 444-45.) Vigier testified that prior to his attorney contacting law enforcement, law enforcement had not "approached [him] about [Petitioner's] case in any way." (R. at 445.) He was asked, "Were you in any way working under the hand of the State when you heard these statements made by the defendant[] in this case?", and his response was "No, sir." (R. at 445.) Vigier testified that he spoke with law enforcement only once. (R. at 449.) Petitioner's attorney (Williams) stated,

Your Honor, the only thing I'd say, it clearly appears he was trying to gather information after he had contacted his lawyer and the solicitor's office. He stated on the record that he wasn't working for them at that point in time so I guess we've got to go with that.

(R. at 451.)

On this record, the undersigned discerns no violation of Petitioner's Sixth Amendment rights. See Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986) ("[T]he primary concern of the Massiah line of decisions is secret interrogation by investigatory techniques that are the equivalent of direct police interrogation. Since the Sixth Amendment is not violated whenever—by luck or happenstance—the State obtains incriminating statements from the accused after the right to counsel has attached, a defendant does not make out a violation of that right simply by showing that an informant, either through prior arrangement or voluntarily, reported his incriminating statements to the police. Rather, the defendant must demonstrate that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks." (internal quotation marks and citations omitted)); see also United States v. McFadden, 187 F. App'x 290, 294 (4th Cir. 2006) (no error in declining to suppress Woodward's testimony where, inter alia, "[a]ssuming that Woodward acted deliberately in eliciting McFadden's jailhouse statements, . . . the trial court specifically found that Woodward was not then acting on behalf of the Government and concluded that McFadden's Sixth Amendment rights were not violated. An accused's Sixth Amendment right to counsel is violated when incriminating statements are deliberately elicited by the Government, secured after a defendant has been indicted and outside the presence of his counsel, and the statements are admitted at trial. The Government's utilization of testimony from such an informant, however, does not contravene a defendant's rights unless it is established that the informant was acting as the Government's agent when the jailhouse statements were secured. Such an informant's activity may only be ascribed to the Government if the prosecutors have intentionally placed the informant in the jail cell with instructions to elicit a confession, or if there has been an agreement promising consideration for a confession from a particular defendant." (internal quotation marks and citations omitted)). The undersigned therefore recommends granting summary judgment to Respondent as to Ground Three. E. Ground Four and Ground Fourteen

Petitioner asserts in Ground Four that his "[r]ight to [a] jury trial was violated" where his "lawyer chose [a] bench trial." (Dkt. No. 1 at 10 of 16.) Petitioner states,

I thought after I got my case overturned (in July 2000) my next trial would be a bench trial. Well that's the way one of my lawyers made it look like. Told me we would take a bench trial. Didn't inform me I still had the right to a jury trial. Or if one person held out it would be a mistrial.

(Dkt. No. 1 at 10 of 16.) In Ground Fourteen, Petitioner contends counsel was ineffective because counsel "did not advise him of all of his Rights when he waived his right to a jury trial and Petitioner Failed to make a knowing and voluntary waiver of his right to a Trial by jury." (Dkt. No. 57-1 at 4 of 54.)

The United States Supreme Court has said that a meritorious ineffective assistance of counsel claim must show two things: first, that counsel's performance was deficient and, second, that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-96 (1984). A court's evaluation of counsel's performance under this standard must be "highly deferential," so as to not "second-guess" the performance. Id. at 689. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (internal quotation marks and citation omitted); see also Bowie v. Branker, 512 F.3d 112, 119 n.8 (4th Cir. 2008); Fields v. Att'y Gen. of Md., 956 F.2d 1290, 1297-99 (4th Cir. 1992); Roach v. Martin, 757 F.2d 1463, 1467 (4th Cir. 1985).

In order to establish the second prong of Strickland, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A "reasonable probability" has been defined as "a probability sufficient to undermine confidence in the outcome." Id. While Strickland itself is a deferential standard, when both § 2254(d) and Strickland apply, "review is doubly" deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011). Indeed, when § 2254(d) applies, "[t]he question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 562 U.S. at 105.

The PCR court addressed Petitioner's claim that counsel was ineffective in failing "to thoroughly advise the [Petitioner] of the potential benefits of a jury trial," which "resulted in the [Petitioner's] inability to make a knowing and voluntary waiver of his rights." (R. at 764.) The PCR court rejected this claim, finding that Petitioner "knowingly, voluntarily, and intelligently waived his right to a jury trial." (R. at 764.) The PCR court stated,

A defendant's knowing and voluntary waiver of statutory or constitutional rights must be established by a complete record, and may be accomplished by a colloquy between the court and defendant, between the court and defendant's counsel, or both.

. . .

In Moore v. State, 399 S.C. 641, 732 S.E.2d 871 (2012), the South Carolina Supreme Court found the trial court's lack of an on the record colloquy regarding the defendant's waiver of his right to jury trial was grounds for reversal and remand. Id. at 874. In Moore the court found that the "record reflects that there was no colloquy between the court and [defendant's] trial counsel or [defendant] regarding the waiver." Id. (emphasis added). Furthermore, defendant's counsel could not testify that he explained to defendant the differences between a jury trial and a bench trial. Id. Additionally, defendant testified during the PCR hearing that he completed only the seventh grade, could not read or write, and did not know ahead of time that his counsel was planning to make a motion for a bench trial. Id. at 875.

Unlike Moore, the trial court had a lengthy and detailed discussion with Applicant about his waiver of a jury trial. (Tr. p. line 3-p. 85 line 6). Specifically, the trial court questioned Applicant whether he wished to waive his right to a jury trial and move forward with a bench trial. (Tr. p. 83 lines 10-11). The trial court specifically advised Applicant that he had a constitutional right to a jury trial. (Tr. p. 83 lines 12-14). The trial court noted Applicant had recently been through one jury trial and "observed the process." (Tr. p. 83 lines 15-16). The trial court further noted that a jury had been drawn and the Applicant had the opportunity to participate in the selection of his jury panel. (Tr. p. 83 lines 15-21). The trial judge advised Applicant that he would be both the judge of the facts and the judge of the law in a bench trial. (Tr. p. 83 line 24-p. 84 line 1). The trial judge explained that "normally in cases, the jury is the judge of the facts. They listen to all of the evidence and ultimately determine the facts in the case." (Tr. p. 84 lines 2-5). The trial court further questioned both Counsel Sanders and Counsel Williams whether they deemed a further inquiry necessary. (Tr. p. 84 line 22-p. 85 line 1).

Additionally, Counsel Williams testified he was opposed to a bench trial and expressed his concerns to the Applicant. (PCR tr. p. 105 line 14-p. 106 line 3). Counsel Williams explained that he did not know "of any big trial like this that [I] ever heard of doing it as a bench trial as opposed to a jury trial. And I thought we'd be better off with a jury trial." (PCR tr. p. 105 lines 18-25). Counsel Williams testified he expressed his concerns about waiving a jury trial with Applicant, but he could not recall the specific details of the conversation after a twelve year time period. (PCR tr. p. 106 lines 1-3). Counsel Williams testified it is his normal procedure to discuss with a client "their rights in a case" including the right to a jury, the right to confront their witnesses, and the jury has to come to a unanimous

decision in order for a defendant to be found guilty. (PCR tr. p. 80 lines 20-24, p. 106 lines 18-25). Furthermore, Counsel Williams testified Judge Barber advised Applicant that he had a constitutional right to a jury trial and that he would be the judge of the facts and the law. (PCR tr. p. 106 lines 11-14). Counsel Williams testified Applicant previously had a jury trial and would have understood that the law requires a unanimous verdict. (PCR tr. p. 106 lines 18-21). Ultimately, Counsel Williams testified it was Applicant's decision to waive his right to a jury trial and Applicant did so against Counsel Williams's recommendation. (PCR tr. p. 107 lines 1-5).

Additionally, Applicant testified Judge Barber asked him if he wanted to proceed with a bench trial, which he responded, "yes, sir." (PCR tr. p. 173 lines 14-16). Applicant testified Judge Barber explained to him that he had a right to a jury trial. (PCR tr. p. 173 line 22-p. 174 line 1). Applicant testified Judge Barber mentioned that he had previously been through one jury trial and observed the process. (PCR tr. p. 174 lines 2-6). Applicant testified he recalled during his jury trial the judge instructing the jury on the law. (PCR tr. p. 176 lines 19-21). Applicant further testified during his jury trial the trial judge told the jury several times that their verdict had to be a unanimous decision (PCR tr. p. 176 lines 22-24). Applicant denied he understood the meaning of unanimous. (PCR tr. p. 177 lines 2-13). Applicant further testified he did not recall the judge polling the jury by asking them to raise their hand after they had reached their verdict. (PCR tr. p. 179 line 17-p. 180 line 2).

Applicant testified he told Judge Barber that he wished to go forward with a bench trial. (PCR tr. p. 174 lines 8-10). Applicant testified Judge Barber explained to him that he would be the judge of the law and the facts. (PCR tr. p. 174 lines 11-15). Applicant testified he understood that the jury would decide the facts of the case. (PCR tr. p. 174 lines 16-18). Applicant testified that he could not recall Judge Barber asking both attorneys if they were satisfied with the inquiry made regarding Applicant's decision to proceed with a bench trial, however the transcript reflects such questioning. (PCR tr. p. 174 lines 19-24; Tr. p. 84 line 22-p. 85 line 1). Applicant testified he did not ask Judge Barber any additional questions about the process of a bench . . . trial nor did he ask Judge Barber the meaning of the process. (PCR tr. p. 175 lines 4-9). Yet, Applicant testified if he had understood the difference between a bench trial and a jury trial he would not have waived his right to a jury trial. (PCR tr. p. 168 lines 1-5).

This Court finds that Applicant knowingly and voluntarily chose a bench trial in lieu of a jury trial. This Court finds that Applicant understood the differences between a jury trial and a bench trial. He was advised by Judge Barber that Judge Barber would decide the facts of the case instead of a jury if electing a bench trial. Further, Applicant's experience at the first trial decries any contention that he did not understand the pros and cons of a jury trial. This Court finds that Applicant's contention that he did not understand what "unanimous" meant is not credible. Especially given that he admitted recalling the trial court used this term in its

instructions to the jury at Applicant's first trial. This Court also rejects Counsel Sanders' contention that the decision to waive the jury trial was her decision and not her brother's. This Court also believes that her testimony was biased in favor of her brother. However, this Court notes that to the extent that Applicant was given an opportunity to decide prior to trial whether he wanted to choose a bench trial instead of a jury trial, this oversight would have been cured by the trial court's colloquy with Applicant that ensured a bench trial was what Applicant sought.

This Court finds that Applicant has not met his burden of proving counsel was ineffective and denies this allegation.

(R. at 764-68.)

The undersigned recommends granting summary judgment to Respondent on Ground Four and Ground Fourteen. It is well-settled that the right to a jury trial can be waived. See United States v. Boynes, 515 F.3d 284, 286-87 (4th Cir. 2008) ("The Sixth Amendment requires that the waiver [of a jury trial] be knowing, voluntary, and intelligent." (citing Patton v. United States, 281 U.S. 276, 312-13 (1930))); United States v. Jennings, 323 F.3d 263, 275-76 (4th Cir. 2003) ("A criminal defendant . . . may knowingly and voluntarily waive many of the most fundamental protections afforded by the Constitution, including . . . the right to a jury trial. To be valid, a defendant's waiver of . . . his right to a jury trial must be knowing and intelligent." (internal quotation marks and citations omitted)).

The state court's rejection of this claim is not contrary to, or an unreasonable application of, clearly established federal law, nor did the state court adjudication result in an unreasonable determination of the facts. In the case sub judice, when Petitioner moved for a bench trial, Petitioner was placed under oath and questioned by Judge Barber. (R. at 81-89.) Judge Barber asked Petitioner several questions:

Q. Now, do you, in fact, want to go forward with a bench trial?

A. Yes, sir.

Q. You understand that under our Constitution, you have a right to a jury trial?

A. Yes, sir.

Q. You observed-I know you've been through one jury trial and that's why we're back here and you've observed the process where we've gone through at least the selection of a jury here today. So even though they have not been sworn, so that if you want to exercise your right, you have a right to do so. You understand that?

A. Yes, sir.

Q. But you wish to go forward with a bench trial?

A. Yes, sir.

Q. And you understand that in that regard, I will be the judge of the facts, as well as the judge of the law?

A. Yes, sir.

Q. And normally in cases, the jury is the judge of the facts. They listen to all the evidence and ultimately determine the facts in the case. You understand that?

A. Yes, sir.

(R. at 85-86.) Judge Barber asked Counsel Sanders, Counsel Williams, and the solicitor if they "want[ed him] to make further inquiry about Mr. Sanders going forward with a bench trial," and all attorneys indicated they were satisfied. (R. at 86-87.)

Petitioner-while under oath-told Judge Barber that he wished to proceed with a bench trial even though he had the right to a jury trial. There was some conflicting testimony at the PCR hearing about who made the decision to proceed with a bench trial, but the PCR court's determination that Petitioner "knowingly and voluntarily chose a bench trial in lieu of a jury trial" is supported by the evidence. (R. at 768.) Counsel Williams-who the PCR court found credible-testified at the PCR hearing that he advised against a bench trial but that it was ultimately Petitioner's decision to pursue a bench trial. (R. at 603, 633, 760.) In addition, the PCR court specifically found Petitioner's contention that he "did not understand what 'unanimous' meant" was not credible. (R. at 768.) The PCR court also specifically rejected Counsel Sanders' testimony "that the decision to waive the jury trial was her decision and not her brother's," concluding this testimony "was biased in favor of her brother." (R. at 768.) As noted by the PCR court, Petitioner had already been through one jury trial, and Petitioner told Judge Barber he understood that while the jury is usually the judge of the facts, in a bench trial, Judge Barber would be the judge of the facts.

On this record, the Petitioner's claim that his right to a jury trial was violated does not warrant federal habeas relief. See Harrington v. Richter, 562 U.S. 86, 101 (2011) ("A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004))); id. at 105 (noting that when § 2254(d) applies, "the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard."); Wilson v. Ozmint, 352 F.3d 847, 860 (4th Cir. 2003) ("These facts do not compel the credibility determination reached by the state court, but they certainly provide sufficient basis, for purposes of section 2254(d)(2), to support such a determination."); Lott v. Coyle, 261 F.3d 594, 615 (6th Cir. 2001) ("A waiver may be voluntary, knowing, and intelligent if the defendant has a minimum amount of knowledge concerning his jury trial right and the mental capacity to understand the implications of the waiver of that right. Although a defendant need not have a detailed, technical knowledge of this right, [a] defendant is [deemed] sufficiently informed to make an intelligent waiver if he was aware that a jury is composed of 12 members of the community, [that] he may participate in the selection of the jurors, [that] the verdict of the jury must be unanimous, and that a judge alone will decide guilt or innocence should he waive his jury trial right." (internal quotation marks and citations omitted)); Jackson v. Burt, 877 F. Supp. 389, 393 (E.D. Mich. 1995), aff'd, 99 F.3d 1139 (6th Cir. 1996) (no habeas relief on claim that jury trial waiver was invalid, stating, "The record shows petitioner stated that he understood he had a right to a jury trial, expressed his voluntary waiver of his right, and acknowledged he signed the waiver form. Petitioner makes no attempt to show the waiver was executed other than by his own free will. In fact, petitioner admitted signing the jury trial waiver form which states that the signor has had time to consult with counsel, understands his constitutional right to a jury trial, and voluntarily waives this right. In addition, petitioner stated in open court that he understood his right to a jury trial and that he wanted the judge to try the case."). The undersigned therefore recommends granting summary judgment to Respondent as to Ground Four and Ground Fourteen. F. Ground Five , Ground Five (Supplemental), and Ground Eleven

In Ground Five, Petitioner contends that "[s]tate and local law enforcement gave perjured testimony in order to get indictment for murder charge." (Dkt. No. 1 at 13 of 16.) Petitioner states (verbatim),

M.E. report said victim died from .22 caliber gun. Firearm expert said bullet was a .25 caliber. Only one bullet was fired. Only one bullet was recovered from the victim. M.E. never changed his report for the whole thirteen (13) months I was in jail. He changed his findings when he got on the stand. Just got a copy of the original report recently. Lawyers were ineffective for not using this sooner. Never appealed or was raised at any time after I was convicted. Issue couldn't have been raised before jury was sworn in cause the M.E. Dr. Sexton did change his findings until he testified.

(Dkt. No. 1 at 13 of 16.) In Supplemental Ground Five and Ground Eleven, Petitioner claims trial counsel was "ineffective for failing to move to quash the grand jury indictments at the time of the Petitioner's trial." (Dkt. No. 57-1 at 3-4 of 54.) It appears Supplemental Ground Five and Ground Eleven pertain to the alleged "perjury," as Petitioner contends in Ground Eleven that Counsel Williams was ineffective in failing "to move to quash the Petitioner's indictment wherein the Solicitor secured the indictment of murder charges by using the blatantly perjured testimony of state and local law enforcement officers." (Dkt. No. 57-1 at 35 of 54.)

To the extent Petitioner claims an error in the indictment, it does not appear that this issue was raised at any time in the state courts and is therefore defaulted. Moreover, federal habeas relief is only available when the alleged error was based on a "violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see also Wright v. Angelone, 151 F.3d 151, 158 (4th Cir. 1998) (holding jurisdiction is a matter of state law). "Variances and other deficiencies in state court indictments are not ordinarily a basis of federal habeas corpus relief unless the deficiency makes the trial so egregiously unfair as to amount to a deprivation of the defendant's right to due process." Ashford v. Edwards, 780 F.2d 405, 407 (4th Cir. 1985). The alleged deficiency here is "perjured testimony."

"[I]t is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment." Napue v. Illinois, 360 U.S. 264, 269 (1959); see also Badsen v. Lee, 290 F.3d 602, 614 (4th Cir. 2002). To meet his burden of proof on such a claim, a petitioner must show that (1) perjured testimony was presented; (2) the prosecution knew the evidence was false; and (3) there is "any reasonable likelihood that the false testimony could have affected the judgment of the jury." Boyd v. French, 147 F.3d 319, 330 (4th Cir. 1998) (citations and internal quotations omitted). The testimony to which Petitioner points in his habeas petition, contending it was perjured testimony, involves inconsistencies that were highlighted at trial. (See R. at 151-55, 217.)²⁰ However, "[c]ontradictory testimony from witnesses, inconsistencies within a witness's testimony, and conflicts between reports, written statements, and the trial testimony of prosecution witnesses do not, standing alone, establish perjury." Fairfax v. Scott, 39 F.3d 319, at *1 (5th Cir. 1994) (citations omitted); see also Bank of Nova Scotia v. United States, 487 U.S. 250, 261 (1988) ("Although the Government may have had doubts about the accuracy of certain aspects of [evidence], this is quite different from having knowledge of falsity."); United States v. Bonsu, 291 F. App'x 505, 511 (4th Cir. 2008) (concluding the appellants could not establish that the challenged testimony was perjured where appellants "knew of the [witnesses'] inconsistent statements and chose to use them extensively at trial for impeachment purposes," stating, "As the trier of fact, the jury weighed the competing evidence and found the government's witnesses and evidence to be more credible."); United States v. Griley, 814 F.2d 967, 971 (4th Cir. 1987) ("Mere inconsistencies in testimony by government witnesses do not establish the government's knowing use of false testimony." (citation omitted)); Macon v. Davis, 450 F. App'x 491, 493 (6th Cir. 2011) (affirming denial of petition for writ of habeas corpus on claim that prosecutor denied petitioner a fair trial by knowingly using perjured testimony where, inter alia, "Grimmet testified that he was locked in the stairwell following the shooting and had to be let in by a neighbor," and the neighbor testified that "when she came out into the hall to investigate the gunshots, Grimmet was walking down the hall," stating, "[B]ecause both of these witnesses were heard by the jury, it was up to the jury to determine which witness was credible." (citation omitted)). Contrary to Petitioner's assertions, the differing testimony about the caliber of the bullet does not amount to a due process violation.

20 As set forth above, Dr. Sexon testified that when he removed the bullet from the body, he believed it was a .22 caliber bullet, but he later found out the ballistics expert indicated it was a .25 caliber bullet. (R. at 151-55.) Mr. Paavel, the ballistics expert, testified the bullet removed from the victim was a .25 caliber bullet, but that it could have been confused with a .22 caliber bullet. (R. at 217.)

To the extent Petitioner contends counsel was ineffective "for not using this [information] sooner," (Dkt. No. 1 at 13 of 16), this claim is defaulted as it was not raised on appeal from the denial of his application for PCR, (Dkt. No. 17-42 at 3 of 51). See Longworth v. Ozmint, 377 F.3d 437, 447-48 (4th Cir. 2004) (concluding that certain grounds are "procedurally defaulted as a result of [the petitioner's] failure to raise them in his petition for certiorari to the South Carolina Supreme Court for review of the State PCR Court's decision"); see also Johnson v. Warden of Broad River Corr. Inst., No. 12-7270, 2013 WL 856731 (4th Cir. Mar. 8, 2013) ("[B]ecause Johnson alleges only ineffective assistance of appellate postconviction counsel, his allegations do not constitute cause for his failure to exhaust under the limited exception in Martinez. Instead, his claims fall under the general Coleman rule that ineffective assistance of postconviction counsel cannot constitute cause for procedural default."). In light of the foregoing, the undersigned recommends granting summary judgment to Respondent as to Ground Five, Supplemental Ground Five, and Ground Eleven. G. Ground One (Supplemental)

Petitioner contends in Supplemental Ground One that trial counsel was ineffective in filing a "Motion for a Speedy Trial in the wake of the negative pre-trial publicity generated by the horrific Sonic Restaurant murders, which took place just a few weeks before Petitioner's scheduled jury trial." (Dkt. No. 57-1 at 18 of 54.) In addressing this claim, Respondent asserts, inter alia, that Supplemental Ground One is procedurally barred. (See Dkt. No. 61 at 2, 5.)

The undersigned agrees with Respondent that Supplemental Ground One is procedurally barred. Petitioner did not present this claim to the PCR court, and the PCR court therefore did not rule on it.²¹ See Montgomery v. Bodison, C.A. No. 6:09-778-HMH-WMC, 2010 WL 297667, at *4 (D.S.C. Jan. 20, 2010); Cleofas v. South Carolina, C.A. No. 3:08-2861-RBH, 2009 WL 2182152, at *5 (D.S.C. July 20, 2009); Miller v. Padula, C.A. No. 2:07-3149-PMD, 2008 WL 1826495, at *10 (D.S.C. Apr. 23, 2008).

21 In his PCR proceedings, Petitioner did raise the claim that counsel was ineffective in failing to seek a continuance, (see R. at 768), and that claim is addressed in the undersigned's discussion as to Supplemental Ground Two.

Pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), "[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. To establish that PCR Counsel provided ineffective assistance of counsel, Petitioner must show that: (1) his counsel's performance "fell below an objective standard of reasonableness"; and (2) he was prejudiced by his counsel's deficient performance. Strickland, 466 U.S. at 687-88. There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. To establish prejudice, Petitioner must demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694; see also Preyor v. Stephens, 537 F. App'x 412, 421 (5th Cir. 2013) ("To establish ineffective assistance of his initial state habeas counsel, [Petitioner] must show both that habeas counsel's performance . . . was deficient and that he was prejudiced by the deficient performance—that is, there is a reasonable probability that he would have been granted state habeas relief had the claims been presented in the first state habeas application."); Foley v. White, No. 6:00-CV-552-DCR-REW, 2012 WL 6965070, at *9 (E.D. Ky. Nov. 15, 2012), adopted at 2013 WL 375185 (E.D. Ky. Jan. 30, 2013) ("In the context of Martinez, a demonstration of prejudice would require [Petitioner] to show that, but for post-conviction counsel's errors, there is a reasonable probability he 'would have received relief on a claim of ineffective assistance of trial counsel in state court.'" (quoting Leavitt v. Arave, No. 1:93-cv-0024-BLW, 2012 WL 1995091, at *10 (D. Idaho June 1, 2012))); Horonzy v. Smith, No. 1:11-cv-00235-EJL, 2012 WL 4017927, at *6 (D. Idaho Sept. 12, 2012) ("The application of the Strickland test in this instance means that Petitioner is required to show that counsel's representation during the post-conviction proceeding was objectively unreasonable, and that, but for his errors, there is a reasonable probability that Petitioner would have received relief on a claim of ineffective assistance of trial counsel in the state post-conviction matter. This standard is a high one.").

To the extent Petitioner contends this claim should be reviewed pursuant to Martinez, the undersigned disagrees and recommends concluding the bar precludes federal habeas review. Counsel Williams had tried this case once before, (R. at 599-600), and he testified he was ready to try the case, (R. at 631). At trial, when Counsel Sanders complained about "how [she] was advised that this matter was going to trial," (R. at 87-89), the judge specifically asked her if defense counsel was "moving for a continuance," and Counsel Sanders replied, "No, Your Honor." (R. at 87.) On these facts, PCR counsel's failure to raise the claim that counsel was ineffective in filing a motion for a speedy trial is not sufficient to lift the procedural bar. See Martinez, 566 U.S. at 14 ("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." (citation omitted)); see id. at 15-16 (procedural default precludes federal habeas review if the ineffective assistance of trial counsel claim "does not have any merit or . . . is wholly without factual support"); see also Archie v. Cartledge, Civ. A. No. 2:13-3052-RMG, 2015 WL 1169917, at *14 (D.S.C. Mar. 13, 2015) (granting summary judgment on defaulted claim "given its lack of factual support"). The undersigned therefore recommends granting summary judgment to Respondent as to Supplemental Ground One. H. Ground Two (Supplemental)

In Supplemental Ground Two, Petitioner contends trial counsel was ineffective in failing "to seek a continuance despite the fact that trial counsel, Brenda K. Sanders, was not properly notified that the Petitioner's case was scheduled for trial and where pre-publicity from another horrific restaurant murder and robbery dominated the media just prior to the Petitioner's bench trial which prejudiced the Petitioner." (Dkt. No. 57-1 at 21 of 54.) Although this claim was raised to and ruled upon by the PCR court, (see R. at 768-69), Petitioner did not raise this claim on appeal from the denial of his application for PCR. (See Dkt. No. 17-42 at 3 of 51). The claim is therefore defaulted. See Longworth v. Ozmint, 377 F.3d 437, 447-48 (4th Cir. 2004) (concluding that certain grounds are "procedurally defaulted as a result of [the petitioner's] failure to raise them in his petition for certiorari to the South Carolina Supreme Court for review of the State PCR Court's decision"); see also Johnson v. Warden of Broad River Corr. Inst., No. 12-7270, 2013 WL 856731 (4th Cir. Mar. 8, 2013) ("[B]ecause Johnson alleges only ineffective assistance of appellate postconviction counsel, his allegations do not constitute cause for his failure to exhaust under the limited exception in Martinez. Instead, his claims fall under the general Coleman rule that ineffective assistance of postconviction counsel cannot constitute cause for procedural default."). The undersigned recommends concluding Respondent is entitled to summary judgment as to Supplemental Ground Two. I. Ground Three (Supplemental)

Petitioner contends in Supplemental Ground Three that trial counsel was ineffective in "failing to adequately argue the facts in support of the Petitioner's motion to exclude from evidence a transcript of Aurelien Vigier's testimony from the Petitioner's trial." (Dkt. No. 57-1 at 24 of 54.) Petitioner asserts that Attorney Sanders "had no previous opportunity to cross-examine" Vigier, "and as a result the Petitioner suffered prejudice." (Dkt. No. 57-1 at 24 of 54.) Petitioner further asserts that Counsel Williams' cross-examination of Vigier "fit the textbook definition of 'ineffective assistance of counsel. (Dkt. No. 57-1 at 24 of 54.)

The PCR court addressed this claim of ineffective assistance of counsel as follows:

This Court finds Applicant's allegation that trial counsel was ineffective for failing to adequately argue the facts in support of the Applicant's motion to exclude from evidence a transcript of Aurelin Vigier's (Vigier) testimony from the Applicant's trial where Counsel Sanders had no previous opportunity to cross-examine the witness is without merit. Counsel Williams recalled Counsel Sanders arguing against the introduction of Vigier's prior trial testimony based on the fact that she had not had an opportunity to participate in his cross examination during the Massiah hearing. (PCR tr. p. 88 lines 5-17). Counsel Williams recalled Judge Barber referencing the fact that although Counsel Sanders was not counsel of record during the first trial, she had the ability to participate through Counsel Williams. (PCR tr. p. 89 line 22-p. 90 line 4). Counsel Williams testified he did not object to Judge

Barber's assertion because he recalled meeting with Counsel Sanders prior to trial, reviewing evidence, and Counsel Williams specifically recalled Counsel Sanders being present during the trial. (PCR tr. p. 90 lines 5-12). Counsel Williams recalled meeting with Counsel Sanders during the first trial, but could not recall specifically whether Counsel Sanders provided notes to him. (PCR tr. p. 91 lines 4-14). Based on the foregoing, this Court finds that the Applicant has not shown that trial counsel's performance fell below "professional norms." Cherry, 300 S.C. at 117, 385 S.E.2d at 625 (citing Strickland). Further SCRE 804(b)(1) states that former testimony is not excluded by the hearsay rule if the:

"Former Testimony: Testimony given as a witness at another hearing of the same or a different proceeding . . . taken in accordance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination."

(emphasis added). This Court finds that under the rules of evidence the right to cross examine a witness follows a party not the individual attorney. As such, this Court finds that Counsel Williams had the opportunity and similar motive when cross examining Vigier during Applicant's first trial. Furthermore, the Applicant has shown no actual prejudice from any alleged deficiency of counsel. As such, this Court finds this allegation is denied and dismissed with prejudice.

(R. at 769-70.)

The PCR court also addressed the related claim that Counsel Sanders "was ineffective for failing to respond to the trial judge's assumption that she had the opportunity to have Attorney Williams pose any questions she deemed necessary to witness Vigier and allowing the transcript to be admitted into evidence without objection." (R. at 771.) The PCR court stated,

This Court finds Applicant's allegation that trial counsel was ineffective for failing to respond to the trial judge's assumption that she had the opportunity to have Attorney Williams pose any questions she deemed necessary to witness Vigier is without merit. Counsel Sanders testified there were recesses where she was able to consult with Counsel Williams. (PCR tr. p. 129 lines 3-6). Counsel Sanders further testified she may have had the opportunity to hand Counsel Williams notes and talk to Counsel Williams during the Massiah hearing of the first jury trial. (PCR tr. p. 130 lines 9-17). Counsel Williams testified Judge Barber referenced the fact that although Counsel Sanders was not the counsel of record during the jury trial, she had the ability to participate through Counsel Williams. (PCR tr. p. 89 line 22-p. 90 line 4). Counsel Williams testified he did not object to Judge Barber's assertion because he recalled meeting with Counsel Sanders prior to the jury trial, reviewing evidence with Counsel Sanders, and Counsel Sanders was present during the jury trial. (PCR tr. p. 90 lines 5-12). Based on the foregoing, this Court finds that the Applicant has not shown that trial counsel's performance fell below "professional norms." Cherry, 300 S.C. at 117, 385 S.E.2d at 625 (citing Strickland).

Furthermore, Applicant can show no prejudice as the South Carolina Court of Appeals specifically found that the admission of Vigier's prior testimony did not violate Applicant's Confrontations Clause rights. State v. Sanders, 356 S.C. 214, 588 S.E.2d 142 (Ct. App. 2003). The court held that Vigier's testimony was properly admitted during the bench trial under Rule 804(b)(1). Therefore, this Court finds Applicant has failed to meet his burden of proof and this allegation is denied and dismissed with prejudice.

(R. at 771-72.)

Petitioner appears to contend that counsel did not "adequately argue the facts" in support of his motion to exclude Vigier's testimony, in that counsel did not sufficiently argue Counsel Sanders did not have the opportunity to cross-examine Vigier. To the extent Petitioner raises that claim, he is not entitled to federal habeas relief, as the record refutes this claim. In State v. Sanders, 356 S.C. 214, 588 S.E.2d 142 (2003), the Supreme Court of South Carolina noted the following:

Prior to re-trial of the case, the State moved to admit a transcript of Vigier's testimony from the first trial into evidence, asserting Vigier could not be located for service of subpoena because he had left the state in violation of the terms of a probationary sentence. Sanders objected to the admission of the prior testimony, arguing its admission would violate the Confrontation Clause of the Sixth Amendment to the United States Constitution. Specifically , Sanders' sister , acting as defense counsel , asserted that had she been allowed to participate at the first trial she would have been more thorough than defense counsel was in cross-examining Vigier concerning his alleged deal with the State in exchange for his testimony against Sanders.

Sanders, 356 S.C. at 216, 588 S.E.2d at 143 (emphasis added). And indeed, counsel argued as much at trial, and the trial court considered it. (R. at 180-81, 228-29.) Accordingly, this claim of ineffective assistance of trial counsel fails. See, e.g., Mason v. Allen, 605 F.3d 1114, 1121 (11th Cir. 2010) ("To the extent that Mason argues that the State failed to advise him of his Miranda rights, we find this claim refuted by the record. Accordingly, we cannot say that the state court's ruling on the legality of his confession is contrary to or an unreasonable application of clearly established federal law .").

Petitioner appears to raise several other claims in Supplemental Ground Three, contending that Counsel Williams was ineffective in cross-examining Vigier and that the state court erred in concluding Vigier was unavailable. (Dkt. No. 57-1 at 24-30 of 54.) Petitioner also appears to assert a Confrontation Clause claim. (Dkt. No. 57-1 at 30-31 of 54.)

To the extent Petitioner claims Counsel Williams was ineffective in his cross-examination of Vigier, this claim was not presented to, or ruled upon, by the PCR court, and it is therefore procedurally defaulted. See Montgomery v. Bodison, C.A. No. 6:09-778-HMH-WMC, 2010 WL 297667, at *4 (D.S.C. Jan. 20, 2010); Cleofas v. South Carolina, C.A. No. 3:08-2861-RBH, 2009 WL 2182152, at *5 (D.S.C. July 20, 2009); Miller v. Padula, C.A. No. 2:07-3149-PMD, 2008 WL 1826495, at *10 (D.S.C. Apr. 23, 2008). And the undersigned discerns nothing sufficient to warrant lifting the procedural bar. Attorney Williams did cross-examine Vigier at the first trial, highlighting that Vigier indicated Petitioner told him that the victim was shot with a .22 caliber gun because the .25 caliber gun jammed. (R. at 464.) Attorney Williams asked Vigier whether he was "hoping [the State was] going to give [him] a deal," and Vigier said, "I hope so." (R. at 462.) Although this testimony was not on cross-examination, Vigier testified that he was from France but that he had been in the United States since he was about eleven years old. (R. at 452.) He also testified (on direct examination) that he had been in jail for almost seven months on charges of armed robbery, assault and battery with intent to kill, and possession of a firearm. (R. at 453.) In addition, at the second trial, Judge Barber admitted Vigier's testimony "along with the stipulation that the State has made as to what benefits he ultimately received." (R. at 232.) On these facts, the Petitioner has not overcome the presumption that PCR counsel Shurling's decision not to bring this claim constituted ineffective assistance of counsel.

To the extent Petitioner asserts the trial court erred in concluding Vigier was unavailable, it does not appear Petitioner argued at trial that Vigier was available, (R. at 177), nor did he raise such an argument on direct appeal, (Dkt. No. 17-9 at 4 of 11). Accordingly, the claim is procedurally defaulted. See Matthews v. Evatt, 105 F.3d 907, 911-17 (4th Cir. 1997), abrogated on other grounds by Miller-El v. Dretke, 545 U.S. 231 (2005); see also Joseph v. Angelone, 184 F.3d 320, 328 (4th Cir. 1999) ("In order to avoid procedural default, the 'substance' of [the petitioner's] claim must have been 'fairly presented' in state court." (quoting Townes v. Murray, 68 F.3d 840, 846 (4th Cir. 1995))); Drayton v. Evatt, 312 S.C. 4, 9, 430 S.E.2d 517, 520 (1993) ("Issues that could have been raised at trial or on direct appeal cannot be asserted in an application for post-conviction relief absent a claim of ineffective assistance of counsel."). Moreover, it appears the state court examined whether "the State conducted the requisite good-faith search" for Vigier, as the state court concluded that "due diligence has been made to attempt to locate" Vigier, (R. at 181). See Hardy v. Cross, 565 U.S. 65, 70-72 (2011) ("As we observed in Roberts, when a witness disappears before trial, it is always possible to think of additional steps that the prosecution might have taken to secure the witness' presence, but the Sixth Amendment does not require the prosecution to exhaust every avenue of inquiry, no matter how unpromising. And, more to the point, the deferential standard of review set out in 28 U.S.C. § 2254(d) does not permit a federal court to overturn a state court's decision on the question of unavailability merely because the federal court identifies additional steps that might have been taken. Under AEDPA, if the state-court decision was reasonable, it cannot be disturbed." (citing Ohio v. Roberts, 448 U.S. 56 (1980)). The undersigned recommends concluding Petitioner is not entitled to relief on a claim that the trial court erred in concluding Vigier was unavailable.

As noted above, Petitioner also asserts that admission of Vigier's testimony violated the Confrontation Clause. (Dkt. No. 57-1 at 30-31 of 54.) The South Carolina Court of Appeals rejected Petitioner's assertion that the admission of Vigier's prior testimony violated his Confrontation Clause rights. See State v. Sanders, 356 S.C. 214, 588 S.E.2d 142 (2003). The court stated,

Sanders asserts the admission of Vigier's prior testimony violated his Confrontation Clause rights because he was not afforded an opportunity to cross-examine the witness regarding "subsequent revelations" pertaining to the State's alleged "deal" with the witness. We disagree.

[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Here, Vigier was unavailable and his prior testimony fell within an established hearsay exception. Thus, Sanders' Confrontation Clause rights were not violated.

Sanders, 356 S.C. at 216-17, 588 S.E.2d at 143-44. Citing Rule 804(b) of the South Carolina Rules of Evidence, the court noted that "certain statements are not excluded by the hearsay rule if the declarant is unavailable as a witness." Id. at 217, 588 S.E.2d at 144. The court continued:

"Unavailable" is defined in Rule 804(a) and includes situations in which the declarant is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance by process or other reasonable means. Here, it is uncontested that the State made numerous unsuccessful attempts to procure Vigier's appearance at the re-trial by subpoena and that Vigier was, therefore, unavailable within the meaning of Rule 804(a) and (b).

The more central question, however, is whether Sanders was afforded an opportunity and had a sufficiently similar motive to develop Vigier's testimony during the first trial. We agree with the trial court that Sanders had such motive and opportunity. At the first trial, Vigier testified that while he was incarcerated with Sanders, Sanders told him he shot and killed the victim with a .22 caliber pistol, then cleaned the gun and threw it on top of a restaurant in Georgia. He further testified the State had not offered him a deal and that no promises were made to him to secure his testimony. During cross-examination, Vigier acknowledged he hoped he would get a deal because of his testimony.

During the re-trial, the assistant solicitor made the following statement regarding his conversations with Vigier before the first trial:

We were actually approached by his attorney . . . and he asked us if we would give him consideration. And we told his attorney. . . we couldn't get him a deal right now, but we would certainly take into account when . . . it came time for him to go to court. . . . The State is willing to stipulate that he did receive a recommended probation sentence sometime after . . . testifying in this trial, as well as the trial of his co-defendants. And it's the State's testimony that he was not given any deal, that we told him his cooperation would be considered when it came time for his case to go to court.

In ruling the testimony admissible, the court stated that in its opinion "there was at least some tacit understanding that [Vigier] might get some benefit at some point in time by virtue of [his] cooperation."

Sanders would have this court hold that the assistant solicitor's statements amount to a significant revelation as to secret negotiations, and Sanders'

unawareness of these negotiations during the prior proceedings negatively impacted his ability to effectively cross-examine Vigier. Our review of the record convinces us differently. The assistant solicitor's recount of his conversations with Vigier was consistent with Vigier's testimony at the first trial: Vigier expected he would receive some benefit from his testimony against Sanders, but the State made no promise of a deal to secure his testimony. Despite ample opportunity, the only question defense counsel asked Vigier about his communications with the solicitor's office was whether he was hoping to receive a deal from them. Additionally, although Sanders argues the change in other evidence made Vigier's testimony more central to the State's case in the re-trial, Vigier nevertheless testified Sanders confessed to the crimes and thus Sanders unquestionably had a motive to develop any potential weaknesses in his testimony during cross-examination. Because Sanders had sufficient opportunity and motive to develop Vigier's testimony during the original trial to satisfy the requirements of Rule 804 (b)(1), SCRE and because Vigier was unavailable, the court properly admitted Vigier's prior testimony in the re-trial. As such, Sanders' right of confrontation was not violated.

Sanders, 356 S.C. at 217-19, 588 S.E.2d at 144-45.

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that "[w]here testimonial evidence is at issue, . . . the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination." Crawford, 541 U.S. at 68. The hearsay at issue in the case sub judice is testimonial, as Vigier's testimony was at Petitioner's first trial. Id. ("Whatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations."). However, as set forth above, the state court concluded that Vigier was unavailable and that Petitioner had a prior opportunity to cross-examine Vigier. Id. Petitioner has not shown that the state court's rejection of Petitioner's Confrontation Clause claim was contrary to, or an unreasonable application of, clearly established federal law, nor has Petitioner shown the state court's adjudication was based on an unreasonable determination of the facts. See id.; see also Ivey v. Ozmint, 304 F. App'x 144, 150-51 (4th Cir. 2008) (no habeas relief on claim that attorney's "failure to challenge the admission of Neumon's prior testimony on Confrontation Clause grounds constituted ineffective assistance of appellate counsel," stating, "[Ohio v.] Roberts . . . did not bar Neumon's prior testimony from the Harrison trial, where Neumon had been available for and subjected to cross- examination by Ivey in that proceeding." (citing Ohio v. Roberts, 448 U.S. 56 (1980)));²² United States v. Richardson, 781 F.3d 237, 243-45 (5th Cir. 2015) (rejecting claim that "admission of Neville's prior testimony in the second trial violated his Sixth Amendment right to confront adverse witnesses because the denial of his right of self-representation at the first trial deprived him of an adequate opportunity to cross-examine Neville" where counsel at the first trial cross-examined Neville "in detail" about, inter alia, "his motive to cooperate with law enforcement"). In light of the foregoing, the undersigned recommends granting summary judgment to Respondent as to Supplemental Ground Three. J. Ground Four (Supplemental)

22 The South Carolina Court of Appeals decided Petitioner's case, see State v. Sanders, 356 S.C. 214, 588 S.E.2d 142 (2003), in 2003, prior to the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004). In a footnote in Ivey v. Ozmint, the Fourth Circuit stated, "The state court correctly noted that Crawford . . . does not apply retroactively and was not applicable during the Montgomery trial." Ivey, 304 F. App'x at 150 n.4. In addition, the fact that the petitioner had different counsel at the two trials was deemed "immaterial." Id. at 151 n.6.

In Supplemental Ground Four, it appears that Petitioner attempts to raise a Brady claim. (Dkt. No. 57-1 at 31 of 54.) Petitioner states,

The Solicitor and Trial Counsel Williams failed to provide the Petitioner with a copy of the taped statement of Aurelien Vigier wherein Vigier proclaimed that he was an agent working for the state when he entered the Petitioner's jail cell which was a Brady violation which prejudiced the Petitioner.

(Dkt. No. 57-1 at 31 of 54.) As with so many of Petitioner's claims, this claim is defaulted, as it does not appear that it was presented in state court.

In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment . . . ." Brady, 373 U.S. at 87. To show a Brady violation, the Petitioner must show: (1) the evidence was favorable to the accused; (2) the evidence was suppressed by the State, either willfully or inadvertently; and (3) prejudice ensued. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999). In the instant case, Brady does not appear to be implicated, given that a Brady claim requires that the evidence be suppressed by the State. Based upon Petitioner's own assertions, Attorney Williams "had the tape in his possession." (Dkt. No. 57-1 at 30 of 54.) Brady does not appear to be implicated, as the tape was not suppressed by the State. The undersigned therefore recommends granting summary judgment to Respondent as to Supplemental Ground Four.²³ K. Ground Six Through Ground Ten

23 To the extent Petitioner claims Attorney Williams was ineffective in failing to cross-examine Vigier about this statement, these allegations were not presented to or ruled upon by the PCR court and are therefore defaulted. The undersigned further notes that this statement does not appear to be in the record, nor does this claim of ineffective assistance appear to be-in the opinion of the undersigned-a substantial one. Even if Vigier had been cross-examined on this alleged statement, and his testimony excluded, there is not a reasonable likelihood of a different result, as both Staley and Benning clearly implicated Petitioner in the crimes.

Petitioner raises similar grounds for relief in Grounds Six through Ten. Specifically, in these grounds, Petitioner contends as follows:

Ground Six: Did the trial court err, and or has the defendant's 5th, 6th, 14th Amendment rights of the U.S. Constitution, as well as Article IV§2 and his due process rights violated by the indictment(s) of South Carolina, as constructed, possessing a structural constitutional error and or defect, by it's language or charge contained therein.

Ground Seven: Petitioner's indictment for murder (98-GS-06-180) was defective because it did not state a place and time of assault and the place and time of the death of Minh Chapman pursuant to S.C. Code Ann. § 17-19-30 (1985) thereby meaning that the Circuit Court lacked subject matter jurisdiction over the Petitioner at the time of the Petitioner's trial.

Ground Eight: Petitioner's indictment for murder (98-GS-06-180) was defective because it did not state the caliber of weapon that was allegedly used in the assault and death of Minh Chapman pursuant to S.C. Code Ann. § 17-19-30 (1985) thereby meaning that the Circuit Court lacked subject matter jurisdiction over the Petitioner at the time of the Petitioner's trial.

Ground Nine: Petitioner's indictment for murder (98-GS-06-180) was defective because it did not state the caliber of weapon that was allegedly used in the assault and death of Minh Chapman pursuant to S.C. Code Ann. § 17-19-30 (1985) thereby meaning that the Circuit Court lacked subject matter jurisdiction over the Petitioner at the time of the Petitioner's trial.

Ground Ten: Petitioner's indictment for murder (98-GS-06-180) was defective because it failed to include a special count for carrying a concealed weapon and where the jury was required to find a verdict on the special count as required by S.C.

Code Ann. § 17-19-40 (1985) thereby meaning that the Circuit Court lacked subject matter jurisdiction over the Petitioner at the time of the Petitioner's trial.

(Dkt. No. 57-1 at 3-4 of 54.)

The undersigned recommends granting summary judgment to Respondent on these claims. As explained above, federal habeas relief is only available when the alleged error was based on a "violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); see also Wright v. Angelone, 151 F.3d 151, 158 (4th Cir. 1998) (holding jurisdiction is a matter of state law); Epps v. Bazzle, Civ. A. No. 9:07-cv-3113-RBH, 2008 WL 2563151, at *2 (D.S.C. June 23, 2008) ("Petitioner's claim that the trial court lacked subject matter jurisdiction fails because circuit courts have subject matter jurisdiction to try criminal cases regardless of whether there is a valid indictment in any particular case." (emphasis added)); Dilworth v. Markle, 970 F. Supp. 2d 498, 507 (N.D. W. Va. 2013) ("[B]ecause there is no federal constitutional requirement that a state proceed on criminal charges by way of indictment, then there can be no constitutional challenge to the sufficiency of the indictment itself. What is required of a state indictment turns purely on an interpretation of state law . . . ."). L. Ground Twelve and Ground Thirteen

Although Ground Twelve and Ground Thirteen are not identical, the facts pertaining to the claims are similar. In Ground Twelve, Petitioner asserts as follows:

The trial court admitted the ballistics evidence where it was unclear as to the type of caliber bullet and the fact that the ballistics expert clearly indicated that he could not be sure that it came from the same gun admitted into evidence in the case.

(Dkt. No. 57-1 at 5 of 54.) In Ground Thirteen, Petitioner contends trial counsel was ineffective "for failing to hire an investigator or ballistics expert because the State could not identify the murder weapon." (Dkt. No. 57-1 at 5 of 54.)

As set forth above, Dr. Sexton testified that when he removed the bullet from the body, he believed it was a .22 caliber bullet, but he later found out the ballistics expert indicated it was a .25 caliber bullet. (R. at 151-55.) Mr. Paavel, the ballistics expert, testified the bullet removed from the victim was a .25 caliber bullet, but that it could have been confused with a .22 caliber bullet. (R. at 217.) Mr. Paavel testified that he was unable to conclusively determine whether the bullet removed from the victim was fired by the Lorson L25 pistol, though he indicated it could have been fired by that pistol. (R. at 214-16.) He was able to conclusively opine, however, that the fired cartridge recovered from the scene of the crime was fired by State's Exhibit 13D (the pistol). (Dkt. No. 17-49 at 3-4 of 4.)

To the extent Petitioner simply asserts the trial court erred in admitting evidence, it is not clear that this raises a claim cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67 (1991) ("In ruling that McGuire's due process rights were violated by the admission of the evidence, the Court of Appeals relied in part on its conclusion that the evidence was incorrectly admitted . . . pursuant to California law. Such an inquiry, however, is no part of a federal court's habeas review of a state conviction. We have stated many times that federal habeas corpus relief does not lie for errors of state law." (internal quotation marks and citations omitted)); see also Smith v. Moore, 137 F.3d 808, 821-22 (4th Cir. 1998) (refusing to entertain the habeas petitioner's contention that a jury instruction misstated South Carolina law); Monahan v. Burtt, Civ. A. No. 2:05-2201-RBH, 2006 WL 2796390, at *7 (D.S.C. Sept. 27, 2006) ("Reliance on a state statute, and the state constitution, as a basis for relief simply fails to present a question of federal law. To the extent the petitioner relies solely on state law, he has failed to present a matter cognizable under 28 U.S.C. § 2254.").

Petitioner has not explained how this claim comes within the reach of § 2254(a), and the undersigned discerns no violation of federal law in the admission of the pistol or bullet removed from the victim. A ballistics expert testified at trial that the bullet recovered from the victim was a .25 caliber bullet, and that the pistol admitted into evidence could have fired that bullet. While the ballistics expert could not conclusively say the bullet recovered from the victim was fired by the pistol, the expert conclusively opined that the shell casing-which was found at the scene of the crime-was from that very pistol. The undersigned discerns no basis for federal habeas relief herein. See Barbe v. McBride, 521 F.3d 443, 452 (4th Cir. 2008) ("It is only in circumstances impugning fundamental fairness or infringing specific constitutional protections that a federal question is presented.'" (quoting Spencer v. Murray, 5 F.3d 758, 762 (4th Cir. 1993))).²⁴ The undersigned therefore recommends granting summary judgment to Respondent as to Ground Twelve and Ground Thirteen. M. Ground Fifteen

24 To the extent Petitioner claims counsel was ineffective in failing to hire an investigator or ballistics expert, the undersigned notes that no such expert testified at Petitioner's PCR hearing. See Beaver v. Thompson, 93 F.3d 1186, 1195 (4th Cir. 1996) ("[A]n allegation of inadequate investigation does not warrant habeas relief absent a proffer of what favorable evidence or testimony would have been produced."); see also Bassette v. Thompson, 915 F.2d 932, 940-41 (4th Cir. 1990) (concluding the petitioner's claim that other evidence should have been presented during the sentencing phase of his trial failed in "the absence of a proffer of testimony from a witness or witnesses he claims his attorney should have called," stating, "He claims that his counsel conducted an inadequate investigation to discover persons who would testify in his favor, but he does not advise us of what an adequate investigation would have revealed or what these witnesses might have said, if they had been called to testify.").

In Ground Fifteen, Petitioner asserts the "state court unreasonably applied federal law when it ruled that Petitioner's cellmates were not government agents at the time Petitioner allegedly made incriminating statements to them." (Dkt. No. 57-1 at 4 of 54.) According to Petitioner, "the trial court erred when it admitted the testimony of David Staley and Aurelien Vigier who were both jailhouse informants who had initiated contact with the Petitioner after being placed in Petitioner's jail cell and who were acting as government agents at the time the alleged statements were made by the Petitioner. . . ." (Dkt. No. 57-1 at 4 of 54.)

As set forth above in examining Ground Three, Petitioner's claim that Vigier was an agent of the State does not entitle Petitioner to federal habeas relief. To the extent Petitioner makes the same claim as to Staley, that claim is defaulted, as it was not presented on direct appeal. Even so, Petitioner is not entitled to relief. During the Massiah hearing, Staley testified that during the time he was speaking with Petitioner, he was not speaking to law enforcement at all. (R. at 186.) Staley testified that law enforcement had not asked him to do anything, had not promised him anything, and had not offered him a deal. (R. at 186-87.) Staley testified that the only person who had spoken to him about the death of Ms. Chapman, the victim, was the Petitioner. (R. at 187.) He testified that after Petitioner made statements to him, he called law enforcement, and after that, he was not instructed to do anything else. (R. at 187-89, 197.) Staley testified that after he spoke with law enforcement, law enforcement did not ask him to "go back and listen anymore" or "ask [him] to go ask [Petitioner] any questions." (R. at 198.) This evidence is a sufficient factual basis for the state court to conclude that Staley was not a government agent. The undersigned recommends granting summary judgment to Respondent as to Ground Fifteen. See Massiah v. United States, 377 U.S. 201 (1964); see also Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986); United States v. McFadden, 187 F. App'x 290, 294 (4th Cir. 2006). N. Ground Sixteen

In Ground Sixteen, Petitioner asserts the "trial court unreasonably applied federal law when it denied the Petitioner's Motion to Quash Maurice Benning's testimony." (Dkt. No. 57-1 at 5 of 54.) Petitioner did not present this claim to the appellate courts in South Carolina; it is therefore defaulted. See Matthews v. Evatt, 105 F.3d 907, 911-17 (4th Cir. 1997), abrogated on other grounds by Miller-El v. Dretke, 545 U.S. 231 (2005); see also Joseph v. Angelone, 184 F.3d 320, 328 (4th Cir. 1999) ("In order to avoid procedural default, the 'substance' of [the petitioner's] claim must have been 'fairly presented' in state court." (quoting Townes v. Murray, 68 F.3d 840, 846 (4th Cir. 1995))); Drayton v. Evatt, 312 S.C. 4, 9, 430 S.E.2d 517, 520 (1993) ("Issues that could have been raised at trial or on direct appeal cannot be asserted in an application for post-conviction relief absent a claim of ineffective assistance of counsel."). Petitioner claims that the "Solicitor knew that Benning's testimony was suspect due to the results of the various polygraph examinations." (Dkt. No. 57-1 at 40 of 54.) Petitioner suggests the prosecutor knowingly presented false testimony; Petitioner states,

The Solicitor had some knowledge that Maurice Benning may offer false testimony in order to exonerate himself and implicate the Petitioner in this case. The alleged gun was found in the home of Maurice Benning who had absconded from the jurisdiction. Benning was drunk at the tie [sic] he gave at least one of his statements against the Petitioner and he failed several polygraph tests on all levels. Benning was promised the dismissal of burglary charges if he testified against the Petitioner who had no prior criminal record whatsoever. Benning was jailed until he testified against the Petitioner to make sure that he testified against the Petitioner. All of these factors should have been indicators to the trial judge that Benning's testimony was perjured. Therefore, the trial judge unreasonably applied federal law when he admitted the

perjured testimony of Maurice Benning at Petitioner's second trial. The decision to admit such perjured testimony prejudiced the Petitioner.

(Dkt. No. 57-1 at 41 of 54.)

As noted above, "it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment." Napue v. Illinois, 360 U.S. 264, 269 (1959); see also Badsen v. Lee, 290 F.3d 602, 614 (4th Cir. 2002). To meet his burden of proof on such a claim, a petitioner must show that (1) perjured testimony was presented; (2) the prosecution knew the evidence was false; and (3) there is "any reasonable likelihood that the false testimony could have affected the judgment of the jury." Boyd v. French, 147 F.3d 319, 330 (4th Cir. 1998) (citations and internal quotations omitted).

Before trial started, Petitioner moved to exclude Benning's testimony, arguing that Benning "is untruthful and . . . will not be a truthful witness on the stand." (R. at 42.) Counsel Sanders referenced the results of a poloygraph test and asserted, inter alia, that Benning was untruthful in his response to the question about whether he "lie[d] about giving [Petitioner] the gun that was used to shoot" the victim. (R. at 43-48.) The trial judge rejected Petitioner's argument and denied his motion to exclude Benning's testimony. (R. at 48.)

Contrary to Petitioner's assertions, the fact that Benning "failed" a polygraph test does not require Benning's testimony to be suppressed. See King v. Trippett, 192 F.3d 517, 522 (6th Cir. 1999) ("Assuming for the moment that Schaefer's testimony was material, the fact that Schaefer 'failed' two polygraph tests does not prove that Schaefer testified falsely at petitioner's trial. The trial court's refusal to allow Schaefer's polygraph results to usurp the role of the jury in assessing Schaefer's credibility was, and still is, entirely consistent with clearly established Supreme Court precedent."); United States v. Jordan, 150 F.3d 895, 900 (8th Cir. 1998) ("The Court finds that Jordan has failed to prove that the government used false testimony. Jordan argues that Henderson's testimony was false because it differed from a prior statement that he had given to the police and because it was contradictory. A challenge to evidence through another witness or prior inconsistent statements is insufficient to establish prosecutorial use of false testimony." (internal quotation marks and citation omitted)); Bates v. Warren, Civ. A. No. 05-CV-72772-DT, 2010 WL 1286206, at *12 (E.D. Mich. Mar. 30, 2010) ("The fact that Beasley failed a polygraph examination during the police investigation does not mean that he gave false testimony at trial or that the prosecution knowingly presented false testimony."). The undersigned recommends granting summary judgment to Respondent as to this claim. O. Ground Seventeen

Petitioner asserts in Ground Seventeen that Attorney Savitz, Petitioner's counsel on direct appeal, "provided ineffective assistance of counsel by failing to address all of the issues requested by the Petitioner in his appeal to the S.C. Court of Appeals and S.C. Supreme Court, despite being requested to do so by the Petitioner." (Dkt. No. 57-1 at 41 of 54.) Petitioner contends the "refusal constituted 'ineffective assistance of counsel'" when Savitz "raised the same or similar multi-issues in the appeals of the Petitioner's co-defendants and prevailed on those issues which resulted in the exoneration of Petitioner's co-defendants." (Dkt. No. 57-1 at 41 of 54.)

This claim of ineffective assistance of appellate counsel is procedurally defaulted, as it was not raised on appeal from the denial of his application for post-conviction relief, (see Dkt. No. 17-42 at 3 of 51). See Longworth v. Ozmint, 377 F.3d 437, 447-48 (4th Cir. 2004) (concluding that certain grounds are "procedurally defaulted as a result of [the petitioner's] failure to raise them in his petition for certiorari to the South Carolina Supreme Court for review of the State PCR Court's decision"); see also Johnson v. Warden of Broad River Corr. Inst., No. 12-7270, 2013 WL 856731 (4th Cir. Mar. 8, 2013) ("[B]ecause Johnson alleges only ineffective assistance of appellate postconviction counsel, his allegations do not constitute cause for his failure to exhaust under the limited exception in Martinez. Instead, his claims fall under the general Coleman rule that ineffective assistance of postconviction counsel cannot constitute cause for procedural default."). The undersigned therefore recommends granting summary judgment to Respondent as to Ground Seventeen. P. Ground Seventeen(B) through Ground Twenty-Five

In Ground Seventeen (B) through Ground Twenty-Five, Petitioner alleges that Attorney Jane Moody was constitutionally ineffective for a variety of reasons. (See Dkt. No. 57-1 at 5 of 54.) The allegations are as follows:

Ground Seventeen(B):²⁵ Petitioner asserts ineffective assistance of counsel as it pertains to the appointment of Attorney Jane Moody to his case when she failed to prepare Petitioner's case for PCR Review, did not maintain proper notes and then subsequently failed to file an appeal on behalf of the Petitioner from the decision of the PCR Court dismissing Petitioner's PCR Application.

Ground Eighteen: PCR Attorney, Jane N. Moody, ineffective as counsel for the Petitioner when she failed to notify trial counsel, Brenda K. Sanders of the scheduling of the PCR hearing and when she failed to call Brenda K. Sanders to testify at the PCR hearing for the Petitioner.

Ground Nineteen: PCR Attorney, Jane Moody, ineffective as counsel for the Petitioner when she failed to communicate with the former attorneys for the Petitioner after being requested to do so on several occasions.

Ground Twenty: PCR Attorney, Jane Moody, ineffective as counsel for the Petitioner when she failed to . . . file a timely notice of appeal within 30 days of the PCR Court's decision which was rendered on October 4, 2007.

Ground Twenty-One: PCR Attorney, Jane Moody, ineffective as counsel for the Petitioner when she failed to notify trial counsel, Brenda K. Sanders, and the Petitioner of the scheduling of the PCR hearing and when she failed to call Brenda K. Sanders to testify at the PCR hearing for the Petitioner.

Ground Twenty-Two: PCR Attorney, Jane Moody, ineffective as counsel when she failed to communicate with Tunzy A. Sanders about his PCR Petition and PCR hearing.

Ground Twenty-Three: PCR Attorney, Jane N. Moody, ineffective as counsel for the Petitioner, Tunzy A. Sanders, when she failed to notify the Petitioner of the issuance of the Order denying his PCR Application until nine months after the Order had been entered by the Barnwell County Circuit Judge Baxter [sic] tender a ruling on each issue brought in the Petitioner's PCR Application for Relief despite the fact that the PCR Attorney, Jane N. Moody, was specifically requested to do so on behalf of the Petitioner, Tunzy A. Sanders.

Ground Twenty-Four: PCR Attorney, Jane N. Moody, ineffective as counsel for the Petitioner, Tunzy A. Sanders, when she failed to adequately and individually address all of the issues outlined in the PCR Application for the Petitioner, Tunzy A. Sanders, when she specifically requested to do so on behalf of the Petitioner.

Ground Twenty-Five: PCR Attorney, Jane N. Moody, ineffective as counsel for the Petitioner, Tunzy A. Sanders, when she failed to file a post-hearing motion with the Barnwell County Common Pleas Circuit Court requesting that Judge Baxter tender a ruling on each issue brought in the Petitioner's PCR Application for Relief despite the fact that the PCR Attorney, Jane N. Moody, was specifically requested to do so on behalf of the Petitioner, Tunzy A. Sanders.

(Dkt. No. 57-1 at 5-6, 44-47 of 54.)

25 Because Ground Seventeen appears twice, the undersigned has renumbered the latter Ground Seventeen as Ground Seventeen(B).

The undersigned recommends granting summary judgment to Respondent on these grounds for review. To the extent Petitioner attempts to raise free-standing claims in the instant habeas action that his PCR counsel was ineffective, that claim is not cognizable herein. See 28 U.S.C. § 2254(i) ("The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254."). In addition, errors in state PCR proceedings cannot serve as the basis for federal habeas corpus relief. See Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir.1988) (holding "claims of error occurring in a state post-conviction proceeding cannot serve as a basis for federal habeas corpus relief"). In any event, however ineffective Petitioner contends Ms. Moody was is of no moment, as on March 23, 2012, the Supreme Court of South Carolina vacated the order on Petitioner's first PCR application, remanded the matter for a de novo hearing, and denied the State's request to limit what could be litigated at the de novo hearing. (Dkt. No. 17-32 at 1-2 of 2.) Petitioner had a full (second) evidentiary hearing on his application for PCR (which was supplemented by Attorney Shurling). The undersigned recommends granting summary judgment to Respondent as to Petitioner's claims that Attorney Moody was ineffective. Q. Ground Twenty-Six

Petitioner contends in Ground Twenty-Six that PCR counsel Shurling was ineffective "when she failed to advise Petitioner's sister, Brenda K. Sanders, that she would include claims of ineffective assistance of counsel and mental unfitness in the Petitioner's PCR Application against Petitioner's sister which constituted a conflict of interest, after accepting . . . $24,000 from Petitioner's sister to represent the Petitioner." (Dkt. No. 57-1 at 47 of 54.) As explained above, this claim-which sets forth an allegation that PCR counsel was ineffective-is not cognizable in the instant habeas action. See 28 U.S.C. § 2254(i) ("The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254."). Moreover, given that Ms. Shurling represented Petitioner-not Counsel Sanders-it is unclear how Ms. Shurling's failure to advise Counsel Sanders of anything constituted ineffective assistance of counsel. See Rule 1.8(f), RPC, Rule 407, SCACR; see also Rule 1.7 cmt. 11, Rule 407, SCACR. Cf. Sentry Select Ins. Co. v. Maybank Law Firm, LLC, No. 2016-001351, 2018 WL 2423694, at *1 (S.C. May 30, 2018) ("When an insurer hires an attorney to represent its insured, an attorney-client relationship arises between the attorney and the insured—his client. Pursuant to that relationship, the attorney owes the client—not the insurer—a fiduciary duty." (citation omitted)). The undersigned therefore recommends granting summary judgment to Respondent as to Petitioner's claim that Ms. Shurling was ineffective. R. Ground Twenty-Seven

Ground Twenty-Seven does not appear to be an independent ground for relief; instead, in Ground Twenty-Seven, Petitioner "asserts that this Honorable Court Should Review All of His Claims That Were Not Raised in State Court for The Reason That the Petitioner Has Demonstrated Cause and Actual Prejudice." (Dkt. No. 57-1 at 51 of 54.) The undersigned has examined cause and prejudice where applicable above. Accordingly, the undersigned recommends granting summary judgment to Respondent as to this ground for relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."); see also 28 U.S.C. § 2254(a); Martinez v. Ryan, 566 U.S. 1, 10 (2012) ("A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law." (citation omitted)).

CONCLUSION

It is RECOMMENDED, for the foregoing reasons, that Petitioner's Motion to Amend (Dkt. No. 15) be GRANTED, and that the Honorable District Judge consider the additional claims set forth in Petitioner's Response in Opposition to Respondent's Motion for Summary Judgment and Dismissal of Habeas Corpus Petition. It is further RECOMMENDED that Respondent's Motion for Summary Judgment (Dkt. No. 18) be GRANTED; that the Petitioner's habeas petition be DISMISSED WITH PREJUDICE; and that a certificate of appealability be denied.²⁶

26 Title 28, Section 2253 provides in relevant part,

(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.

28 U.S.C. § 2253. A prisoner satisfies this standard by demonstrating that reasonable jurists would find this court's assessment of his constitutional claims debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In the case sub judice, the legal standard for a certificate of appealability has not been met. The undersigned therefore recommends that a certificate of appealability be denied.

IT IS SO RECOMMENDED.

/s/_________

MARY GORDON BAKER

UNITED STATES MAGISTRATE JUDGE July 12, 2018
Charleston, South Carolina

The parties' attention is directed to the important notice on the next page.

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 (4^th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).

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

Robin L. Blume, Clerk

United States District Court

Post Office Box 835

Charleston, South Carolina 29402

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).