Opinion
C/A No.: 1:19-cv-2176-MBS-SVH
01-10-2020
Eugene Thomas, #222351, Petitioner, v. Warden of McCormick Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Eugene Thomas ("Petitioner") is an inmate at the McCormick Correctional Institution of the South Carolina Department of Corrections who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's return and motion for summary judgment. [ECF Nos. 9, 10]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 11]. After receiving multiple extensions of time to respond to the motion, Petitioner filed a response on December 4, 2019. [ECF No. 25]. On December 23, 2019, Petitioner filed a motion to amend his response, attaching briefing and exhibits that were not included in his initial response. [ECF No. 26]. Respondent did not file any opposition to the motion to amend. The undersigned now grants the motion to amend. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment [ECF No. 10] be granted. I. Procedural Background
Petitioner was indicted by the Greenville County Grand Jury during the May 2010 term of court for armed robbery and possession of a weapon during the commission of a violent crime (2009-GS-23-9350) and for burglary third degree (2009-GS-23-9349). [ECF No. 9-1 at 495-98]. Scott Robinson, Esq., represented Petitioner at a jury trial held September 10 through 11, 2012, before the Honorable R. Markley Dennis, Circuit Court Judge. [ECF No. 9-1 at 3 et seq.]. The jury found Petitioner guilty of third degree burglary, possession of a weapon during the commission of a violent crime, and attempted armed robbery. [ECF No. 9-1 at 342]. Judge Dennis sentenced Petitioner to incarceration for life without parole for the attempted armed robbery conviction and to five years' incarceration for each of the other convictions, to be served concurrently. [ECF No. 9-1 at 349-50].
Petitioner appealed his convictions to the South Carolina Court of Appeals ("Court of Appeals"). [ECF No. 9-2]. On appeal, Petitioner was represented by Timothy L. Gehret, Esq., and the Chief Appellate Defender, Robert Dudek, Esq., of the South Carolina Commission on Indigent Defense. [ECF No. 9-2 at 1]. Appellate counsel filed a final brief on March 12, 2014, raising the following issues:
[ECF No. 9-2 at 5]. On October 15, 2014, the Court of Appeals filed an unpublished opinion affirming Petitioner's conviction. [ECF No. 9-4]. The remittitur was issued on November 3, 2014. [ECF No. 9-5].
1.
Did the circuit court err in denying Appellant's motion for directed verdict because the State's circumstantial evidence was not substantial enough to create any more than a mere suspicion of guilt?
2.
Did the circuit court err in denying Appellant's motion to suppress the pre-trial photo lineup identification because it was unduly suggestive and unreliable under the totality of the circumstances?
3.
Did the circuit court err in refusing to charge the lesser included offense of strong armed robbery because no proof of a weapon or threat of a weapon was ever presented?
Petitioner filed an application for post-conviction relief ("PCR") on May 7, 2015, in which he alleged claims of ineffective assistance of trial counsel and of appellate counsel and a claim that the prosecution committed a Brady violation. [ECF No. 9-1 at 355-70].
At PCR, Petitioner was represented by Brian P. Johnson, Esq. [ECF No. 9-1 at 375]. A PCR evidentiary hearing was held before the Honorable John C. Hayes, III, Circuit Court Judge, on October 24 and 27, 2016, at which the following witnesses testified: Petitioner, trial counsel, Demeco Thomason, and Yvonne McBee. [ECF No. 9-1 at 375-481]. On November 4, 2016, Judge Hayes filed an order of dismissal. [ECF No. 9-1 at 489-94].
Petitioner appealed from the denial of PCR. [ECF No. 9-6]. Appellate Defender Robert M. Pachak, Esq., of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, represented Petitioner on appeal. [ECF No. 9-6]. Attorney Pachak filed a petition for writ of certiorari in the South Carolina Supreme Court on or about June 28, 2017, raising the issue of "[w]hether defense counsel was ineffective in failing to call alibi witness at petitioner's trial?" [ECF No. 9-6 at 3].
The South Carolina Supreme Court granted the petition for writ of certiorari and ordered the parties to files briefs. [ECF No. 9-8]. Attorney Pachak filed a brief on Petitioner's behalf. [ECF No. 9-9]. After hearing argument on June 11, 2019, the South Carolina Supreme Court dismissed certiorari as improvidently granted. [ECF No. 9-11]. The remittitur was issued on July 8, 2019. [ECF No. 9-12].
On February 26, 2019, Petitioner filed a second PCR action raising claims of newly-discovered evidence, fraud on the court, lack of subject matter jurisdiction, and that his right to due process had been denied. [ECF No. 9-13 at 3]. That case remains pending in state court. [See ECF No. 9-14].
On August 5, 2019, Petitioner filed this federal petition for a writ of habeas corpus. [ECF No. 1]. II. Discussion
The petition was received and docketed by the court on August 5, 2019. [ECF No. 1-4 at 1]. However, because Petitioner is incarcerated, he benefits from the "prison mailbox rule." Houston v. Lack, 487 U.S. 266 (1988). The petition was deposited in the prison mailing system on July 31, 2019. [ECF No. 1 at 1].
A. Federal Habeas Issues
Petitioner states the following eleven grounds in his habeas petition: Ground One: Trial counsel was ineffective for failure to call alibi witnesses at Petitioner's trial. Ground Two: Trial counsel was ineffective for not "investigating" and "researching" whether or not Applicant's 1981 conviction for murder in Florida was a qualifying conviction for LWOP. Ground Three: Trial counsel was ineffective for failing to suppression of gun that was ultimately entered into evidence. Ground Four: Trial counsel was ineffective for failure to object to the prosecutor's "opening" and "closing" arguments to the jury by referring to; or relying upon evidence not admitted into evidence by Trial Court. Thus violating the Rules Governing the admission of evidence, which violated Petitioner's 6th and 14th Amendment of the U.S. Constitution. Ground Five: Inadequate assistance of counsel at a critical stage at initial-review collateral proceeding. Ground Six: Failed to communicate full extent and consequences of plea offer. Ground Seven: Failed to object to erroneous jury charges. Ground Eight: Appellate counsel was ineffective for failing to raise reversible error which was meritorious on direct appeal. Ground Nine: Failed to object to a constructive amendment of the indictment. Ground Ten: Brady Violation Prosecutor failed to disclosed the State's fingerprint analyst was not certified by S.L.E.D. Ground Eleven: Failed to object to prosecutor's closing argument that insinuated bad acts. [ECF No. 1-2 at 1-2] (errors in original).
In his initial list of habeas grounds, Petitioner identifies Ground Eight as a claim that trial counsel was ineffective for failing to object to the prosecutor's closing argument and Ground Eleven as a claim that appellate counsel was ineffective for failing to raise a meritorious claim on direct appeal. [ECF No. 1-2 at 1-2]. However, in his subsequent briefing, he switches those grounds. [See ECF No. 1-2 at 5, 6; ECF No. 25-2 at 11-20; ECF No. 26 at 2-5]. The above list corresponds to the numbering used in both the majority of Petitioner's briefing and in Respondent's briefing.
B. Standard for Summary Judgment
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e).
C. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his petition after the effective date of the AEDPA, review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Noland v. French, 134 F.3d 208, 213 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (2000). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 410. Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
2. Procedural Bar
Federal law establishes this court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person "is in custody in violation of the Constitution or laws or treaties of the United States[,]" and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
a. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court, shall not be granted unless it appears that—
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
28 U.S.C. § 2254.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767 (S.C. 1976). If the PCR court fails to address a claim as is required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will result in the application of a procedural bar by the South Carolina Supreme Court. Marlar v. State, 653 S.E.2d 266 (S.C. 2007). Furthermore, strict time deadlines govern direct appeal and the filing of a PCR in the South Carolina courts. A PCR must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.
In Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009), the Fourth Circuit found that, prior to the Supreme Court of South Carolina's November 5, 2007 decision in Marlar, South Carolina courts had not been uniformly and strictly enforcing the failure to file a motion pursuant to Rule 59(e), SCRCP, as a procedural bar. Accordingly, for matters in which there was a PCR ruling prior to November 5, 2007, the court will not consider any failure to raise issues pursuant to Rule 59(e) to effect a procedural bar.
The United States Supreme Court has held that "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process"—which includes "petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This opportunity must be given by fairly presenting to the state court "both the operative facts and the controlling legal principles" associated with each claim. Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000)(internal citations omitted). That is to say, the ground must "be presented face-up and squarely." Mallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994) (citation and internal quotation marks omitted).
The South Carolina Supreme Court has held that the presentation of claims to the state court of appeals without more is sufficient to exhaust state remedies for federal habeas corpus review. State v. McKennedy, 559 S.E.2d 850 (S.C. 2002); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454 (S.C. 1990). The McKennedy court held that In re Exhaustion had placed discretionary review by the South Carolina Supreme Court "outside of South Carolina's ordinary appellate review procedure pursuant to O'Sullivan." 559 S.E.2d at 854. As such, it is an "extraordinary" remedy under O'Sullivan, "technically available to the litigant but not required to be exhausted." Adams v. Holland, 330 F.3d 398, 403 (6th Cir. 2003).
Because the South Carolina Supreme Court has held that presentation of certain claims to the Court of Appeals without more is sufficient to exhaust state remedies, a claim is not procedurally barred from review in this court for failure to pursue review in the South Carolina Supreme Court after an adverse decision in the Court of Appeals.
b. Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the Supreme Court explains:
. . . [state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims
together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984).
3. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the state's courts in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman v. Thompson, 501 U.S. 722, 750 (1991), or by "prov[ing] that failure to consider the claims will result in a fundamental miscarriage of justice." Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir.), cert. denied, 555 U.S. 868 (2008). A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor which hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Id. Absent a showing of "cause," the court is not required to consider "actual prejudice." Turner v. Jabe, 58 F.3d 924 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
4. Ineffective Assistance of Counsel Claims
To prevail on his ineffective assistance of counsel claims, Petitioner must show (1) that his trial counsel's performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that but for counsel's error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). The court must apply a "strong presumption" that trial counsel's representation fell within the "wide range of reasonable professional assistance," and the errors must be "so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington v. Richter, 562 U.S. 86, 104 (2011). This is a high standard that requires a habeas petitioner to show that counsel's errors deprived him "of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. That the outcome would "reasonably likely" have been different but for counsel's error is not dispositive of the prejudice inquiry. Rather, the court must determine whether the result of the proceeding was fundamentally unfair or unreliable. Harrington, 562 U.S. at 104; Strickland, 466 U.S. at 694.
The United States Supreme Court has cautioned that "'[s]urmounting Strickland's high bar is never an easy task[,]' . . . [e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Harrington, 562 U.S. at 88 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). When evaluating an ineffective assistance of counsel claim, the petitioner must satisfy the highly deferential standards of 28 U.S.C. § 2254(d) and Strickland "in tandem," making the standard "doubly" more difficult. Harrington, 562 U.S. at 105. In such circumstances, the "question is not whether counsel's actions were reasonable," but whether "there is any reasonable argument that counsel satisfied Strickland's deferential standards." Id. The unreasonableness of the state court determination must be "beyond any possibility of fairminded disagreement." Id. at 103. "If this standard is difficult to meet, that is because it was meant to be." Id. at 102. Section 2254(d) codifies the view that habeas corpus is a "'guard against extreme malfunctions in the state criminal justice system,' not a substitute for ordinary error correction through appeal." Id. at 102, quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).
D. Analysis
1. Ground One
In Ground One, Petitioner asserts that trial counsel was ineffective for failing to call two alibi witnesses at his trial. At Petitioner's trial, the State presented evidence that Petitioner entered a vacant apartment building where the victim was working, pointed a gun at the victim, and demanded that he get on the ground. [ECF No. 9-1 at 122-38]. Petitioner then took the victim's wallet out of his pants and went through it. [ECF No. 9-1 at 139-40]. According to the evidence presented, the wallet contained various credit cards, receipts, and some cash that was hidden, but the only item Petitioner took from the wallet was a lottery ticket. [ECF No. 9-1 at 141-43]. Petitioner then fled the scene. [ECF No. 9-1 at 140-43]. Petitioner asserts there were multiple witnesses who could have testified he was at a house party at the time of the crime and that trial counsel was ineffective for failing to call those witnesses to testify before the jury. Petitioner raised this same claim in his PCR action, but the PCR court did not grant relief. Respondent asserts the PCR court's decision was not based on unreasonable factual findings or the unreasonable application of federal law. Accordingly, Respondent asserts that habeas relief is not warranted as to Ground One.
Petitioner contends that Yvonne D. McBee and Demeco Thompson could have provided an alibi for him at trial had they been called to testify. At the PCR evidentiary hearing, trial counsel testified his decision not to call any witnesses "was purely strategy." [ECF No. 9-1 at 425]. Trial counsel further explained, "[Y]ou have to be very careful when you put witnesses up there because sometimes it backfires and if it backfires you lose the last argument . . . . I thought it was very important in this case 'cause this case was a purely, uh, I believe a circumstantial case because the [victim] . . . said [] that he wasn't a hundred percent sure . . . ." [ECF No. 9-1 at 424-25]. Trial counsel testified Petitioner consented to not calling the alibi witnesses based on trial counsel's strategy. [ECF No. 9-1 at 425-27, 442-43]. Trial counsel also testified he would have called the witnesses had he thought their testimony would have been beneficial. [ECF No. 9-1 at 426].
At the PCR evidentiary hearing, Demeco Thomason testified Petitioner was playing cards with him and others from about five or six in the evening on July 22, 2009 until early the next morning. [ECF No. 9-1 at 466-68]. Thomason could not recall the exact dates, but he knew he saw Petitioner again the next evening, and Petitioner told Thomason someone had accused Petitioner of committing a robbery a day earlier. [ECF No. 9-1 at 468-69]. Thomason testified he responded, "How can you rob somebody last night, you was up here playin' cards with us." [ECF No. 9-1 at 469].
Although Petitioner refers to this individual as Demeco Thompson in his petition, that individual appears to be named Demeco Thomason based on the PCR proceedings. [See ECF No. 9-1 at 465].
Yvonne McBee also testified at the PCR evidentiary hearing. [ECF No. 9-1 at 470-76]. She testified Petitioner attended a cookout in her yard one day in the summer, and he was there from about 8:30 or 9 in the morning until the early morning hours of the next day. [ECF No. 9-1 at 472-73]. According to McBee, at some point,
[S]ome young boys walked up in my yard, I don't even know . . . who these people was and they said somebody had robbed somebody, I'm like Mr. Thompson's sittin' there havin' fun, he was with everybody in the yard havin' a good time, he did not leave my yard period.[ECF No. 9-1 at 472].
McBee referred to Petitioner as "Mr. Thompson" during her testimony, but she clarified she was talking about Petitioner. [ECF No. 9-1 at 474]. She stated, "I just get it mixed up . . . ." [ECF No. 9-1 at 474]. McBee testified she had been friends with Petitioner for years and she knew his family. [ECF No. 9-1 at 473].
The PCR court acknowledged the testimony of Petitioner's alibi witnesses, but the court ultimately rejected Petitioner's claim of ineffective assistance of counsel based on the following reasoning:
[T]rial counsel, with Applicant's approval, utilized acceptable trial strategy to not present a defense to preserve his right to make the final closing argument. Trial counsel testified he advised Applicant as to the pros and cons of preserving final argument and Applicant agreed with trial counsel's strategy to not call witnesses. The record reflects Applicant's satisfaction with this strategy (Trial Record p. 283, l. 20 through p. 284, l. 3).[ECF No. 9-1 at 490-91].
Where trial counsel articulates a valid reason for employing a certain strategy, such choice will not be deemed ineffective assistance of counsel. Stokes v. State, 308 S.C. 546, 419 S.E.2d 778 (1992). In the instant case, the trial strategy exercised by trial counsel was well within the trial strategy which a reasonable competent attorney would have exercised under the same or similar circumstances.
Petitioner asserts trial counsel was ineffective for failing to call his alibi witnesses. [ECF No. 1-2 at 3]. In his response to the motion for summary judgment, he further generally asserts the PCR court unreasonably applied federal law and incorporates by reference the arguments in his PCR appeal. [See ECF No. 25-1 at 5]. However, Petitioner has failed to identify how he believes the PCR court misapplied federal law. To the contrary, the record shows the PCR court found credible trial counsel's testimony that he did not call the alibi witnesses as part of his trial strategy, and as the Supreme Court has stated, "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 690. Moreover, the PCR court's credibility determination is entitled to deference here. See Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)) ("[F]or a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear."); see also Marshall v. Lonberger, 459 U.S. 422, 434 (1983) ("28 U.S.C. § 2254(d) gives federal courts no license to redetermine the credibility of witnesses whose demeanor has been observed by the state trial court, but not by them."). While Petitioner argues that trial counsel's decision not to call the alibi witnesses was unreasonable, Petitioner has failed to identify a Supreme Court case where a similar strategic decision was deemed objectively unreasonable. Notably, the state cases cited in the petition for writ of certiorari in Petitioner's PCR appeal concern attorneys who either did not interview or did not subpoena potential alibi witnesses, unlike trial counsel, who was prepared to call the alibi witnesses at the time of Petitioner's trial, but decided against it based on his own estimation of how the jury might perceive the testimony of those witnesses, as well as other strategic considerations. It was not unreasonable for the PCR court to find trial counsel employed a valid strategy and, therefore, was not deficient.
Because Petitioner has failed to meet his burden under 28 U.S.C. § 2254, he is not entitled to habeas relief as to his Ground One. Accordingly, the undersigned recommends granting Respondent's motion for summary judgment as to this ground.
2. Ground Five
In Ground Five, Petitioner asserts PCR counsel "abandoned [him] at a crucial stage during the initial review by not helping to properly litigate a issue that had meritorious value and also held by the courts." [ECF No. 1-2 at 4]. However, alleged infirmities in a state post-conviction action are not matters that may be addressed in federal habeas actions as free-standing grounds. Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988) ("[C]laims of error occurring in a state post-conviction proceeding cannot serve as a basis for federal habeas corpus relief."). The federal role in reviewing an application for habeas corpus is limited to evaluating what occurred in the state or federal proceedings that actually led to the petitioner's conviction. 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."); see also Bell-Bey v. Roper, 499 F.3d 752, 756 (8th Cir. 2007) ("Because the Constitution does not guarantee the existence of state post-conviction proceedings, an infirmity in a state post-conviction proceeding does not raise a constitutional issue cognizable in a federal habeas application.") (internal citations, quotation marks, and alteration omitted). This ground is not cognizable in this action. Accordingly, the undersigned recommends Petitioner's Ground Five be denied and dismissed with prejudice.
As discussed in further detail below, while the alleged ineffective assistance of PCR counsel cannot serve as a free-standing ground for habeas relief, such a claim could potentially serve as cause to excuse the procedural default of a claim that trial counsel was ineffective.
3. Procedurally-Barred Grounds
Respondent argues all of Petitioner's remaining grounds are procedurally defaulted. [ECF No. 9 at 1, 13-17]. The undersigned agrees and discusses the specifics of Grounds Two through Four and Six through Eleven and their various subparts below.
a. Grounds Two, Three, and Four
Grounds Two, Three, and Four in the habeas petition were raised to and ruled upon by the PCR court. [See ECF No. 9-1 at 491-93]. In Ground Two, Petitioner asserts trial counsel was ineffective for failing to investigate whether his prior murder conviction in Florida was a qualifying conviction for him to receive a sentence of life without parole. In Ground Three, Petitioner argues trial counsel was ineffective for failing to have evidence—a gun found in Petitioner's hotel room at the time of his arrest—suppressed. In Ground Four, Petitioner asserts trial counsel was ineffective for failing to object to the State's opening and closing arguments, which Petitioner claims relied upon evidence not admitted at trial. None of these claims was raised in the PCR appeal. Accordingly, these grounds are procedurally barred from federal habeas review. See Coleman, 501 U.S. 722 (stating that if an issue is not properly raised to the state's highest court and would be procedurally impossible to raise now, then it is procedurally barred from federal habeas review). Consequently, federal habeas review of these grounds is barred absent a showing of cause and actual prejudice or actual innocence. Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Matthews v. Evatt, 105 F.3d 907, 916 (4th Cir. 1997), abrogated on other grounds by Miller-El v. Dretke, 545 U.S. 231 (2005).
b. Grounds Six Through Eleven
The remaining grounds included in the petition were not raised to and ruled upon by the PCR court. Petitioner's Grounds Six, Seven, Nine, and Eleven allege trial counsel was ineffective—for failing to communicate the full extent and consequences of the plea offer, for failing to object to an erroneous jury charge, for failing to object to a constructive amendment of an indictment, and for failing to object to the insinuation of bad behavior during the State's closing arguments, respectively. In Ground Eight, Petitioner asserts appellate counsel was ineffective for failing to raise reversible error in his direct appeal. In Petitioner's Ground Ten, he asserts the State committed a Brady violation by failing to disclose that the fingerprint analyst was not certified by the South Carolina Law Enforcement Division ("SLED"). As none of these claims was properly raised to and ruled upon by the PCR court, they, too, are procedurally defaulted. As with the other grounds raised in the petition, except for preserved Ground One, for these issues to be considered in habeas review, Petitioner must demonstrate cause and prejudice for the procedural default or some fundamental miscarriage of justice.
c. Cause and Prejudice
Petitioner has not shown sufficient cause and prejudice to excuse the default of the grounds raised in his petition. In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims are barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Petitioner has failed to meet this burden. Thus, these claims are procedurally barred from consideration by this court and should be dismissed. See 28 U.S.C. § 2254; Rodriguez v. Young, 906 F.2d 1153, 1159 (7th Cir. 1990) ("Neither cause without prejudice nor prejudice without cause gets a defaulted claim into Federal Court."); Mazzell v. Evatt, 88 F.3d 263, 269 (4th Cir. 1996) (holding that to show prejudice, a petitioner must show that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different); Rodriguez, 906 F.2d at 1159 (holding a fundamental miscarriage of justice occurs only in extraordinary cases, "where a constitutional violation has probably resulted in the conviction of one who is actually innocent") (citing Murray).
The existence of cause must ordinarily turn on whether the prisoner can show some objective factor external to the defense impeded counsel's or his efforts to comply with the state's procedural rule. Murray, 477 U.S. at 488. The undersigned finds Petitioner has failed to articulate cause to excuse the default of these claims. Petitioner had a trial, a direct appeal, a PCR hearing, and an appeal from the PCR in which to raise these issues. However, he failed to properly raise these issues to the appellate courts. Petitioner cannot establish cause and prejudice because he has abandoned the opportunity to preserve these grounds.
In his response to the motion for summary judgment, Petitioner cites Martinez v. Ryan, 566 U.S. 1 (2012), and argues the procedural bar applied to Grounds Two through Eleven should be lifted due to his PCR counsel's ineffectiveness. [ECF Nos. 25-1, 25-2].
In Coleman v. Thompson, the Supreme Court held that ineffective assistance of counsel will constitute cause only if it is an independent constitutional violation. 501 U.S. 722, 755 (1991). In Martinez, the Court recognized a narrow exception to the rule established in Coleman and held that "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Martinez, 566 U.S. at 9.
[W]hen a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim in two circumstances. The first is where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington. To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.566 U.S. at 14 (internal citations omitted).
Martinez is not applicable to all of the procedurally defaulted claims raised by Petitioner in this habeas action. For instance, as Respondent notes in its return [ECF No. 9 at 16], Petitioner's reliance on Martinez to excuse the procedural default of Grounds Two through Four is misplaced. Because Petitioner raised his habeas issues in his initial collateral action, but PCR appellate counsel elected not to present these issues to the highest state court in his PCR, Martinez is inapplicable, as ineffective assistance of PCR appellate counsel is not cause for a default. Martinez, 565 U.S. at 11; Cross v. Stevenson, No. 11-2874, 2013 WL 1207067 at 3 (D.S.C. Mar. 25, 2013) ("Martinez . . . does not hold that the ineffective assistance of counsel in a PCR appeal established cause for a procedural default. In fact, the Supreme Court expressly noted its holding 'does not concern attorney errors in other kinds of proceedings, including appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts.'") (quoting Martinez, 566 U.S. at 16); Rodriguez v. Padula, No. 11-1297, 2014 WL 1912345 at 7 (D.S.C. May 12, 2014); Johnson v. Warden of Broad River Corr., No. 12-7270, 2013 WL 856731 at 1 (4th Cir. Mar. 8, 2013) (indicating PCR appellate counsel error cannot constitute cause under Martinez exception). Martinez does not excuse the default of Grounds Two, Three, and Four.
Similarly, Martinez cannot serve as cause to overcome the procedural default of Petitioner's Grounds Eight and Ten because those two grounds do not allege claims of ineffective assistance of trial counsel. The exception outlined in Martinez is a narrow one. Ineffective assistance of PCR counsel can constitute "cause to overcome the default of a single claim—ineffective assistance of trial counsel—in a single context—where the State effectively requires a defendant to bring that claim in state postconviction proceedings rather than on direct appeal." Davila v. Davis, 137 S. Ct. 2058, 2062-63 (2017) (citing Martinez 566 U.S. 1); see also Martinez, 566 U.S. at 16 (expressly declining to "extend [its holding] to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial"); Davila, 137 S. Ct. at 2065 ("Petitioner asks us to extend Martinez to allow a federal court to hear a substantial, but procedurally defaulted, claim of ineffective assistance of appellate counsel when a prisoner's state postconviction counsel provides ineffective assistance by failing to raise that claim. We decline to do so."). Thus, the procedural default of Grounds Eight and Ten cannot be excused based on Martinez.
For the procedural default of Petitioner's remaining four grounds to be excused pursuant to Martinez, Petitioner must show both a substantial claim of ineffective assistance of trial counsel and PCR counsel was ineffective for failing to raise such a claim. Initially, the undersigned notes Petitioner has only generally alleged and argued that PCR counsel was ineffective for failing to pursue Grounds Six, Seven, Nine, and Eleven. [See ECF No. 25-1 at 70-71; ECF No. 25-2 at 4-6, 24; ECF No. 26 at 2-3]. As already described herein, in evaluating counsel's performance, this court's review is highly deferential. See supra pp. 15-16. Petitioner bears the burden of "overcom[ing] the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland, 466 U.S. at 689. Petitioner offers that PCR counsel "assum[ed] . . . that to raise all issues would weary the court and weaken the two (2) issues counsel felt had meritorious value." [ECF No. 25 at 7]. That information does not show that PCR counsel provided deficient representation in Petitioner's collateral appeal. See Smith v. Murray, 477 U.S. 527, 536 (1986) ("This process of 'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.") (quoting Jones v. Barnes, 463 U.S. 745 751-52 (1983)). Petitioner has provided no evidence from PCR counsel concerning the latter's strategic decisions, or lack thereof, in failing to pursue the underlying ineffective-assistance-of-trial-counsel claims. "It should go without saying that the absence of evidence cannot overcome the 'strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance.'" Burt v. Titlow, 571 U.S. 12, 17 (2013) (quoting Strickland, 466 U.S. at 689). Petitioner has failed to meet his burden under Martinez. Cf. Runningeagle v. Ryan, 825 F.3d 970 (9th Cir. 2016) ("Given the 'highly deferential' standard under which we evaluate [collateral counsel's] performance, and the paucity of evidence that [collateral counsel] performed deficiently—which [petitioner] had a full opportunity to develop in district court following our limited remand—[petitioner] failed to overcome the 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'").
Notably, these grounds were all raised in Petitioner's pro se PCR application, but they were not further pursued at the PCR evidentiary hearing. [See ECF No. 9-1 at 362-63].
Given the lack of factual support for Petitioner's ineffective-assistance-of-PCR-counsel claims, the undersigned recommends upholding the procedural bar. Furthermore, as discussed in greater detail below, Petitioner has also failed to show that his underlying ineffective-assistance-of-trial-counsel claims are substantial. Because Petitioner has failed to satisfy the requirements of Martinez, he cannot overcome the procedural bar of Grounds Six, Seven, Nine, and Eleven. Accordingly, the undersigned recommends granting summary judgment as to these grounds.
In Ground Six, Petitioner asserts trial counsel was ineffective for failing to communicate the full extent and consequences of a plea offer. In particular, he asserts the State offered to let him plead to some lesser charge that would result in a sentence of twelve to fourteen years' incarceration and to dismiss all other charges. [ECF No. 1-2 at 4]. According to Petitioner, he was transported to the courthouse to accept the State's offer, but trial counsel suggested Petitioner might be able to secure a more favorable deal if he offered information on another case. [ECF No. 1-2 at 4]. Ultimately, the information Petitioner offered was not helpful, and Petitioner did not receive a plea deal. [ECF No. 1-2 at 4]. Because this claim was not pursued in the PCR proceedings, the record is not fully developed as to the facts surrounding this issue. However, there is some information in the record about other potential plea deals. For example, at the beginning of Petitioner's trial, the trial judge had a brief colloquy with Petitioner in which Petitioner affirmed the State had offered to let him make an Alford plea in exchange for withdrawing the notice that the State was seeking life without parole. [ECF No. 9-1 at 10-11]. Petitioner also affirmed he had instructed trial counsel to reject that offer. [ECF No. 9-1 at 10-11]. During the PCR evidentiary hearing, trial counsel stated that Petitioner "refused every offer that there was . . . ." [ECF No. 9-1 at 424].
Petitioner does not specify what charge he would have pled to under this deal, but a letter from trial counsel Petitioner submitted as part of his response to the motion for summary judgment states Petitioner received "the following potential offer from the State:
Plead guilty to Armed Robbery, Burglary 3rd, and Obstruction of Justice with a recommendation of 12-14 years. The remaining charges will be dismissed."[ECF No. 25-1 at 74 (emphasis in original)].
North Carolina v. Alford, 400 U.S. 25 (1970).
Defendants are entitled to effective representation during plea negotiations. See Hill v. Lockhart, 474 U.S. 52, 58 (1985) (holding that the Strickland standard is applicable for guilty pleas); Padilla v. Kentucky, 559 U.S. 356, 373 (2010) ("[W]e have long recognized that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel."). The Supreme Court has made clear that "as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." Missouri v. Frye, 566 U.S. 134, 145 (2012). The Court has also recognized it is difficult to define the duties and responsibilities of counsel during the plea bargain process because
[b]arganing is, by its nature, defined to a substantial degree by personal style. The alternative courses and tactics in negotiation are so individual that it may be neither prudent nor practicable to try to elaborate or define detailed standards for the proper discharge of defense counsel's participation in the process.Id. at 145. Based on the evidence presented to this court, it is clear trial counsel communicated the State's potential offer to Petitioner. Petitioner has failed to make a substantial showing trial counsel was otherwise deficient in how he handled the plea negotiations. Additionally, even if Petitioner had met his burden as to the first prong of Strickland, he has failed to make an adequate showing as to the second prong. That is, he has failed to make a substantial showing that "he would have accepted the offer to plead pursuant to the terms earlier proposed" and that "there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented." See Missouri v. Frye, 566 U.S. at 148. Based on the information before this court, Petitioner has failed to show a substantial claim of ineffective assistance of trial counsel in Ground Six, and he has not met his burden under Martinez.
In Ground Seven, Petitioner argues trial counsel should have objected when the trial court charged the jury as to both armed robbery and attempted armed robbery. [ECF No. 1-2 at 5]. Petitioner submits that "where the South Carolina General Assembly provides separate offenses in the same statutory scheme, only the indicted offense should be submitted to the jury." [ECF No. 25-2 at 3 (citing State v. Smith, 750 S.E.2d 612, 614 (2013))]. As this claim was not properly raised to and ruled upon by the PCR court, there is not a fully-developed record as to why trial counsel did not object to the charge. However, according to South Carolina case law, attempted armed robbery is a lesser-included offense of armed robbery. State v. Hiott, 276 S.E.2d 163, 167 (S.C. 1981); see also State v. Elliott, 552 S.E.2d 727, 734 (S.C. 2001) (Pleicones, J., dissenting) overruled on other grounds by State v. Gentry, 610 S.E.2d 494 (S.C. 2005) (citing Hiott, 276 S.E.2d 163). As Smith recognizes, "[a]n indicted offense necessarily includes all lesser-included offenses, which may properly (if supported by the evidence) be presented to the jury." 750 S.E.2d at 614 n.6. As Respondent explains in the return, state law defines robbery 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.'" [ECF No. 9 at 34 (quoting State v. Bland, 457 S.E.2d 611, 612 (S.C. 1995)]. Respondent states:
The evidence in Petitioner's case supported the instruction on attempted armed robbery as a lesser offense of armed robbery because the jury could determine from the evidence presented that the lottery ticket—the only item taken from the victim—was not property and/or had no value and thus no actual robbery occurred.[ECF No. 9 at 35]. The undersigned agrees with Respondent that Petitioner cannot meet his burden of showing a substantial claim of Strickland error and prejudice where counsel failed to object to an instruction that was appropriate under state law and the evidence presented at trial. [See ECF No. 9 at 35]. Accordingly, Petitioner has not met his Martinez burden as to Ground Seven.
In Ground Nine, Petitioner asserts trial counsel was ineffective for failing to object to a constructive amendment of the indictment. He again argues attempted armed robbery was not an appropriate charge when he was indicted for armed robbery. [ECF No. 25-2 at 21-22]. However, as discussed above, as a lesser-included offense of armed robbery, attempted armed robbery was properly presented to the jury for its consideration. Petitioner additionally argues because the lottery ticket, which was alleged to have been taken during the robbery, and other items that were in the victim's wallet at the time of the robbery, were not entered into evidence, he could not be convicted of the attempted armed robbery of any of those items. As Respondent explains in the return, if the jury found the lottery ticket was not property or had no value, then it could have found Petitioner guilty of attempted armed robbery based on the evidence presented at Petitioner's trial. [See ECF No. 9 at 38]. Petitioner's argument seems to be based on a misinterpretation of the law—that the items themselves must have been entered as exhibits in order for there to have been sufficient evidence for a conviction. However, the victim's testimony about the circumstances of the crime and his recollection of the contents of his wallet was sufficient evidence to support Petitioner's conviction. Because the objections Petitioner offers lack merit, he has failed to make a substantial showing either that trial counsel was deficient or that prejudice resulted. See Lavernia v. Lynaugh, 845 F.2d 493 (5th Cir. 1988) ("Counsel cannot be faulted for failing to pursue meritless motions."). Accordingly, Petitioner has failed to meet his Martinez burden as to Ground Nine.
Finally, in Petitioner's Ground Eleven, he asserts trial counsel should have objected to the prosecutor's closing argument that Petitioner made a living by using a gun. Petitioner contends trial counsel was ineffective for failing to do so. The record shows the prosecutor made the following statements at the end of his closing argument:
I would just note for you to consider is that you got the victim out there, working a second job, trying to support his family and he's just trying to use a paint brush to do that. On the other hand, you have this Defendant, Eugene Thomas, who goes out and his tool, his way of earning a living is by using that gun, right there and just taking a crime—taking an opportunity to rob the victim.[ECF No. 9-1 at 314]. It is not clear why trial counsel did not object to that portion of the State's argument. Again, the record is not fully developed as to trial counsel's strategy or lack thereof; however, the transcript shows that trial counsel objected one other time during the State's closing argument because the prosecutor referenced facts trial counsel asserted were not in evidence. [See ECF No. 9-1 at 306]. As discussed previously, trial counsel is presumed to have provided competent representation. Counsel's decisions in handling opening and closing arguments are given particular deference. See Cunningham v. Wong, 704 F.3d 1143, 1159 (9th Cir. 2013) (quoting United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993)) ("'Because many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements, the failure to object during closing argument and opening statement is within the 'wide range' of permissible professional legal conduct.'"). There is insufficient evidence to overcome the presumption that counsel provided competent representation. Moreover, even if the comments by the prosecutor were improper and objectionable, Petitioner has failed to establish that they "so infected the trial with unfairness as to make the resulting conviction a denial of due process." See Donnelly v. DeChristoforo, 416 U.S. 637 (1974). As such, he has failed to meet his burden under Martinez and show a substantial claim of ineffective assistance of trial counsel.
In the alternative, Petitioner must show a miscarriage of justice. To demonstrate a miscarriage of justice, Petitioner must show he is actually innocent. Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 622 (1998). Petitioner has failed to demonstrate any miscarriage of justice that could excuse the procedural bar of Grounds Two through Four or Grounds Six through Eleven.
For all of the above reasons, Petitioner has failed to show cause and prejudice or a miscarriage of justice to excuse the procedural bar of the remaining grounds in his petition. Accordingly, the procedural default of these grounds must stand. The undersigned therefore recommends granting summary judgment as to Grounds Two through Four and Grounds Six through Eleven. III. Conclusion and Recommendation
The undersigned hereby grants Petitioner's motion to amend. [ECF No. 26]. Additionally, for the foregoing reasons, the undersigned recommends Respondent's motion for summary judgment [ECF No. 10] be granted and the petition be dismissed with prejudice.
IT IS SO RECOMMENDED. January 10, 2020
Columbia, South Carolina
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).