Opinion
C/A No.: 6:18-3230-BHH-KFM
07-29-2019
Andrew Brent Scott, Petitioner, v. Warden Broad River Correctional Institution, Respondent.
REPORT OF MAGISTRATE JUDGE
The petitioner, a state prisoner proceeding pro se and in forma pauperis, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the District Court.
BACKGROUND
The petitioner is currently incarcerated at Broad River Correctional Institution in the South Carolina Department of Corrections ("SCDC") (doc. 1 at 1). The petitioner was indicted by the Spartanburg County Grand Jury in November 2010 for assault and battery 1st degree (2010-GS-42-6835), kidnapping (2010-GS-42-6836), and armed robbery and possession of a weapon during the commission of a violent crime (2010-GS-42-6837) (app. 699-704). He was represented by Beverly Jones ("trial counsel") on these charges (app. 1). Beginning April 24, 2012, the petitioner proceeded to jury trial before the Honorable Roger L. Couch (app. 1-522). The jury found the petitioner guilty as charged (app. 511-12). Judge Couch sentenced the petitioner (with credit for time served) to 30 years of imprisonment for kidnapping, 30 years of imprisonment for armed robbery (to run concurrent with the kidnapping sentence), ten years of imprisonment for assault and battery (to run concurrent to the other sentences), and five years of imprisonment for possession of a weapon in the commission of a violent crime (to run consecutive to the other sentences) (app. 520-21).
Underlying Case Facts
The petitioner was accused of robbing The Money Tree in downtown Chesnee and of assaulting and kidnapping the clerk, Bridgette Jackson (app. 699-704). Shortly after the robbery, the clerk was able to identify the petitioner from a photo lineup (app. 171-74). Prior to trial, the trial court held a hearing pursuant to Neil v. Biggers, 409 U.S. 188 (1972) regarding the suggestiveness of the lineup procedure (app. 34-92). The State called Ms. Jackson and Officer Stephanie Lovell at the hearing (id.). Ms. Jackson testified that she was working at the Money Tree on September 28, 2010 (app. 38-39). During her break, she noticed a man wearing all black riding a bicycle (app. 39-40). After leaving the bicycle in front of the store, the individual entered the store, but she lost track of the man inside the store (app. 40-42). Ms. Jackson testified that she next saw the man trying to come through the "employees only" door with a knife in his hand (app. 42-43). Ms. Jackson testified that the assailant was wearing a hat and sunglasses (app. 44). After an altercation during which the assailant took money from the store's safe, she was able to escape to the nearby city hall building (app. 45-49). Ms. Jackson testified that she was able to observe the assailant for at least a minute (app. 51). She testified that she was later taken to Mary Black Hospital to receive treatment for her injuries (app. 52-53). She indicated that while she was being treated at Mary Black Hospital, Officer Lovell brought in a photo lineup for her to look at (app. 53-58). After looking at the lineup, she picked picture number 5, the petitioner, based upon the cheek and nose structure (id.). Ms. Jackson further testified that she originally signed her name in the wrong spot on the form, but that she and Officer Lovell marked through the incorrect signature and corrected it (app. 57-58). Ms. Jackson then made an in-courtroom identification of the petitioner (app. 58-59).
On cross-examination, Ms. Jackson testified that a co-worker, Regina Jones, had informed her that a "Mr. Scott," who used to be a Money Tree employee, had been telling people he was going to rob the store (app. 72). Ms. Jackson also testified that after the robbery (but before completing the lineup), Ms. Jones came to city hall and said, "I can't believe he did this," referencing Mr. Scott, the petitioner (app. 71). Ms. Jackson further testified that she had spoken to "Mr. Scott" on the phone while he worked at Money Tree, but she had never met him in person (app. 69-70).
Officer Lovell testified at the hearing that she obtained the photo lineup from the Spartanburg County Detention Center (and that it was ordered by Sgt. Kip Teal, the investigating officer) (app. 78-79, 85-86). Officer Lovell indicated that she met Ms. Jackson at Mary Black Hospital and handed her the photo lineup to review (app. 79-83). Officer Lovell also testified that the petitioner's name was written on the lineup after Ms. Jackson made her choice (app. 83). In light of the proffered testimony, trial counsel argued that the suggestion by Ms. Jones prior to Ms. Jackson's review of the lineup could have impacted Ms. Jackson's identification of the petitioner (app. 89-90). Thus, trial counsel argued the photo lineup was suggestive and should not be admitted (app. 90). The solicitor argued that the suggestion by Ms. Jones had no bearing on the identification because Ms. Jackson had never met "Mr. Scott," and the lineup contained no names until after Ms. Jackson had picked "number 5" (app. 90-91). Judge Couch allowed the identification to go forward, noting that the mention of a name to Ms. Jackson, absent any description of that individual or photograph, would not have affected her identification of someone who was unnamed and not identified by name at the time of her identification (app. 91-92). During the trial, the photographic lineup was admitted into evidence, and Ms. Jackson identified the petitioner in court (app. 170-77). At the end of the trial, the petitioner was convicted as charged (app. 511-12).
Direct Appeal
A timely notice of appeal and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), were filed on the petitioner's behalf (doc. 14-1). The Anders brief raised the following issue on appeal:
1. Whether the trial court erred in permitting an in-court identification of appellant and a photographic lineup to be admitted into evidence when the witness's identification had been corrupted by her being told, prior to viewing a photographic lineup, that the police suspected appellant was the perpetrator?(Doc. 14-1 at 4).
The South Carolina Court of Appeals dismissed the appeal, and the remittitur was dated December 30, 2013 (doc. 14-2).
PCR
The petitioner filed an application for post-conviction relief ("PCR") on January 24, 2014, alleging the following grounds for relief:
1. Ineffective assistance of counsel, in that;
a. Counsel refused to subpoena the victim's co-worker to address identification issues,
b. Counsel failed to properly interview witnesses and investigate the crime scene,
c. Counsel failed to make a motion regarding the illegal search and seizure,
d. Counsel may have had a conflict as a result of representing the arresting officer's wife in another criminal matter;
2. Illegal search and seizure, in that;
a. Applicant has never seen or received an arrest warrant or search warrant for his home;
3. Identification, in that;
(App. 523-34). The State filed its return on August 20, 2014 (app. 535-38).a. Victim's testimony regarding identification should not have been allowed.
The Honorable R. Ferrell Cothran, Jr., held an evidentiary hearing into the matter on January 13, 2016 (app. 540-680). The petitioner was present at the hearing and represented by Leah B. Moody (app. 540). Assistant Attorney General Alicia A. Olive represented the State (id.). Prior to the beginning of the hearing, the petitioner sought a continuance, arguing that PCR counsel was not communicating with him and that none of his witnesses were available/at the hearing (app. 543-57). The petitioner then testified on his own behalf (app. 559-624). Ms. Virdia Copeland, identified by the petitioner as his wife, also testified (app. 625-38). The PCR court then heard testimony from trial counsel (app. 642-79). After hearing the testimony, Judge Cothran denied PCR relief, noting that the petitioner failed to demonstrate deficient performance of trial counsel or resulting prejudice, that his illegal search and seizure and identification grounds were direct appeal issues, and that the petitioner failed to demonstrate that trial counsel represented conflicting interests (app. 681-98).
PCR Appeal
The petitioner, who was represented by Appellate Defender Wanda H. Carter, filed a Johnson petition for writ of certiorari in the South Carolina Supreme Court (docs. 14-5; 14-6; 14-7). The petition raised a single issue for consideration and requested that Wanda H. Carter be relieved as counsel:
See Johnson v. State, 364 S.E.2d 201 (1988) (setting forth the procedures for counsel to follow when filing meritless appeals in state PCR cases pursuant to Anders v. California, 386 U.S. 738 (1967)).
Trial counsel erred in failing to interview store manager Regina Jones as a potential witness prior to trial and in failing to call her as a witness in order to present a consent to kidnapping defense on petitioner's behalf at trial.(Doc. 14-7 at 3). On May 1, 2017, the petitioner filed a pro se Johnson response brief in the South Carolina Supreme Court (doc. 21-1). In the pro se Johnson response brief, the petitioner noted the following matters for appeal:
1) The trial judge erred in violating my due process of the 5th Amendment by willfully permitting the admission of the rehearsed identification testimony and erroneous documents obtained from non-credible [witnesses], which lead to irreparable mistaken identification due to overly suggestive procedures.(Doc. 21-1). The Supreme Court of South Carolina subsequently transferred jurisdiction of the petition to the South Carolina Court of Appeals (doc. 14-8). The Court of Appeals dismissed the petition by written order filed on October 16, 2018 (id.). The remittitur was issued on November 9, 2018, and filed by the Spartanburg County Clerk of Court on November 13, 2018 (doc. 14-9).
2) [Trial counsel] failed to bring to the court's attention the validity of the consent to search procedure, its accompanied legal document. Trial counsel failed to bring to the court's attention, the 4th Amendment rights and protection of all of the occupants of the home to be searched. Trial counsel failed to bring to the court's attention of the consenter's right to refuse consent (Miranda Rights), the consenter's age, level of education, state of mind, and her knowledge of law. Trial counsel failed to bring to the court's attention probable cause for the actions of the police department. Trial counsel failed to make a motion to have all charges dropped and/or dismissed for the illegal actions leading to arrest.
3) My trial counsel, [ ] failed to bring to the court's attention, the illegal and unusual document, [supposedly signed] by Magistrate Eber C. Gowan and Sgt. Kip Teal, Chesnee Police, purporting to be an affidavit for DNA. Trial counsel failed to bring to the court's attention that there was not a court order nor a search warrant to accompan[y] the affidavit. Trial counsel failed to bring to the court's attention the results from that analysis that was orchestrated on September 29, 2010. Most importantly, trial counsel failed to bring to the court's attention why [it was] necessary to order another DNA analysis again on March 23, 2012.
The petitioner attached what he called a "first draft" of his pro se Johnson response brief with his response in opposition to the respondent's motion for summary judgment (doc. 19-2); however, the undersigned finds that the copy on file with the South Carolina Supreme Court is the version provided by the respondent with its reply brief (doc. 21-1). As such, references to the petitioner's pro se Johnson response brief are to the version that was filed with the South Carolina Supreme Court for consideration—as provided by the respondent.
Federal Petition
On November 30, 2018, the petitioner's § 2254 petition was entered on the docket asserting the following grounds for relief:
Ground One: Identification(Doc. 1 at 5-10).
Supporting Facts: The identification process was flawed and suggestive in that the victim was told two weeks before the robbery that a guy named Scott was going to rob the store. On the day of the robbery, the victim and co-worker reminded her about their previous conversation.
Ground Two: Illegal search and seizure
Supporting Facts: There was no arrest warrant, nor a search warrant at the time of entry and arrest. Ms. Virdia Copeland, my fiancé, was forced, coerced, and threatened by the authority of the police during a stressful and vulnerable time. She was 72 yrs. old and her mother (age 96) was in ICU. Ms. Copeland refused twice to give them her house keys.
Ground Three: Illegal and falsified documents
Supporting Facts: My trial attorney, Ms. Beverly Jones, never brought to the court's attention that the arrest warrant was dated and obtained on the day after the arrest. The address for execution on the arrest warrant was addressed to and for my parents' house in Richland county. The photo line-up affidavit has someone else's name on it. That is not my name.
Ground Four: Ineffective assistance of counsel
Supporting Facts: My trial attorney, Ms. Beverly Jones, was ineffective in representing me and my case in a professional and diligent manner. Ms. Jones failed to interview and subpoena the victim's co-workers and supervisor for testimony concerning knowledge beforehand, about a robbery that was going to take place.
On February 22, 2019, the respondent filed a return and memorandum (doc. 14) as well as a motion for summary judgment (doc. 15). On February 25, 2019, by order filed pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (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 (doc. 16). On March 25, 2019, the petitioner filed a response in opposition (doc. 19), to which the respondent replied on March 28, 2019 (doc. 21). On June 3, 2019, the petitioner filed an additional attachment to his response (doc. 26).
APPLICABLE LAW AND ANALYSIS
Summary Judgment Standard
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). As to the first of these determinations, a fact is deemed "material" if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id.
Section 2254 Standard
Because 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 (1997). Under the AEDPA, federal courts may not grant habeas corpus relief on any claim that was adjudicated on the merits in state court 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; or28 U.S.C. § 2254(d). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411 (2000). Moreover, federal habeas review requires presuming state court factual determinations to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Exhaustion and Timeliness
The respondent acknowledges that the petitioner has technically exhausted his state court remedies and that the petition is timely (doc. 14 at 7-9).
Procedural Default
The respondent asserts that Grounds 2, 3, and a portion of Ground 4 (ineffective assistance of counsel based upon failure to interview or present the petitioner's other co-workers as witnesses to present a consent to kidnapping defense) are procedurally barred (doc. 14 at 9-11). The petitioner's response in opposition asserts that his grounds for relief have not been procedurally defaulted, because he included them in his pro se Johnson response brief (doc. 19 at 17, 18-19).
Procedural default, sometimes referred to as procedural bar or procedural bypass, is the doctrine applied when a petitioner seeks habeas corpus relief on an issue after he has failed to raise that issue at the appropriate time in state courts and has no further means of bringing that issue before the state courts. Coleman v. Thompson, 501 U.S. 722, 785 n.1 (1991). In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Id.; see Smith v. Murray, 477 U.S. 527, 533 (1986).
Default can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion. If a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the Supreme Court has explained:
[State procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984).
"[A] federal court ordinarily may not consider claims that a petitioner failed to raise at the time and in the manner required under state law unless 'the prisoner demonstrates cause for the default and prejudice from the asserted error.'" Teleguz v. Pearson, 689 F.3d 322, 327 (4th Cir. 2012) (quoting House v. Bell, 547 U.S. 518, 536 (2006)). To show cause, a petitioner must "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule," Murray v. Carrier, 477 U.S. 478, 488 (1986), or that "the factual or legal basis for the claim was not reasonably available to the claimant at the time of the state proceeding," Roach v. Angelone, 176 F.3d 210, 222 (4th Cir. 1999). Alternatively, the petitioner may "prove that failure to consider the claims will result in a fundamental miscarriage of justice." McCarver v. Lee, 221 F.3d 583, 588 (4th Cir. 2000) (citing Coleman, 501 U.S. at 750). A fundamental miscarriage of justice equates to the conviction of someone who is actually innocent. Murray, 477 U.S. at 496 (noting that "where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default"). However, "actual innocence" requires "factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotation marks and citation omitted).
Procedural default is an affirmative defense that is waived if not raised by the respondent. Gray v. Netherland, 518 U.S. 152, 165-66 (1996). If the defense is raised, it is the petitioner's burden to then show cause and prejudice or actual innocence; if not raised by the petitioner, the court need not consider the defaulted claim. Kornahrens v. Evatt, 66 F.3d 1350, 1359 (4th Cir. 1995). The Fourth Circuit Court of Appeals has observed that although it is always tempting to discuss the merits as an alternative reason for a conclusion, once a court finds an issue to be procedurally barred, all discussion that follows is only dicta. Karsten v. Kaiser Found. Health Plan of the Mid-Atl. States, Inc., 36 F.3d 8, 11 (4th Cir. 1993).
As noted, the respondent argues that Grounds 2, 3, and a portion of Ground 4 have been procedurally defaulted (doc. 14 at 10-11). The respondent concedes that Grounds 2 and 3 were included in the petitioner's PCR and addressed in the PCR court's order of dismissal (id. at 10). The respondent argues, however, that they were not argued before the South Carolina Supreme Court (id. at 10-11). The undersigned disagrees. With respect to Ground 2, the petitioner's pro se Johnson response brief addresses both a free standing search and seizure claim and an ineffective assistance of counsel claim (based upon failure to object to the unlawful search and seizure) (see doc. 21-1 at 40-48). With respect to Ground 3, in construing the record in the light most favorable to the petitioner—including the petitioner's pro se Johnson response brief, the matter was adequately raised to the South Carolina Supreme Court to allow review by this court (see generally doc. 21-1). In Ground 4 of his petition, the petitioner asserts ineffective assistance of counsel for (1) failing to conduct an adequate investigation, (2) failing to interview and subpoena Ms. Jackson's supervisor, and (3) failing to interview and subpoena Ms. Jackson's co-workers. The respondent argues that the petitioner has procedurally defaulted Ground 4.3 (doc. 14 at 10). Nevertheless, the undersigned finds that taking the record in the light most favorable to the petitioner, the entirety of Ground 4 was properly asserted at both the PCR and PCR appeal stages of state court litigation. As such, the undersigned will address the petitioner's grounds for relief on the merits.
As noted by the respondent, and addressed below, the petitioner's response in opposition to the respondent's motion for summary judgment appears to address a different Ground 3 for relief—the one raised in his pro se Johnson response brief, not the one raised in the instant petition. See infra, pp. 18-21.
Merits Review
Ground 1: Identification
In Ground 1 of his petition, the petitioner asserts that the identification of him by Ms. Jackson was impermissibly flawed and suggestive (doc. 1 at 5, 16-17). As conceded by the respondent, this ground for relief has been properly asserted at the PCR and PCR appeal stages of state court litigation. This ground for relief is thus properly preserved, cognizable, and ripe for consideration by this court.
In Neil v. Biggers, the Supreme Court provided five factors for courts to consider in evaluating the reliability of identifications: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; (5) and the length of time between the crime and the confrontation. Biggers, 409 U.S. at 199. However, the eyewitness identification need be "suppressed only if the procedures used to obtain the identification were so unnecessarily suggestive and conducive to irreparable mistaken identification that [the petitioner] was denied due process of law." Fowler v. Joyner, 753 F.3d 446, 453 (4th Cir. 2014) (internal quotation marks omitted) (partially quoting Biggers, 409 U.S. at 196). Unless there is "a very substantial likelihood of irreparable misidentification, . . . such evidence is for the jury to weigh." Id. (quoting Manson v. Brathwaite, 432 U.S. 98, 116 (1977)). After hearing testimony pursuant to Biggers, the trial court found as follows:
After reviewing the testimony, it's my finding that the witness had ample opportunity to view the person who perpetrated the act at the time of the crime. I also find that obviously she gave her full attention to that person, and, therefore, I find that she had a high degree of attention to the situation. It does appear that she was able to identify numerous features on the perpetrator's face and gave an accurate description of those features. She appears to have a high level of certainty at the time that she identified the individual in the lineup.(App. 91-92). The petitioner presented this claim on direct appeal, and the South Carolina Court of Appeals dismissed his appeal (docs. 14-1; 14-2). He raised the issue in his PCR as an ineffective assistance of counsel claim (app.523-29). In rejecting that claim, the PCR court held:
There was not an extended period of time between the time of the event and the, the lineup showing. So, I don't find that that would of affected her recollection.
I also do not find that the fact that a name may have been mentioned to her previously without any description of that individual or photograph would have, in anyway, affected her identification of someone who was unnamed and not identified by name at the time of her identification. Therefore, I will allow the identification to go forward.
[The petitioner] alleged the victim's testimony regarding identification should not have been allowed. [The petitioner] presented this claim as an allegation of ineffective assistance of Counsel at the PCR hearing. [The petitioner] has failed to produce any evidence in support of this allegation. [Trial c]ounsel testified and the record reflects that [trial c]ounsel challenged the pre-trial identification of [the petitioner] by requesting a pretrial hearing pursuant to Neil v. Biggers, 409 U.S. 188. In that hearing, [trial c]ounsel argued that the suggestion by the victim's co-worker prior to the line-up that [the petitioner] was the assailant could have impacted the victim's identification of [the petitioner]. The trial judge allowed the identification to go forward and stated he did not find that the fact a name might have been mentioned to the victim, without any description of that individual or photograph, would have in anyway affected her identification of someone who was unnamed and not identified by name at the time of her identification. [The petitioner] again challenged the identification in his direct appeal. The Court of Appeals dismissed his appeal. This Court finds that [trial c]ounsel adequately raised and challenged the issue of victim's identification of [the petitioner]. This Court further finds [that the petitioner] has failed to demonstrate prejudice. The clothing that the victim wore at the time of the robbery, as well as a tablecloth taken from a window display in the store, was collected and tested for DNA evidence. A buccal swab was obtained from [the petitioner] for comparison. The State presented a DNA analyst at trial who testified that [the petitioner's] DNA matched several items of the victim's clothing. Therefore, this Court finds [the petitioner] failed to show that there was a reasonable probability that but for [trial c]ounsel's alleged error, the result of the trial would have been different.(App. 690-91).
Accordingly, this Court finds [the petitioner] has failed to demonstrate either deficiency or prejudice with respect to this allegation. Therefore, this allegation is denied and dismissed.
Habeas review of the petitioner's identification claim herein is not simply a new review of the merits; rather, habeas review is centered upon whether the state court decision was reasonable. See 28 U.S.C. § 2254(d). A state court decision is unreasonable only "if it is so erroneous that 'there is no possibility fairminded jurists could disagree that the state court's decision conflicts with"' Supreme Court precedent. Nevada v. Jackson, 569 U.S. 505, 508-09 (2013) (per curiam) (partially quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)). Additionally, factual issues determined by the State court are presumed correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Here, the petitioner asserts that the trial court erred in allowing the photo lineup identification into evidence because it was overly suggestive (doc. 19 at 3-8). Specifically, the petitioner asserts that the photo lineup was suggestive because he was the only individual in a white shirt, Ms. Jackson's co-worker told Ms. Jackson that a "Mr. Scott" was her assailant, his picture for the lineup was taken after he was assaulted by police officers, Ms. Jackson never gave a detailed description of her assailant, and Ms. Jackson did not have the opportunity to observe her assailant for identification purposes because he was wearing a hat and sunglasses (id.). Liberally construed, these arguments could also attack the reliability of Ms. Jackson's identification of the petitioner (see id.). Nevertheless, as noted above, suppression of in-court identification testimony is not merited unless, based on the totality of the circumstances, the pre-trial identification presented a substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 384 (1968); Fowler, 753 F.3d at 453.
The undersigned finds that the trial court's decision to admit the photo lineup identification by Ms. Jackson did not contradict clearly established federal law. As noted by the respondent, the record indicates that the trial judge allowed the identification after conducting a Biggers hearing, which included testimony from Ms. Jackson and Officer Lovell (app. 36-92). The petitioner was represented by trial counsel during the hearing, and trial counsel was not ineffective in challenging the identification, as confirmed by the PCR court (app. 690-91). The record also includes testimony from Ms. Jackson that she had ample time to observe her assailant (app. 46-48, 51, 58), had never seen her assailant prior to the date in question (app. 69-70, 73), observed unique facial features that assisted her identification (app. 51, 56, 74-76), and that the lineup was completed the day of the robbery (app. 58, 52-53). In light of this testimony, including the corroborating testimony regarding the photo lineup completion by Officer Lovell (app. 78-89), the trial judge found that the identification by Ms. Jackson was not suggestive and that "the fact that a name may have been mentioned to [Ms. Jackson] previously without any description of that individual or photograph" did not affect Ms. Jackson's identification of the petitioner (app. 91-92).
The petitioner asserts that the photo lineup was impermissible because Ms. Jones, a co-worker to Ms. Jackson, mentioned that a "Mr. Scott" was going to rob the store two weeks prior to the incident in question; however, as noted, the undersigned finds no error by the state court on this issue. Indeed, during the Biggers hearing, Ms. Jackson testified that while Ms. Jones indicated that a "Mr. Scott," a prior employee, intended to rob the store (and made a comment after the robbery and before the completion of the photo lineup identification that "Mr. Scott" had done it), Ms. Jackson testified that she had never met him in person, and that there were no names on the photo lineup (app. 73-74, 75-77). As noted, in light of that testimony, the trial judge found that the mere mention of a name, absent description of the individual or a photograph, did not affect Ms. Jackson's identification of the petitioner (app. 91-92). As such, in light of the support in the record for the trial court's finding, the undersigned recommends granting the respondent's motion for summary judgment as to Ground 1.
Ground 2: Illegal Search and Seizure
In Ground 2, the petitioner alleges illegal search and seizure based upon the warrantless entry into Ms. Copeland's residence to arrest him (doc. 1 at 7, 18-20). The petitioner has asserted this claim at the PCR and PCR appeal stages of state court litigation. This claim is therefore properly preserved, cognizable, and ripe for consideration by this court. Nevertheless, where a state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. Stone v. Powell, 428 U.S. 465, 482 (1976); Todd v. Warden, Livesay Corr. Inst., C/A No. 1:14-221-TLW, 2015 WL 424573, at *6 (D.S.C. Feb. 2, 2015). In further defining this rule, the Fourth Circuit Court of Appeals held in Doleman v. Muncy, 579 F.2d 1258 (4th Cir. 1978), that the Stone requirement of an opportunity for full and fair litigation of a Fourth Amendment claim is met when state procedures provide a meaningful vehicle for a prisoner to raise a Fourth Amendment claim. Doleman, 579 F.2d at 1265. In Doleman, the requirement was met because the prisoner had an opportunity to present his Fourth Amendment claim through a motion to suppress at his state criminal trial and through an assignment of error on appeal once the motion was denied. Id.
Here, the petitioner had a full and fair opportunity to litigate this Fourth Amendment issue during his trial, but—as recognized by the PCR court—"did not challenge the search and seizure at trial and his failure to do so" waived the allegation for review by the PCR court (app. 697). Nevertheless, after hearing extensive testimony on the subject (app. 578-92) the PCR court, in addressing the petitioner's ineffective assistance of counsel claim regarding the illegal search and seizure, held as follows:
This Court finds [the petitioner] has failed to satisfy his burden of proving that [trial c]ounsel was deficient for failing to challenge the search of Copeland's home. [The petitioner] argues that [trial c]ounsel should have challenged both his arrest and the collection of his DNA.
Here, [the petitioner] was staying as a guest at Copeland's home. On the day of the robbery, Copeland was away visiting her mother in the hospital. After the robbery occurred, officers asked for Copeland's consent to search for [the petitioner] in her home. Copeland testified that she was not threatened or coerced to consent to the search. Thus, Officers obtained lawful consent to search Copeland's home for [the petitioner]. [The petitioner] testified that no evidence was found or obtained other than himself and blood from his nose. . . . In addition, this Court finds [the petitioner] has failed to show that the search of Copeland's home was not accomplished pursuant to her lawful consent. Accordingly, [the petitioner] has failed to show [trial c]ounsel was deficient for failing to challenge his arrest, or that she had any basis for doing so. Furthermore, [the petitioner]
has failed to present any evidence that the alleged deficiency had any impact on the outcome of his trial.(App. 693-94). The undersigned finds that the petitioner had a full and fair opportunity to address his freestanding Fourth Amendment claim before the trial court (and even obtained further review of his claim before the PCR court as part of his ineffective assistance of counsel claim). Such opportunity to address this matter, under Stone, bars habeas review. Doleman, 579 F.2d at 1265. As such, the undersigned recommends granting the respondent's motion for summary judgement as to Ground 2.
Ground 3: Illegal and Falsified Documents
In his federal petition, Ground 3 is described as follows:
Ground 3: Illegal and falsified documents(Doc. 1 at 8, 21-22). In his response in opposition to the motion for summary judgment, on the other hand, the petitioner appears to raise an alternate Ground 3, as was raised in his pro se Johnson response brief, which asserts:
Supporting Facts: My trial attorney, Ms. Beverly Jones, never brought to the court's attention that the arrest warrant was dated and obtained on the day after the arrest. The address for execution on the arrest warrant was addressed to and for my parents' house in Richland county. The photo line-up affidavit has someone else's name on it. That is not my name.
My trial counsel, [ ] failed to bring to the court's attention, the illegal and unusual document, [supposedly signed] by Magistrate Eber C. Gowan and Sgt. Kip Teal, Chesnee Police, purporting to be an affidavit for DNA. Trial counsel failed to bring to the court's attention that there was not a court order nor a search warrant to accompan[y] the affidavit. Trial counsel failed to bring to the court's attention the results from that analysis that was orchestrated on September 29, 2010. Most importantly, trial counsel failed to bring to the court's attention why [it was] necessary to order another DNA analysis again on March 23, 2012.(Doc. 21-1 at 69; see doc. 19 at 18-23) ("alternate Ground 3"). These two grounds for relief are not the same, and issues cannot be raised for the first time in response to a motion for summary judgment. See White v. Roche Biomedical Labs., Inc., 807 F. Supp. 1212, 1216 (D.S.C. 1992) (noting that "a party is generally not permitted to raise a new claim in response to a motion for summary judgment"); Neumon v. Cartledge, C/A No. 8:14-cv-02556-RMG, 2015 WL 4607732, at *9 n.9 (D.S.C. July 31, 2015) (applying Roche in a Section 2254 habeas corpus action). Nevertheless, to the extent the petitioner attempts to amend his petition to seek relief under this alternate Ground 3, any amendment would be futile; thus, any attempt at amending Ground 3 should be denied. See Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999).
The PCR court, in dismissing alternate Ground 3 for relief, noted:
In support of his allegation that [trial c]ounsel should have challenged the collection of his DNA, [the petitioner] contended (contrary to the officer's testimony at trial) that the officer assaulted him and was able to illegally obtain a sample of his blood as a result of the assault. However, the DNA evidence that was presented at trial was obtained through a court-ordered buccal swab. [Trial c]ounsel testified that prior to trial, a hearing was held pursuant to Schmerber v. California, 384 U.S. 757, 770-72 (1996), in which the State moved for and obtained a court order to perform a buccal swab to collect [the petitioner's] DNA. [The petitioner's] DNA profile was compared to samples obtained from the clothing that victim wore at the time of the robbery and a tablecloth that was hanging in a window at the store. [Trial c]ounsel testified that she had no basis upon which she could have challenged the collection of [the petitioner's] DNA through the court-ordered buccal swab. See Palacio v. State, 511 S.E.2d 62, 67 (S.C. 1999)] (no deficiency where "it would have been futile for Attorney to have made such arguments").
This Court finds [the petitioner] failed to show that the collection of his DNA in this manner violated the Fourth Amendment or Schmerber, 384 U.S. 757. [See State v. Baccus, 625 S.E.2d 216, 223 (S.C. 2006)] (setting forth requirements for obtaining an order permitting involuntary submission of nontestimonial identification evidence). As a result, [the petitioner] has failed to show any deficiency in [trial c]ounsel's performance with respect to this allegation. This Court also finds that [the petitioner] has failed to show that any alleged deficient performance prejudiced him. In his Application, [the petitioner] states that the relief he desires is to have his sentence and conviction overturned. At the hearing, when [the petitioner's] PCR counsel asked him if he was seeking a new trial in this case, he stated "no." [See Leon v. State, 666 S.E.2d 260, 262 (S.C. Ct. App. 2008)] ("[W]hen asked during direct-examination if he would have gone to trial instead of pleading guilty . . . , [his] response was, 'No.' Thus, [petitioner] fails to
prove the deficient performance by his attorney prejudiced his case.").(App. 694-95). The PCR court's decision was not "contrary to, or . . . an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or . . . a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d). As such, to the extent the petitioner seeks to amend his petition as asserting alternate Ground 3, such amendment should be denied because it would be futile.
Accordingly, this Court finds [the petitioner] has failed to show either deficiency or prejudice as to this claim. Therefore, this allegation is denied and dismissed.
As to Ground 3 asserted in the instant petition, as noted, the petitioner asserts that (1) trial counsel was ineffective for failing to challenge the arrest warrant that was dated the day after the petitioner's arrest with the petitioner's parents' address and (2) that the photo lineup had someone else's name on it (doc. 1 at 8, 21-22). The petitioner asserted this claim at PCR and—construing the record in the light most favorable to the petitioner—at the PCR appeal stages of state court litigation. This claim is therefore properly preserved, cognizable, and ripe for consideration by this court.
To the extent the petitioner's response in opposition to the respondent's motion for summary judgment argues the merits of alternate Ground 3, the undersigned will not address them herein.
To the extent the petitioner raises an ineffective assistance of counsel claim for failure to challenge the arrest warrant, the undersigned has addressed it with the other ineffective assistance of counsel claims outlined below. See infra pp. 21-24. In Ground 3.2, the petitioner challenges the "illegal" and "falsified" photo lineup, asserting that it contained someone else's name because on the line where the "subject's" name goes it says "Alexander Brent Scott" instead of "Andrew Brent Scott" (doc. 21-1 at 36). The respondent argues that Ground 3.2 is meritless because the record does not support any finding of falsity (doc. 14 at 25-27). The undersigned agrees. As noted above, the identification of the petitioner by Ms. Jackson and the entry of the photo lineup into evidence was not a decision contrary to or involving an unreasonable application of clearly established Federal law. See supra, pp. 12-16. Moreover, the record is clear that Ms. Jackson picked the petitioner in the photo lineup—and a scrivener's error (which happened after she completed the form) cannot negate her identification of the petitioner. As such, for the reasons outlined herein, the undersigned recommends granting the respondent's motion for summary judgment with respect to Ground 3.2 as well.
Grounds 3.1 & 4: Ineffective Assistance of Counsel
In Ground 3.1 of his petition, the petitioner asserts an ineffective assistance of counsel claim based upon failure to challenge the arrest warrant. In Ground 4, the petitioner asserts ineffective assistance of counsel for (1) failing to conduct an adequate investigation, (2) failing to interview and subpoena Ms. Jackson's supervisor, and (3) failing to interview and subpoena Ms. Jackson's co-workers. As noted above, the undersigned finds that taking the record in the light most favorable to the petitioner, Ground 3.1 and the entirety of Ground 4 were properly asserted at both the PCR and PCR appeal stages of state court litigation. These claims are therefore properly preserved, cognizable, and ripe for consideration by this court.
To be entitled to relief on an ineffective assistance of counsel claim, a petitioner must show that (1) trial counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that but for counsel's error, the result of that proceeding would have been different. Strickland v. Washington, 466 U.S.668, 687-94 (1984). Strickland does not guarantee perfect representation, only a "'reasonably competent attorney.'" Id. at 687 (quoting McMann v. Richardson, 397 U.S. 759, 770, 771 (1970)). There is a strong presumption, however, that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions in the case. Id. at 690.
The review of ineffective assistance of counsel claims in federal habeas is not simply a new review of the merits; rather, habeas review is centered upon whether the state court decision was reasonable. See 28 U.S.C. § 2254(d). Additionally, each step in the review process requires deference—deference to counsel and deference to the state court that previously reviewed counsel's actions:
Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both "highly deferential," and when the two apply in tandem, review is "doubly" so. The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). 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.Harrington, 562 U.S. at 105 (internal citations omitted). In order to satisfy the prejudice requirement of Strickland following a guilty plea, a petitioner who alleges ineffective assistance of counsel must show that "there is a reasonable probability that, but for counsel's errors, he would not have [pled] guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985) (footnote omitted). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
Ground 3.1: Failure to challenge Arrest Warrant
The petitioner asserts that trial counsel was ineffective because she failed to bring to the court's attention that the arrest warrant, obtained the day after the petitioner's arrest and containing the petitioner's parents' address, was deficient (doc. 1 at 8, 21-22). The respondent asserts that there remain no genuine issues of material fact that the record before the State court included substantial evidence that trial counsel was not defective in not challenging the arrest warrant (doc. 14 at 23-25).
At the PCR hearing, the petitioner introduced an arrest warrant that he alleged was defective because it was unsigned (app. 599-606). The petitioner testified that the warrants he received did not have a signature on them and that they were signed the day after he was arrested (app. 598-600). The petitioner testified that a warrant was required before his arrest to provide probable cause (id.). Trial counsel, on the other hand, testified that she did not challenge the warrant because by the time she was appointed to the case the petitioner had been indicted on the charges, and anomalies or errors in arrest warrants are meaningless and the indictment controls (app. 666-67). Trial counsel also testified that although the petitioner was able to find an unsigned copy of the arrest warrant, it is not of import so long as the original is signed (app. 667).
In light of the testimony and record before it, the PCR court's written decision noted that "the Court finds [trial c]ounsel's testimony credible and gives it great weight. The Court finds [the petitioner's] testimony neither credible nor legally relevant" (app. 689). Thus, the PCR court found as follows:
[The petitioner] argues that [trial c]ounsel should have challenged both his arrest and the collection of his DNA.(App. 693-94). The PCR court's rejection of the petitioner's ineffective assistance of counsel ground for relief (addressing the arrest warrants) was not "contrary to, or . . . an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or . . . a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d). The PCR court found that the petitioner failed to meet the first and second prongs of Strickland and noted that the petitioner's testimony was not credible while finding trial counsel's testimony credible (app. 689). The PCR court's factual determinations regarding credibility are entitled to deference, and there is a presumption of correctness that attaches to state court factual findings. See 28 U.S.C. § 2244(e)(1); Cagle v. Branker, 520 F.3d 320, 324-25 (4th Cir. 2008). Further, as noted by the PCR court, the record contained signed arrest warrants that exhibited no facial defects, and the record indicates that the petitioner was indicted on his charges, making any defects in the arrest warrants meaningless (app. 694). As such, in light of the support in the record for the PCR court's finding that the petitioner failed to meet the first and second prongs of Strickland with respect to his ineffective assistance of counsel claim, the undersigned recommends granting the respondent's motion for summary judgment as to Ground 3.1.
. . . [Trial c]ounsel testified that anomalies or errors in arrest warrants are meaningless and that the indictment controls. [Trial c]ounsel testified that when her representation began, [the petitioner] had already been indicted. [Trial c]ounsel stated the arrest warrants introduced at the hearing were copies and that as long as the original bears the signature that is all that matters. The arrest warrants are part of the record before this court. This Court finds that the arrest warrants are signed and the warrants bear no facial defects. . . . Accordingly, [the petitioner] has failed to show [trial c]ounsel was deficient for failing to challenge his arrest, or that she had any basis for doing so. Furthermore, [the petitioner] has failed to present any evidence that the alleged deficiency had any impact on the outcome of his trial.
Ground 4: Failure to Investigate & to Interview and Subpoena Witnesses
The petitioner also asserts that trial counsel was ineffective because she failed to investigate the petitioner's claim and to interview and subpoena Ms. Jackson's co-workers and supervisor (doc. 1 at 10, 23). The respondent asserts that there remain no genuine issues of material fact that the record before the State court included substantial evidence that trial counsel conducted a thorough investigation of the facts and evidence in preparation of the petitioner's case (doc. 14 at 27-29).
Counsel "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." United States v. Roane, 378 F.3d 382, 409 (4th Cir. 2004) (citing Strickland, 466 U.S. at 691). In evaluating a decision not to investigate, the court must assess its reasonableness, "applying a heavy measure of deference to counsel's judgments." Id. The petitioner asserts that trial counsel failed to investigate because trial counsel did not abide by the rules of professional conduct that a client controls the "objectives of representation" (doc. 19 at 24-25); admitted to failing to speak, interview, or subpoena Ms. Jones (id. at 25-27); failed to bring to the court's attention to results of the September 29, 2010 buccal swab (id. at 27); failed to address the coerced illegal consent to search by Ms. Copeland (id. at 27-28); failed to seek suppression of the search (id. at 28); and failed to investigate the next-door businesses to Money Tree and their video surveillance (id.). The petitioner's arguments, for the most part, however, focus on the underlying facts of his criminal case (i.e. a merits review)—not on the reasonableness of the PCR court's finding that trial counsel was not deficient in her representation of the petitioner.
At the PCR hearing, the petitioner testified that trial counsel failed to investigate because trial counsel did not subpoena witnesses to the arrest that occurred in his house (and who purportedly witnessed an assault on the petitioner by Sgt. Teal) (app. 564-65, 566-67), failed to interview or subpoena Ms. Jones (even though he did not learn about her until during the trial) (app. 565-66), and did not look into surveillance footage from two businesses located next door to the Money Tree (app. 568-70). Trial counsel then testified before the PCR court about her representation of the petitioner and the investigation she conducted (app. 642-79). Trial counsel testified that the petitioner did not request that she subpoena Officer DeYoung with Chesnee or Ms. Copeland's nephew (app. 644). She further testified that she did not speak with Ms. Jones and that the Money Tree employees, for the most part, were not helpful to the petitioner's case (app. 644-45, 655-56, 658). Trial counsel also testified about her investigation into the store's policy regarding the replacement of the locks when an employee has been terminated as a potential defense (app. 646-47). Trial counsel then testified that, after a second identification witness was identified, she and her investigator went out to meet with him and that at the end of their talk the second identification witness was not as sure about his identification of the petitioner (app. 658-59). Additionally, trial counsel indicated that she focused, especially in the Biggers hearing, on a strategy of "rush to judgment" by the officers (app. 648) and that she did complete a full investigation and had enough time to appropriately prepare for trial (app. 659-61).
In light of the testimony and record before it, the PCR court's written decision noted that "the Court finds [trial c]ounsel's testimony credible and gives it great weight. The Court finds [the petitioner's] testimony neither credible nor legally relevant" (app. 689). Thus, the PCR court found as follows:
[The petitioner] alleges [trial c]ounsel failed to properly interview witnesses and investigate the crime scene and refused to subpoena the victim's co-worker to address identification issues. This Court finds [that the petitioner] has failed to satisfy his burden of proving that [trial c]ounsel was ineffective in this regard. Failure to conduct an independent investigation is not per se ineffective assistance of counsel, especially where an investigation would not have uncovered any helpful information. [See Moorehead v. State, 496 S.E.2d 415, 417 (S.C. 1998); Stokes v. State, 419 S.E.2d 778, 779 (S.C. 1992)] ("Where, as here, counsel articulates a valid reason for employing certain strategy, such conduct will not be deemed ineffective assistance of counsel.") (citing [Whitehead v. State, 417 S.E.2d 529 (S.C. 1992)])). Here, [trial c]ounsel testified that she felt her investigation was complete. She stated that she went to the store, observed the layout, talked to the store employees and other potential witnesses, questioned the appropriate people about the store's policies as to the turning over of keys after termination of employment, and attempted to flesh out the issue regarding the lack of a surveillance video. . . . [Trial c]ounsel also testified that she did not call the victim's co-worker, Regina Jones, to testify because the store employees in general were not helpful and because Regina's testimony in particular would have been harmful. [Trial c]ounsel testified she reviewed all discovery with [the petitioner]. The Court finds trial counsel conducted a proper investigation, fully explored all possible defenses, adequately conferred with [the petitioner], and was thoroughly competent in her representation. Accordingly, [the petitioner] has failed to demonstrate that [trial c]ounsel's performance was deficient in this regard.
Further, this Court finds [the petitioner] has failed to demonstrate that any alleged error prejudiced him. [Dempsey v. State, 610 S.E.2d 812, 814 (S.C. 2005)] ("A PCR applicant cannot show that he was prejudiced by counsel's failure to call a favorable witness to testify at trial if that witness does not later testify at the PCR hearing or otherwise offer testimony within the rules of evidence." (citing [Glover v. State, 458 S.E.2d 538, 540 (S.C. 1995))). Jackson v. State, 495 S.E.2d 768, 772 (S.C. 1998)] ("Respondent failed to present any evidence of what counsel could have discovered or what other defenses respondent would have requested counsel pursue had counsel more fully prepared for the trial.").(App. 691-93). The PCR court's rejection of the petitioner's ineffective assistance of counsel ground for relief (addressing more ineffective assistance of counsel claims than raised herein) was not "contrary to, or . . . an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or . . . a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d). The PCR court found that the petitioner failed to meet the first and second prongs of Strickland and noted that the petitioner's testimony was not credible while finding trial counsel's testimony credible (app. 689). As noted above, the PCR court's factual determinations regarding credibility are entitled to deference, and there is a presumption of correctness that attaches to state court factual findings. See 28 U.S.C. § 2244(e)(1); Cagle, 520 F.3d at 324-25. Further, despite the outline of actions the petitioner alleges trial counsel should have taken, there is nothing in the state court record demonstrating that trial counsel conducted an inadequate investigation or that she failed to appropriately interview and subpoena witnesses. As such, in light of the support in the record for the PCR court's finding that the petitioner failed to meet the first and second prongs of Strickland with respect to his ineffective assistance of counsel claim, the undersigned recommends granting the respondent's motion for summary judgment as to Ground 4.
Here, [the petitioner] produced no witnesses at the PCR hearing. [The petitioner's] PCR counsel informed the Court that she diligently attempted to contact the witnesses [the petitioner] named, but that she either could not locate those individuals or they did not respond. Because [the petitioner] did not produce these witnesses at the PCR hearing, this Court can only speculate as to what their testimony would have been and whether it would have been helpful or harmful. Likewise, [the petitioner] failed to present any evidence of what information [trial c]ounsel would have uncovered had she conducted any further investigation. . . . In addition, given the DNA evidence that linked [the petitioner] to the crime, [the petitioner] has failed to show that there is a reasonable probability that but for the alleged deficiency of [trial c]ounsel, the outcome of [the petitioner's] trial would have been different.
Accordingly, this Court finds [the petitioner] has failed to satisfy his burden of proving either deficiency or prejudice with respect to this allegation. Therefore, this allegation is denied and dismissed.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, IT IS RECOMMENDED that the respondent's motion for summary judgment (doc. 15) be granted and the petitioner's habeas petition be dismissed.
IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge July 29, 2019
Greenville, South Carolina
The petitioner's 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 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street
Greenville, South Carolina 29601
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).