Opinion
Civil Action 6:23-cv-4220-JDA-KFM
07-23-2024
Earnest Vaughn, Petitioner, v. Warden Turbeville Correctional Institution, Respondent
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
The petitioner, a state prisoner proceeding pro se, 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 posttrial petitions for relief and submit findings and recommendations to the district court.
BACKGROUND
The petitioner is currently incarcerated at Turbeville Correctional Institution in the South Carolina Department of Corrections. In May 2016, the Greenwood County Grand Jury indicted the petitioner for one count of trafficking in methamphetamine greater than ten grams but less than twenty-eight grams, one count of possession with intent to distribute marijuana, and one count of unlawful neglect of a child (doc. 27-5, PCR App. pp. 844-46, 853-54). From October 31 to November 2, 2016, a jury trial was held in the Greenwood County Court of General Sessions with the Honorable Donald B. Hocker, Circuit Court Judge, presiding (doc. 27-3, PCR App. pp. 262-630). The petitioner was represented by Jane Merrill, and the State was represented by Assistant Solicitors Micah Black and Elizabeth White of the Eighth Circuit Solicitor's Office. At the conclusion of trial, the jury convicted the petitioner of one count of trafficking methamphetamine greater than ten grams but less than twenty eight grams and one count of unlawful neglect of a child and acquitted the petitioner of one count of possession with intent to distribute marijuana (doc. 27-5, PCR. App. pp. 855-56). Following the verdict, the trial judge deemed that the petitioner's trafficking conviction would be his third offense and sentenced the petitioner to a term of imprisonment for thirty years, as well as an additional consecutive term of imprisonment for ten years for the petitioner's unlawful neglect of a child charge for an aggregate sentence of imprisonment for forty years (id., pp. 850, 852).
Underlying Case Facts
At trial, testimony showed that on January 27, 2016, officers with the Greenwood County Sheriff's Office utilized the services of a confidential informant, Debbie Tucker, to arrange a controlled buy of methamphetamine (doc. 27-3, PCR App. p. 349). Ms. Tucker made a phone call to Brandy Wilson and arranged to purchase a half ounce of methamphetamine from the petitioner and Ms. Wilson at a car wash in Greenwood that evening (id., pp. 366-67). Police were told by Ms. Tucker that they should be looking for a dark colored Chevrolet Tahoe (id., p. 350). Law enforcement arrived early to set up surveillance at the buy location. Before Ms. Tucker could arrive, a dark colored Chevy Tahoe arrived driven by Ms. Wilson (id., p. 351). The petitioner was in the passenger seat, and the petitioner's five-year-old grandchild was in the back (id., p. 488). Law enforcement called off the controlled purchase and initiated a traffic stop on the Tahoe (id., pp. 351, 370). The petitioner was seen “fidgeting” by law enforcement, and it appeared to Captain Jarvis Reeder that the petitioner was attempting to hide something (id., pp. 487-88). The petitioner was read his Miranda rights, and he made a statement to law enforcement admitting that he did have drugs in his pants near his testicles (id., pp. 490-92). Law enforcement then searched the petitioner and located two plastic bags of suspected drugs underneath his testicles (id., p. 494). The petitioner was then placed under arrest.
Trial counsel conducted pretrial motions to suppress the drugs found in the petitioner's possession. She further moved to suppress his statement to police and challenge the reliability of the confidential informant (doc. 27-3, PCR App. pp. 279-81, 310-13, 319-23, 326-27). The trial court heard the testimony of the presented witnesses, denied the various motions, and admitted the disputed evidence (id., pp. 270-339).
At trial, Officers Josh Hood and Chad Cox and Captain Reeder each testified about finding drugs in the petitioner's crotch area (doc. 27-3, PCR App. pp. 406-07, 419, 494). Furthermore, Captain Reeder testified that the petitioner made a Mirandized statement admitting he had drugs inside his pants (id., pp. 490-92). Ms. Wilson also testified the petitioner sent her a letter after the arrest encouraging her to make statements to the petitioner's attorney regarding the petitioner's lack of culpability (id., pp. 453-54). The petitioner specifically urged Ms. Wilson to tell his attorney that Ms. Tucker had sold them a camper with drugs inside of it and that they were merely returning Ms. T ucker's drugs to her (id.).
Officer Bryan Louis also testified about his involvement with the arrest. Officer Louis was asked by the State: “Were Ms. Wilson and Mr. Vaughn placed into custody?” (doc. 27-3, PCR App. p. 386). Officer Louis responded: “They were. I had an active arrest warrant for Mr. Vaughn from a previous incident” (id.). The petitioner's attorney immediately objected, and the objection was sustained (id.). After a short conference outside the presence of the jury (id., pp. 386-90), the trial judge issued the following curative instruction on the matter:
Ladies and gentlemen, the last testimony offered that was objected to by Defense that there was an active arrest warrant. The existence of that should not be considered by you at all. It should not even come up during your deliberations, and it should not even be discussed in the jury room when you begin your deliberations. That is not evidence for you to consider. We are here on three charges and three charges only, and it's those three charges that you are to consider and nothing else.(Id., p. 390). The State did not mention the active arrest warrant for the rest of the trial, nor did it attempt to do so. The jury later found the petitioner guilty on two of three counts: trafficking methamphetamine greater than ten grams but less than twenty eight grams and unlawful neglect of a child (doc. 27-5, PCR. App. pp. 855-56).
Direct Appeal
The petitioner timely filed a notice of appeal (doc. 27-5, PCR App. pp. 85761). Appellate Defender Taylor D. Gilliam of the South Carolina Commission on Indigent Defense - Office of Appellate Defense submitted a final brief on behalf of the petitioner (doc. 27-3, PCR App. pp. 665-76). On December 11, 2017, Assistant Attorney General J. Scott Mathews filed the respondent's final brief (id., pp. 677-93). The petitioner raised the following issue on appeal: “Did the trial court err in failing to declare a mistrial based upon the mention of an active arrest warrant in Appellant's name which was unrelated to his trial and improperly influenced the jury to decide the case on prejudice instead of the evidence presented?” (id., p. 668). On November 7, 2018, in an unpublished opinion (No. 2018-UP-409), the South Carolina Court of Appeals affirmed the petitioner's conviction (id., pp. 694-95). Subsequently, on November 27, 2018, the remittur was issued to the Greenwood County Clerk of Court (id., p. 696).
Post-Conviction Relief Application, Hearing, and Order
The petitioner submitted a pro se application for post-conviction relief (“PCR”) along with several pro se amendments (doc. 27-1, PCR App. pp. 1-30). On May 3, 2019, PCR counsel Ashley A. McMahan was assigned to represent the petitioner (id., p. 31). On March 3, 2020, the petitioner through PCR counsel submitted an amended application alleging the following claims:
1. Ineffective Assistance of Counsel of Jane H. Merrill, Esquire:
a. Trial counsel failed to adequately cross-examine and challenge the officer related to the tainted evidence that was seized by police. When the drugs were initially turned in the officer noted there were 18 grams but then later supplemented it with 3.4 grams that were found on the floor.
b. Trial counsel failed to recuse Judge Hocker from presiding over the trial as Judge Hocker had already shown bias against the Applicant when he at an excessive bond of $100,000 (that was later reduced to $20,000). Judge Hocker also had forced the Applicant to take a drug test.
c. Trial counsel failed to adequately move for a mistrial after one of Applicant's family members made contact with a juror in the bathroom.
d. Trial counsel should have not allowed the Applicant's prior overturned conviction to be mentioned during sentencing.
e. Trial Counsel failed to adequately challenge the chain of custody on the substances seize from the Applicant. The chain of custody on these drugs was broken. The date on the drugs were taken to SLED and received by SLED are different dates. Furthermore, Josh Hood admitted to detaining and searching the Applicant without consent or without a search warrant.
f. T rial Counsel failed to challenge the State's witness about the deal she was making with the State to testify at the Applicant's trial.
g. Trial Counsel failed to adequately challenge the issue related to the dash-cam and its lack of audio at certain points.
2. Ineffective Assistance of Appellate Counsel as to Assistant Appellate Defender Taylor D. Gilliam:
a. Counsel failed to raise valid and preserved arguments on appeal, particularly that the Court erred in failing to suppress the tainted drugs that were seized by police.
b. Failed to petition the issue related to the mistrial to the Supreme Court.
3. Prosecutorial Misconduct as to Micah E. Black:
a. Mr. Black intentionally withheld the criminal record of the informant, Debbie Rucker. Furthermore, Mr. Black falsely indicated to the Court that the Applicant had made death threats against the informant.
b. Mr. Black failed to turn over as part of Discovery, the report made by Gregory Allison where Allison admitted to finding a bag of substance on the floor of his office and adding it to the
contents of the Applicant's case. (Please see attached supplemental report obtained by the Applicant.)
c. Mr. Black attempted to withhold the field test of the substance seized from the Applicant at the time of his arrest that shows that the substances tested negative for drugs.(Id., pp. 74-75).
The Honorable J. Mark Hayes, II, conducted an evidentiary hearing on March 12, 2020, at the Laurens County Courthouse (doc. 27-1, PCR App. pp. 79-175). At the outset of the hearing, Ms. McMahan noted the petitioner's pro se amendments to his application that would not have been recognized by the State (because they were amendments filed by the petitioner after he was represented by counsel). Ms. McMahan noted that she tried to consolidate the plaintiff's three pro se amendments as much as possible into the amended application for PCR (id., pp. 82-84). The court acknowledged the matter and made them part of the record (id.).
The petitioner began his testimony at the PCR hearing by asserting that his trial counsel, Ms. Merrill, was not prepared for trial and, specifically, that she did not have all of the discovery from the State. He further asserted that she did not adequately challenge Officer Greg Allison about drugs that were found on the floor of Officer Allison's office. The petitioner alleged that Officer Allison changed his testimony at trial to say that the drugs were not found on the floor, but there was just a logging error. According to the petitioner, Officer Allison allegedly told the petitioner's previous trial counsel, Aaron Taylor, that he found the baggie on his office floor the morning following the petitioner's arrest and then added it to the inventory of drugs in the petitioner's case (doc. 27-1, PCR App. pp. 86-87).
Officer Allison testified at trial that the evidence in question was one of numerous baggies of drugs, and it had been properly processed, packaged, labeled and secured by law enforcement (doc. 27-3, PCR App. p. 512). It simply had not been logged in, and the error was corrected via the supplemental report (id.).
The petitioner next took issue with Judge Hocker concerning his bond. He alleged that Judge Hocker was biased against him and gave him a harsher sentence because he repeatedly denied the petitioner bond and because Judge Hocker forced him to take a drug test prior to the start of trial. The drug test was ordered over the objection of trial counsel because Judge Hocker believed the petitioner was doing drugs. The petitioner alleged error on the part of counsel for not moving to have Judge Hocker recused (doc. 271, PCR App. pp. 88-89). On cross-examination, the petitioner conceded that his drug test was positive for amphetamine, but he argued that such could have been the result of over-the-counter medications, blood pressure medications, or COPD medications (id., pp. 121-22).
The petitioner next argued to the PCR court that a juror approached his granddaughter in the bathroom during the course of the trial and that his granddaughter told the juror that “she didn't want her papa to go to jail.” The juror, Ms. Carter, told the bailiff once she realized it was the defendant's granddaughter. Ms. Carter stated that the granddaughter approached her and stated “that it was her daddy.” The petitioner testified that he believed Ms. Carter was lying because his granddaughter called him “Papa” and not “Grandaddy.” The petitioner believed counsel was ineffective because she did not take a position on the matter when asked by the court, and Ms. Carter was allowed to remain on the jury (doc. 27-1, PCR App. pp. 90-91; see doc. 27-4, PCR App. p. 775).
The petitioner next argued for relief on the basis of Ms. Merrill's handling of the chain of custody of the drugs in his case. The petitioner believed the evidence had been altered and testified that two officers who had arrested him on a previous charge were arrested and fired for embezzling and misconduct. He testified that the officers that arrested him in connection with this case were also involved in that matter. The petitioner stated the charge was dismissed a month before he went to court and that Ms. Merrill failed to object to it being brought up at the suppression hearing. The petitioner testified that his attorney did object to the use of the “sham” arrest warrant as the basis for probable cause for the stop, but she did not challenge Officer Hood's alleged admission that he detained and searched the petitioner without consent (doc. 27-1, PCR App. pp. 91-95). He further alleged that counsel failed to adequately address the fact that the confidential informant, Ms. Tucker, received leniency for her assistance or that she had been signed up by the same two dismissed officers (id., pp. 97-98). The petitioner testified that the warrant was a sham warrant because the officers unlawfully stopped his vehicle and lied that they had a warrant for the driver of the vehicle. He testified that he explicitly asked that his trial counsel litigate this issue and that Ms. Merrill should have moved to “separate” the charges (id., pp. 93-94). The petitioner wanted the sham warrant put on the docket so that his attorney could have challenged it (id., p. 94).
The last issues the petitioner raised against Ms. Merrill related to the audio/video dash camera footage and his desired witnesses. He alleged that the altered footage removed the petitioner asking for an attorney and that it also removed Captain Reeder threatening and questioning him. The petitioner alleged that Ms. Merrill should have objected to the dash camera footage (doc. 27-1, PCR App. pp. 99-101). He further testified that Ms. Merrill subpoenaed five witnesses that he provided to her, but that they did not show up to court (id., p. 116).
The petitioner also raised allegations of ineffective assistance against appellate counsel Taylor Gilliam. The petitioner alleged that Mr. Gilliam failed to raise preserved issues on appeal that would have addressed Fourth Amendment violations regarding the unlawful traffic stop and the issue concerning the chain of custody. The petitioner argued that - contrary to his express instruction - Mr. Gilliam did not brief every preserved issue on appeal (doc. 27-1, PCR App. pp. 101-04).
The petitioner also raised issues sounding in prosecutorial misconduct. Specifically, he disputed Assistant Solicitor Black's use of a conviction against him at sentencing that he believed to be expunged (doc. 27-1, PCR App. pp. 88-89). He further claimed that Assistant Solicitor Black tampered with co-defendant witness Ms. Wilson by persuading her to recant her favorable statement toward the petitioner for dismissal of various criminal charges against her (id., p. 98). He alleged that Assistant Solicitor Black withheld the prior record of informant Ms. Tucker, attempted to revoke the petitioner's bond in an effort to coerce a plea, and delayed the production of discovery materials until the last minute (including chain of custody documents and supplemental reports). The petitioner alleged that law enforcement also failed to record their informant's phone call, despite having the ability to do so (id., pp. 108-09).
On cross-examination, the petitioner conceded that Ms. Merrill reviewed the State's discovery with him, but he denied that she went over the elements of the crimes for which he was charged or discussed what trial strategies they could pursue. He admitted that he understood his charges and that Ms. Merrill made him aware of the ramifications of the charges if he was convicted (doc. 27-1, PCR App. pp. 118-20). The petitioner denied admitting to Captain Reeder that he had drugs on his person and alleged that this was why officers took the sound out of the dash camera video (id., pp. 120-21).
The petitioner's trial counsel, Ms. Merrill, testified at the PCR hearing that she had been practicing law for more than eight years at the time of her appointment to represent the petitioner and approximately one third of her practice consisted of criminal defense work. She testified that she was appointed to the petitioner's case on June 16, 2016, she held her first meeting with the petitioner on June 29, 2016, and she felt that she had adequate time to prepare for his trial that commenced on October 31,2016 (doc. 27-1, PCR App. pp. 123-25). She met with the petitioner multiple times, with most meetings lasting an hour or longer (id., p. 129). She testified that she reviewed the elements of the charges and the sentencing he could face if convicted (id., p. 138). Ms. Merrill characterized the State's case against the petitioner as a strong case (id., p. 147). She received a plea offer of fifteen years from the State and discussed it with the petitioner several times, but he did not choose to accept it (id., p. 138).
Ms. Merrill testified that Assistant Solicitor Black provided her with letters between the petitioner and co-defendant Wilson. She reviewed the letters with the petitioner but noted that she and the petitioner disagreed about using those letters at trial. She believed they were extremely harmful to the petitioner's defense, but the petitioner did not agree (doc. 27-1, PCR App. pp. 125-29). Ms. Merrill reviewed the indictments and warrants, but she did not see any facial deficiency that she could challenge (id., p. 131). Ms. Merrill also saw no reason to seek Judge Hocker's recusal and possessed no notes from the petitioner asking her to do so (id., pp. 133-34). She testified that the petitioner was ordered to take a drug test because during the first part of the trial he appeared to be asleep or not paying attention. Ms. Merrill asked the jailers if he was exhibiting the same behavior while incarcerated, and they stated that he had not been exhibiting those symptoms. This caused her some concern. Judge Hocker requested the drug test, and Ms. Merrill testified that she did object. The petitioner believed his drowsiness was the result of his COPD medication (id., pp. 134-35).
Ms. Merrill recalled that the juror incident took place on November 2nd. She testified that the petitioner's granddaughter had approached the juror in the bathroom; the granddaughter asked Ms. Carter if she was a juror and expressed a desire to speak with her. Ms. Carter in turn got a message to the bailiff, and Judge Hocker questioned the juror on the incident and whether it impacted her ability to be fair and impartial. The State moved to dismiss the juror, but Ms. Merrill chose not to take a position on the matter (doc. 27-1, PCR App. pp. 136-38).
Ms. Merrill testified that she did have a supplemental report that questioned the chain of custody, but she believed that harping on the issue would only highlight the quantity of drugs to the jury. She did not see any issues that she could have effectively challenged regarding the chain of custody or the SLED officer's testimony (doc. 27-1, PCR App. pp. 139-40). She testified that she did question the confidential informant, Ms. Tucker, about her testimony leading to a favorable deal with the solicitor's office (id., p. 141). Lastly, Ms. Merrill addressed the other remaining allegations. She testified affirmatively that: 1) no one at the solicitor's office altered the dash camera video or audio, 2) that the petitioner's charge was his third offense and that no expunged conviction was used against him, and 3) that the sham warrant issue was a separate and unrelated charge for which she did not represent the petitioner (id., p. 141-44).
On cross-examination, Ms. Merril gave a background on the facts of the buy-bust case. She testified that she did not recall anything about “field tests” and noted that SLED conducts separate tests from the field tests. She also surmised that it might have related to the marijuana charge for which the petitioner was ultimately acquitted (doc. 27-1, PCR App. p. 146). She testified that she filed a Rule 5/Brady motion, and the State responded quickly (id., pp. 146-47). She testified that she attempted to suppress the drugs, but the judge denied her motion. On redirect, she testified again that she did not see any issue with the chain of custody and that the issue was adequately testified to at trial (id., p. 152). She further testified to Ms. Black's (SLED) testimony and their failure to test all thirteen baggies of drugs (id., p. 154).
As noted by the respondent, testimony suggests that there were actually fourteen total baggies.
Assistant Solicitor Micah Black testified that he worked with the Eighth Circuit Solicitor's Office and prosecuted the petitioner's case. He believed he had a very strong case against the petitioner that resulted from a bust-buy operation performed by law enforcement. He testified to his understanding that the petitioner and Ms. Wilson arrived on scene before the confidential informant did, so law enforcement made the decision to go ahead and perform a stop. The petitioner had an outstanding warrant for possession of methamphetamine, and the officers were able to identify the petitioner from inside his vehicle (doc. 27-1, PCR. App. pp. 156-57). Mr. Black testified that under the circumstances they would not be able to hear audio from a dash camera video due to the setup and range of the microphone that is attached (id., pp. 157-58). He further testified that he complied with Ms. Merrill's Rule 5 motions and noted that his efforts included correcting one matter at trial concerning incorrect information about the identity of the confidential informant and providing the supplemental report from Officer Allison. On cross-examination, Mr. Black testified that the supplemental report was turned over as part of the Rule 5 discovery the Solicitor's Office sent out and that the prosecutors spoke with Officer Allison to confirm their understanding of the report (id., pp. 164-66).
Mr. Black testified that the informant had received death threats after being subpoenaed to testify, but he did not testify that those threats came from the petitioner. This information was communicated to the trial court outside the presence of the jury (doc. 27-1, PCR App. pp. 158-61). On cross-examination, Mr. Black could not recall precisely when the informant's information was turned over to Ms. Merrill - only that it was the first part of the week before the informant testified. He testified that the delayed release of such information was to protect the safety of the informant (id., pp. 162-65). Mr. Black testified that he could not recall what the confidential informant pled to in exchange for her help and testimony, but regardless, he did not coerce any witness to testify in a certain way or untruthfully (id., pp. 163-65)
Mr. Black further testified that he did not recall a “field test” issue in this case and that his office could not rely upon field test results so the drugs would have to be tested by SLED regardless (doc. 27-1, PCR App. p. 158). Mr. Black testified that two items were sent to SLED: items 1.1 and 1.2. Item 1.1 was a Ziploc bag containing four baggies of a crystal type substance; this item was labeled “methamphetamine found in the sample tested; four tested.” The total weight was 13.51 grams, which Mr. Black testified was the threshold for the petitioner's charge of ten to twenty-eight grams. Item 1.2 contained fourteen Ziploc baggies containing 3.44 grams of methamphetamine. Only one bag was tested, and the analyst at trial testified that all the baggies appeared to contain the same substance (id., pp. 161-62). Mr. Black testified that since the “weight still kept it in that threshold of 10 to 28 grams,” “[t]here was really no need for her to test every single one of those 14 bags” (id.). On cross-examination, Mr. Black testified that regardless of whether a field test is completed or returned negative, it is the SLED results that control (id., pp. 16263). Regarding the alleged sham warrant for possession of methamphetamine, Mr. Black testified that the warrant was ultimately dropped and was otherwise rendered unenforceable due to a change in the law (id., pp. 166-67).
Specifically, Assistant Solicitor Black testified that, to the best of his memory, the alleged sham warrant came about when the plaintiff overdosed and law enforcement found methamphetamine in the room (doc. 27-1, PCR App. p. 167). He testified that the warrant was ultimately dismissed after the petitioner was convicted at trial of the charges at issue here, and prosecution of that charge was prevented because “case law came out . . . that basically said if somebody overdoses and EMS has to come out and tend to a person, you can't really use that to charge somebody” (id., pp. 166-68).
Appellate Counsel Taylor Gilliam testified that he is an Assistant Appellate Defender and was assigned to represent the petitioner on appeal. Mr. Gilliam's log demonstrated that he spoke with the petitioner seven times over the course of his representation, and he explained his conversations with the petitioner. Mr. Gilliam chose to raise one issue on appeal regarding the motion for mistrial following the mention of an active arrest warrant in the petitioner's name. He did not see any other meritorious issues within the record, and the petitioner did not bring up any other issues he believed should be pursued (doc. 27-1, PCR App. pp. 169-71). On cross-examination, Mr. Gilliam testified that he saw no basis to seek certiorari following the Court of Appeals' opinion affirming the petitioner's conviction. He did not recall the petitioner bringing up any other issues to pursue, including the sham warrant and chain of custody matters. Mr. Gilliam testified that just because an issue is preserved does not mean it has merit on appeal and that raising meritless arguments on appeal can potentially weaken an appellant's other arguments (id., pp. 171-73).
On April 28, 2020, the PCR court issued an order of dismissal denying relief (doc. 27-2, PCR App. pp. 223-51).
PCR Appeal
The petitioner next sought to appeal his denial of PCR relief. Attorney Scarlet B. Moore was appointed to represent the petitioner in his PCR appeal. On January 21, 2021, counsel for the petitioner filed a Johnson petition articulating that she could find no meritorious grounds for appeal, seeking an order to be relieved as counsel, and raising under Johnson the following single issue for appellate review: “Did the trial court commit reversible error in denying the petitioner's Post-Conviction Relief petition, and are there any arguable or non-frivolous legal arguments to further in this Honorable Court based on the entire record of this case?” (doc. 27-6, p. 3). On February 10, 2021, the petitioner then filed a pro se response (doc. 27-7). Therein, the petitioner raised the following grounds, in pertinent part, verbatim, albeit unnumbered and intermingled with other commentary:
The Supreme Court of South Carolina “has approved the withdrawal of counsel in meritless post-conviction appeals, provided the procedures outlined in Anders v. California, 386 U.S. 738 (1967), were followed.” Johnson v. State, 364 S.E.2d 201, 201 (S.C. 1988) (parallel citations omitted). The state court adheres to this requirement even though the United States Supreme Court has held, in Pennsylvania v. Finley, 481 U.S. 551 (1987), that such a review is not required. Id.
1. Greenwood Co. prosecutor Micah Black and Ass. Gen. Breanna Schill has blocked these constitutional violations from being properly heard in the trial, the direct appeal and my PCR. They have conspired with each court appointed lawyer to not challenge the constitutional violations in my case.
2. The trial court erred by denying the defense motion to suppress tainted and fabricated evidence as fruit of the poisonous tree.
3. The trial court stated that police had a legal, unchallenged warrant for the petitioner's arrest. “This was based on hearsay” and trial counsel was, “ineffective for failing to object.”
4. The State also never tried to enter this pre-text (sham) arrest warrant into evidence due to the fact that “they had no evidence to support it.”
5. Trial counsel was also ineffective for failing to object to Ms. Tucker's testimony.
6. Therefore, this traffic stop violated the 4th amendment and trial counsel allowed the police to fish for a reason to justify the traffic stop and a reason to justify the detention of the petitioner as a passenger of the vehicle.
7. This traffic stop violated the 4th amendment under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), and this should have been resolved in the Court of Appeals.
8. Mr. Gilliam was also advised that the detention and search of petitioner by Officer Josh Hood also violated the 4th amendment under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961).
9. Petitioner did not waive any issues raised on the PCR application or the pro/se amendments as stated in Judge Hayes order.
10. Ass. Att. Gen. Breanna Schill conspired with PCR lawyer Ashley McMahan to amend the PCR applicant and to not list all of the issues and constitutional violations in her amendment. . . . This misconduct by Ms. Schill and Ms. McMahan violates due process and it denied the petitioner equal protection of the laws and denied petitioner a full and fair PCR hearing.
11. Prosecutor Micah Black forged the indictments without a grand jury seal in 2016 and he got Chasity Copeland to stamp it True Copy. Then in 2020 after he found out it was being raised in the PCR he rubber stamped it and “got Angela Woodhurst to stamp it as True Copy again.”
12. The petitioner will present Exhibit B that shows that the petitioner was denied the right to challenge the chain of custody in the trial by Judge Hocker, the Prosecutor Micah Black, and “defense counsel Jane Merrill.”
13. Trial counsel was intentionally ineffective for failing to suppress this tainted evidence. It also shows that no-one from SLED signed the chain as receiving it. “Only signed by Gregg Allison.”
14. Therefore this violated the petitioners 6th and 14th amendment rights.
15. Exhibit C shows that the prosecutor Micah Black vouched for the credibility of a States witness (Brandy Wilson) even though he knew she was lying under oath just to get some charges dismissed against her. This vouching was done during closing argument and it violates the 6th amendment under Vaughn v. State, 362 S.C. 163, 169, 607 S.E.2d 72 (2004).
16. The police and prosecutors also violated the petitioners 5th amendment rights by tampering with the dashcam video, cutting it down to 19 to 21 minutes and suppressing the audio where the petitioner asked for a lawyer before questioning and it would have shown the petitioner did not give a mirandized statement.(Id., pp. 2-7).
The matter was transferred to the South Carolina Court of Appeals on March 4, 2021 (doc. 27-8). The petitioner then proceeded to file four additional pro se responses between March and September of 2021 (docs. 27-9, 27-10, 27-11, 27-12). The Court of Appeals denied certiorari and relieved counsel on November 21,2022 (doc. 27-13), and the remittitur was issued on December 7, 2022 (doc. 27-14). The petitioner next filed a document dated December 8, 2022, with the South Carolina Supreme Court (doc. 27-15). This document was construed as a petition for writ of certiorari to review the decision of the Court of Appeals (id.). However, the Supreme Court found that the pleading was not permissible because the petitioner had failed to file a petition for rehearing with the Court of Appeals. Accordingly, the Supreme Court denied the petition on December 20, 2022 (doc. 27-16).
Federal Petition
In his pro se federal petition now before the court, the petitioner makes the following claims of error (verbatim):
Ground One: Illegal traffick stop, Illegal detention of person Illegal search, violation of 4th amendment U.S. Const.
Police stated they made traffic stop on, “false information” that Laurens County had an active arrest warrant for the driver of vehicle. Then claimed petitioner talked to CI about a drug deal (false testimony) CI testimony enclosed. Then claimed they had an active warrant for petitioner during stop. False testimony also (pre-text). See testimony of Josh Hood also enclosed who also admitted illegal search.
Ground Two: Tainted evidence, broken chain of custody
Greg Allison testified he packaged evidence on March 2nd 2016 He was led by prosecutor Ms. White to change his testimony to February 8 2016 that is listed on a fabricated chain of custody. SLED never tested any evidence. There was no lab results and no-one from SLED signed the chain of custody. SLED's Lynn Black lied under oath about testing of drugs. Petitioner raised this issue during trial pro/se, because trial counsel wouldn't.
Ground Three: Subject Matter Jurisdiction
Prosecutor Micah Black forged these indictments (copies encl); on May 6th 2016 and rushed this case to trial on Oct. 31st 2016. The Court calander for the 8th judicial circuit court will show that there was no court of General Sessions on May 6th 2016 and no grand jury was empaneled under jurisdiction of that court for the lawful return of an indictment. No True Bill Stamp or grand jury seal. Copies of indictments enclosed. Can be raised anytime by law.
Ground Four: Ineffective Assistance of trial counsel Jane Merrill
Trial counsel admitted she was trying this case without co-counsel. She failed to object when prosecutor Micah Black admitted to tampering with dash cam video cutting it down to 19 minutes and suppressing the audio. She admitted she would not challenge broken (fabricated) chain of custody. She also
failed to object to the prosecutors vouching for state witness during closing argument.
Ground Five: Marinda Violation 5th amend U.S. Const.
Police falsly claimed petitioner made a statement to police and conspired with prosecutor Micah Black to request a Jackson v. Dino hearing. The State had no statement to suppress. The petitioner never made any statement. No audio or a written statement.
The prosecutor tampered with the dash-cam video and took the audio sound out at the point when Marinda was read. Petitioner stated, I will not answer any questions without my lawyer present. Trial counsel was ineffective for failing to object to holding a Jackson v. Dino hearing.(Doc. 7-1, pp. 5-16).
Jackson v. Denno, 378 U.S. 368 (1964).
The respondent filed a return and motion for summary judgment on January 11,2024 (docs. 27, 28). On January 12, 2024, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the petitioner was advised of the motion to dismiss and motion for summary judgment procedures and the possible consequences if he failed to respond adequately to the respondent's motion (doc. 29). The petitioner filed his response in opposition on January 26, 2024 (doc. 31), along with additional attachments on February 1 and 13, 2024 (docs. 33, 39). The respondent then filed a reply on February 2, 2024 (doc. 34). On June 24, 2024, the petitioner filed a motion for hearing and to appoint counsel (doc. 45), and the respondent filed a response in opposition on July 8, 2024 (doc. 49). Accordingly, this matter is ripe for review.
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); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 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, 410 (2000). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision,” and “even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Harrington v. Richter, 562 U.S. 86, 101-102 (2011) (citations omitted). 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).
Exhaustion and Timeliness
The respondent admits that the petitioner technically meets the exhaustion requirements of 28 U.S.C. § 2254 (b)(1)(A) as he filed and perfected a direct appeal and filed a PCR application and PCR appeal (doc. 27 at 8-9). The respondent also does not rely upon the statute of limitations as a defense in this matter (id. at 11).
Procedural Default
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner seeks habeas corpus relief on an issue after he 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.
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, 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 v. Thompson, 501 U.S. 722, 750 (1991)). A fundamental miscarriage of justice equates to the conviction of someone who is actually innocent. However, “actual innocence” requires “factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998).
In Martinez v. Ryan, 566 U.S. 1, 9 (2012), the United States Supreme Court carved out a “narrow exception” that modified the “unqualified statement in Coleman [501 U.S. at 754-55] that an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default.” In Martinez, the Court
read Coleman as containing an exception, allowing a federal habeas court to find “cause,” thereby excusing a defendant's procedural default, where (1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective assistance of trial counsel [claim] ... be raised in an initial-review collateral proceeding.”Trevino v. Thaler, 569 U.S. 413, 423 (2013) (quoting Martinez, 566 U.S. at 14-18). The Court in Martinez also noted:
When faced with the question whether there is cause for an apparent default, a State may answer that the ineffective-assistance-of-trial-counsel claim is insubstantial, i.e., it does not have any merit or that it is wholly without factual support, or that the attorney in the initial-review collateral proceeding did not perform below constitutional standards.566 U.S. at 15-16.
Ineffective Assistance of Counsel
To be entitled to relief on an ineffective assistance 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. Stricklandv. 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 (1970)). There is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions in the case. Id. at 690. With regard to guilty pleas, “in order to satisfy the ‘prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
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 v. Richter, 562 U.S. 86, 104 (2011) (internal citations omitted).
Ground One
In Ground One, the petitioner asserts a freestanding claim of violation of his Fourth Amendment rights against unreasonable search and seizure. The respondent argues that such a claim is not cognizable on federal habeas review under the Stone doctrine because South Carolina's court system gave the petitioner an adequate opportunity to litigate the Fourth Amendment issue (doc. 27, pp. 14, 25-27). The undersigned agrees. Stone v. Powell, 428 U.S. 465, 481-82 (1976) (“[W]here the 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.” (footnote omitted)).
As noted by the respondent, the petitioner essentially argues that the traffic stop and search and seizure procedure violated his Fourth Amendment rights due to the reliance upon what he calls a sham arrest warrant (doc. 27, p. 26). The petitioner has not shown any impediment to his ability to fully and fairly litigate his claim in state court. Rather, the record shows that the petitioner's trial attorney moved to suppress the drugs that resulted from the search and seizure, arguing that law enforcement used the arrest warrant to “skirt around” a lack of probable cause to make a traffic stop (doc. 27-3, PCR App. pp. 273-75, 327-35). The argument did not persuade the court, and the motion was denied (id., p. 335).
Assistant Solicitor Black provided further information in the PCR hearing regarding the disputed warrant. He testified that the buy-bust had been set up, but the petitioner and co-defendant Ms. Wilson arrived before the confidential informant. Mr. Black testified that there was an outstanding warrant for the petitioner for possession of methamphetamine (referred to by the petitioner as the “sham” arrest warrant). With that warrant available and identifications made, the officers were able to make a stop. When searched pursuant to the arrest, the petitioner was found to have methamphetamine on his person (in his groin area) (doc. 27-1, PCR App. pp. 166-67; see also doc. 27-3, PCR App. pp. 279-81,310-13, 319-23). The trial court found no issue with the warrant and therefore found no basis to grant the petitioner's pretrial motion to suppress (doc. 27-3, PCR App. p. 335). Additionally, the PCR court found the petitioner's testimony on this matter (in the context of handling an ineffective assistance of counsel claim) was credible only to the extent that he admitted his trial counsel made an argument to the trial court that the drugs should be suppressed (doc. 27-2, PCR App. pp. 241-42).
As noted above, Mr. Black testified that the warrant in question was ultimately dismissed after the petitioner was convicted of the charges at issue herein (doc. 27-1, PCR App. pp. 166-68).
Here, the petitioner raised his Fourth Amendment challenges to the warrant and search and seizure at trial and had a full opportunity to raise them on appeal. He has not shown any impediment to his ability to fully and fairly litigate his claims in state court. Accordingly, because this ground for relief is barred by the Stone doctrine, the undersigned recommends that the respondent's motion for summary judgment be granted as to Ground One.
Ground Two
In Ground Two, the petitioner seeks to address the chain of custody of the confiscated drugs and the veracity of witness testimony (Officer Greg Allison and Lynn Black of SLED). He contends that Assistant Solicitor Black led Officer Allison to change his testimony so that it corresponded with the “fabricated chain of custody,” SLED never tested any evidence, and Ms. Black “lied under oath about testing of drugs” (doc. 7-1, p. 7). As argued by the respondent (doc. 27, pp. 14, 27), these are direct appeal issues, and thus the claims are procedurally defaulted based on the petitioner's failure to raise the issues in his direct appeal. In response to the motion for summary judgment, the petitioner argues that he informed his direct appeal counsel of these issues that he wanted to pursue in his appeal, but his counsel did not raise the issues (doc. 31, pp. 1-4). The petitioner further contends that his appeal counsel “lied under oath” in the PCR hearing when counsel testified that he and the petitioner did not discuss any other issues that the petitioner wanted counsel to raise in the direct appeal (other than the one issue that was raised) (id., pp. 3-4). As argued by the respondent (doc. 34, pp. 2-3), the petitioner has attempted to raise a new ground for federal habeas relief (ineffective assistance of appellate counsel) by way of his response in opposition to the motion for summary judgment, which is not permitted. Scantling v. Warden Lieber Corr. Inst., C. A. No. 6:19-cv-00506-SAL, 2020 WL 2614822, at *1 n.1 (D.S.C. May 22, 2020) (“'A plaintiff may not amend her complaint through argument in a brief opposing summary judgment.'” (quoting Barclay White Skanska, Inc. v. Battelle Mem' Inst., 262 Fed.Appx. 556, 563 (4th Cir. 2008))). Moreover, the petitioner's allegation that no SLED testing of the drugs took place is objectively false (see doc. 27-3, PCR App. pp. 550-60; State's Exhibits 41-44).
The respondent argues in the alternative that any such claim that the petitioner's direct appeal counsel was ineffective for failing to raise these issues is without merit (doc. 34, pp. 2-3). The undersigned agrees. Mr. Gilliam testified that he discussed the trial transcript and Fourth Amendment rights with the petitioner, but in his review of the record he did not see any other meritorious issues for appeal beyond the one issue he raised in which he contended that the trial court erred in failing to grant a mistrial upon the mention of an active arrest warrant in the petitioner's name (doc. 27-1, PCR App. pp. 169-71). He did not see any reason to appeal any issues related to the chain of custody, and he testified that he “tend[ed]” to brief only meritorious issues because, “if you include too many issues, you weaken your meritorious ones” (id., pp. 172-73). The PCR court found that appellate counsel's testimony was credible, that the petitioner's testimony was not credible, and noted the existing law that ineffective assistance does not arise simply from a failure to raise all preserved objections and appellate issues regardless of their merit (doc. 27-2, PCR App. pp. 229-30, 245-49). As such, the PCR court found the petitioner failed to meet his burden of showing that his appellate counsel was deficient and further failed to show any resulting prejudice from the alleged deficiency (id.). Under AEDPA review, that ruling was not an unreasonable application of clearly established federal law, nor was it an unreasonable finding of facts in light of the state court record.
In the last sentence of his allegations in this ground, the plaintiff states: “Petitioner raised this issue during trial pro/se, because trial counsel wouldn't” (doc. 7-1, p. 7). Liberally construed, this suggests a claim of ineffective assistance of trial counsel, which was addressed by the PCR court (doc. 27-2, PCR App. pp. 231-33). Accordingly, this claim will be addressed on the merits below.
In his amended application for PCR submitted by his PCR counsel, the petitioner alleged that his trial counsel failed to adequately cross-examine and challenge Officer Allison on the issue of tainted evidence seized by police, noting that “[w]hen the drugs were initially turned in[,] the officer noted there were 18 grams but then later supplemented it with 3.4 grams that were found on the floor” (doc. 27-1, PCR App. p. 74). The petitioner further alleged that no SLED testing of the evidence occurred and that witnesses lied in relation to the chain of custody (id., pp. 10-11,24-25, 29). The PCR court first discussed the underlying allegation of error that the petitioner seizes upon, specifically that Officer Allison excluded two bags of methamphetamine from his initial inventory count (doc. 27-2, PCR App. p. 232). One bag contained .34 grams and another contained 3.6 grams (id.). However, as noted by the PCR court, these matters were rectified via the supplemental report provided to trial counsel via her Brady/Rule 5 motion (id.). T rial counsel questioned Officer Allison about his error during cross-examination (id.; see doc. 27-3, PCR App. pp. 524-26). However, trial counsel testified at the PCR hearing that she strategically chose not to “harp” on the error because it would repeatedly bring the jury's focus to the substantial quantity of drugs that law enforcement found in the petitioner's possession (doc. 27-2, PCR App. 232; see doc. 27-1, PCR App. pp. 139-40). Moreover, the PCR court noted that trial counsel testified that she did not believe there was a meritorious argument regarding the chain of custody of the drugs and that the witnesses established chain of custody through their testimony (doc. 27-2, PCR App. pp. 240-41).
The PCR court found trial counsel “very credible” on the “tainted evidence” issue, while finding the petitioner not credible (doc. 27-2, PCR App. p. 232). Further, the PCR court noted that the initial inventory report (excluding the two bags in dispute) established a sufficient quantity of drugs by itself to support the petitioner's charges, rendering the issue unprejudicial (id., pp. 232-33). The court found that trial counsel's strategic decision was valid and reasonable (id., p. 233). The PCR court further noted that the petitioner failed to show what additional questions trial counsel should have asked Officer Allison or how any additional questioning would have changed the outcome of the case (id.). The PCR court found that the petitioner failed to demonstrate deficient performance or resulting prejudice from this matter (id.). Further, with regard to the chain of custody issue, the PCR court found trial counsel's testimony credible and the petitioner's testimony not credible, noting that trial counsel testified that “she made a motion to suppress the drug evidence based on what she felt was the most legitimate argument: that the stop was not based on the arrest warrant but was pretextual” (id., p. 240). The PCR court found the petitioner failed to show that there was a valid basis to challenge the chain of custody of the drug evidence, and thus he failed to meet his burden to show deficiency of his trial counsel (id., p. 241). Further, the petitioner failed to establish that a motion to suppress based on a flawed chain of custody would have been granted and would have changed the outcome of his case, and therefore he failed to show resulting prejudice (id.).
The PCR court's denial of the petitioner's ineffective assistance claim was neither contrary to nor an unreasonable application of applicable Supreme Court precedent. The PCR court applied the appropriate Strickland standard, and under AEDPA review, the undersigned finds that a reasonable argument exists that the petitioner's trial counsel was not deficient. The PCR court's dismissal of this claim was not based on objectively unreasonable factual determinations and did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law. Based upon the foregoing, the respondent's motion for summary judgment should be granted as to Ground Two.
Ground Three
In this ground, the petitioner asserts a lack of subject matter jurisdiction because Assistant Solicitor Black “forged” the indictments against him and then “rushed the case to trial” (doc. 7-1, pp. 8-9). He specifically contends that there was no grand jury empaneled during the time at issue and the indictments have no true bill stamp or grand jury seal (id.).
“[T]rue bill” is “[a] grand jury's notation that a criminal charge should go before a petit jury for trial.” TRUE BILL, Black's Law Dictionary (11th ed. 2019).
As argued by the respondent (doc. 27, p. 29), such a claim of alleged defects in the petitioner's indictments is a matter of state law that is not cognizable for federal habeas relief. “‘[F]ederal habeas corpus relief does not lie for errors of state law.'” Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). Further,
Matters of state law not involving federal constitutional issues are not appropriate grounds for habeas corpus relief. Therefore, if the error committed . . . [is] merely related to a State procedural question, the issue may not be reached in a federal habeas corpus petition unless the alleged error constituted a fundamental defect which inherently results in a complete miscarriage of justice, or exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is present.Hailey v. Dorsey, 580 F.2d 112, 115 (4th Cir. 1978). The petitioner has not made the required showing here. See Ashford v. Edwards, 780 F.2d 405, 407 (4th Cir.1985) (“Variances and other deficiencies in state court indictments are not ordinarily a basis of federal habeas corpus relief unless the deficiency makes the trial so egregiously unfair as to amount to a deprivation of the defendant's right to due process.”); see also Dilworth v. Markle, 970 F.Supp.2d 498, 507 (N.D. W.Va. 2013) (“[B]ecause there is no federal constitutional requirement that a state proceed on criminal charges by way of indictment, then there can be no constitutional challenge to the sufficiency of the indictment itself. What is required of a state indictment turns purely on an interpretation of state law . . . .”); Epps v. Bazzle, C. A. No. 9:07-cv-3113-RBH, 2008 WL 2563151, at *2 (D.S.C. June 23, 2008) (“Petitioner's claim that the trial court lacked subject matter jurisdiction fails because circuit courts have subject matter jurisdiction to try criminal cases regardless of whether there is a valid indictment in any particular case.” (citation omitted)).
Furthermore, any claim of prosecutorial misconduct with regard to the indictments and grand jury matters is procedurally barred as it was not raised in the petitioner's direct appeal or ruled upon by the PCR court. The petitioner raised the prosecutorial misconduct issue in his pro se response to the Johnson petition in the PCR appeal (doc. 27-7, pp. 5-6). However, “[b]ecause prosecutorial misconduct . . . can be raised on direct appeal, such misconduct claims cannot be considered in a PCR proceeding absent a claim of ineffective assistance of appellate counsel.” Taylor v. McKie, C. A. No. 5:13-cv-02239-RMG, 2014 WL 3805820, at *3 (D.S.C. July 31,2014) (citing Judge v. State, 471 S.E.2d 146, 148 n.1 (S.C. 1996), overruled on other grounds by Jackson v. State, 535 S.E.2d 926 (S.C. 2000)). As the petitioner made no ineffective assistance of appellate counsel claim related to the prosecutorial misconduct issue in the PCR proceedings, the prosecutorial misconduct issue is procedurally barred absent a showing of cause and actual prejudice or a miscarriage of justice, which the petitioner has not provided.
As noted by the respondent, the testimony of Assistant Solicitor Black at the PCR hearing did not address the indictments or grand jury matters at all, and the petitioner testified that he was aware of and understood his charges (see doc. 27-1, PCR App. p. 119).
The only consideration of the indictments by the PCR court was in referencing trial counsel Ms. Merrill's testimony, which the PCR court found credible, that she reviewed the warrants and indictments in the petitioner's case but found no errors that would render them facially invalid (doc. 27-2, PCR App. pp. 241-42; see doc. 27-1, PCR App. pp. 130-31). Moreover, Ms. Merrill testified at the PCR hearing that she found no reason to believe that the grand jury did not meet as scheduled (doc. 27-1, PCR App. p. 131).
Based upon the foregoing, the respondent's motion for summary judgment should be granted as to Ground Three.
Grounds Four and Five
In Ground Four, the petitioner makes several allegations of ineffective assistance of his trial counsel, Ms. Merrill (doc. 7-1, p. 10). Specifically, he alleges: 1) trial counsel was ineffective for trying the case without co-counsel; 2) trial counsel failed to object when Assistant Solicitor Black allegedly admitted to tampering with the dash camera video (cutting it down to nineteen minutes and suppressing the audio); 3) trial counsel failed to challenge the allegedly broken and fabricated chain of custody; and 4) trial counsel failed to object to the prosecution's vouching for a State witness during its closing argument (id.).
The respondent argues that the first portion of Ground Four is procedurally defaulted. The undersigned agrees. There was no ruling from the PCR court concerning ineffective assistance of counsel for trying the petitioner's case without co-counsel (see generally doc. 27-2, PCR App. pp. 223-51). The petitioner did not raise the issue in his PCR appeal either in the Johnson petition submitted by his counsel or in his own pro se response to the Johnson petition, and thus the claim is procedurally barred from federal habeas review. See, e.g., Tucker v. Catoe, 221 F.3d 600, 615 (4th Cir. 2000) (finding petitioner's claim was procedurally defaulted when, after PCR court denied the claim, petitioner did not raise the issue on appeal); Cheeks v. Joyner, C. A. No. 0:17-cv-02876-DCC, 2018 WL 3751419, at *5 (D.S.C. Aug. 8, 2018) (adopting R&R finding that petitioner's claim was procedurally barred because he failed to raise the issue in his PCR appeal). Further, the petitioner has failed to articulate either cause for the default or actual prejudice from the asserted error or that some fundamental miscarriage of justice will result if this claim is not considered.
The petitioner does not address this issue in his response to the motion for summary judgment (see generally doc. 31).
In the fourth portion of Ground Four, the petitioner contends that his trial counsel was ineffective for failing to object to the prosecution vouching for a State witness during its closing argument (doc. 7-1, p. 10). As argued by the respondent (doc. 27, p. 15), this claim is procedurally defaulted as it was not presented to and ruled upon by the PCR court. Furthermore, because the petitioner fails to identify what portion of the closing argument he believes constitutes improper vouching by the solicitor, the respondent is unable to address the merits (or lack thereof) of this claim (id., p. 33). Based upon the foregoing, the respondent's motion for summary judgment should be granted on this ground.
In the petitioner's pro se response to the Johnson petition in the PCR appeal, the petitioner raised the following ground:
[P]rosecutor Micah Black vouched for the credibility of a States witness (Brandy Wilson) even though he knew she was lying under oath just to get some charges dismissed against her. This vouching was done during closing argument and it violates the 6th amendment under Vaughn v. State, 362 S.C. 163, 169, 607 S.E.2d 72 (2004).(Doc. 27-7, p. 7). To the extent the petitioner is attempting to raise an ineffective assistance of counsel claim as to his trial counsel's failure to object to Assistant Solicitor Black vouching for the credibility of Ms. Wilson during the closing argument, such claim is procedurally barred as it was not presented to and ruled upon by the PCR court, as discussed above.
The second and third portions of Ground Four were raised to and ruled upon by the PCR court and presented to the South Carolina Court of Appeals via the Johnson petition or pro se response thereto. Accordingly, these issues will be considered on the merits.
In the second portion of Ground Four, the petitioner contends that his trial counsel was ineffective for failing to object when Assistant Solicitor Black allegedly admitted to tampering with the dash camera video - specifically, cutting it down to nineteen minutes and suppressing the audio (doc. 7-1, p. 10). Relatedly, the petitioner alleges in Ground Five that Assistant Solicitor Black took the audio out of the video “at the point when [ Miranda ] was read,” his trial counsel was ineffective for “failing to object to holding” a Jackson v. Denno hearing, and that the officers were dishonest in their testimony on the matter as the petitioner never made a statement (id., p. 16).
In his pro se PCR application, the petitioner alleged “Police Misconduct” in that “the police committed Marinda [sic] violation, then tamper[ed] with video to exclude audio on dash cam” (doc. 27-1, PCR App. p. 24). The petitioner's PCR counsel presented the following issue in the amended PCR application: “Trial Counsel failed to adequately challenge the issue related to the dash-cam and its lack of audio at certain points” (id., p. 74). The petitioner testified at the PCR hearing that he invoked his right to counsel at the start of the traffic stop and that the lack of audio allowed law enforcement to fabricate his confession to having drugs on his person (id., pp. 99-101). The PCR court summarized that trial counsel, Ms. Merrill, was aware of the audio issue with the dashboard camera, but that her investigation of the issue demonstrated that the State's copy of the footage also contained the same audio issues (doc. 27-2, PCR App. pp. 244-45; doc. 27-1, PCR App. pp. 141-42). Ms. Merrill further testified that she asked Mr. Black whether this was how the footage came to his office or whether it had been altered in some way, and she was told that they had not altered it (doc. 27-1, PCR App. pp. 141-43). She further testified that she did not find the intermittent lack of audio to be a crucial or helpful matter to the petitioner's case. Nevertheless, she still attempted during the Jackson v. Denno hearing to suppress the statements made by the petitioner, but she was simply unsuccessful (id.; doc. 27-2, PCR App. pp. 244-45). Mr. Black's testimony at the PCR hearing also demonstrated that the dash camera microphone of the officer's vehicle would not capture audio if “an individual whose car is associated with steps away from that vehicle” (doc. 27-1, PCR App. pp. 157-58).
With regard to the petitioner's claim of deficient performance of trial counsel, the PCR court found that trial counsel's testimony was credible; conversely, the court found that the petitioner was not credible on the matter (doc. 27-2, PCR App. pp. 244-45). The PCR court noted that the record showed that the officers testified during the Jackson v. Denno hearing that they read the petitioner his Miranda rights and the petitioner did not ask for a lawyer after hearing his rights (id.). The court noted that Ms. Merrill cross-examined each officer on this subject in an effort to suppress the petitioner's statement (id.). Moreover, the PCR court noted that while the trial court denied the motion to suppress, finding that the petitioner voluntarily made the statements and that there were no Miranda violations, Ms. Merrill also cross-examined the officers on the audio issues in the video footage so as to present a question of credibility for the jury to determine (id.).
In consideration of the state court record and the testimony presented, the PCR court concluded that the petitioner had failed to meet his burden under Strickland to demonstrate deficient performance. The court further found that the petitioner failed to prove prejudice because he failed to articulate what further arguments or cross-examination trial counsel should have made to further challenge the alleged Miranda violations and audio recording issues (doc. 27-2, PCR App. pp. 244-45). The undersigned finds that a reasonable argument exists that the petitioner's trial counsel was not deficient. Further, the PCR court's dismissal of this claim was not based on objectively unreasonable factual determinations and did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law. Accordingly, summary judgment should be granted on this ineffective assistance of trial counsel claim.
With regard to the petitioner's direct claim of police misconduct, the PCR court noted that at the outset of the PCR hearing the petitioner stated that he was going forward on the allegations of ineffective assistance of trial and appellate counsel and prosecutorial misconduct (doc. 27-2, PCR App. p. 228). Accordingly, the PCR court found that the petitioner's “allegations of police misconduct . . . are hereby waived and abandoned” (id.). Thus, the court made no ruling on the petitioner's claim that the police tampered with the video to exclude the audio (see generally id., pp. 223-51). As argued by the respondent (doc. 27, p. 32), the record simply does not support the petitioner's allegation as it pertains to his direct claim of dishonesty by the officers.
In the third portion of Ground Four, the petitioner alleges that his trial counsel was ineffective for failing to challenge the allegedly “broken” and “fabricated” chain of custody of the drug evidence used against him at trial (doc. 7-1, p. 10). The PCR court addressed the chain of custody issue (doc. 27-2, PCR App. pp. 240-41) as discussed as part of Ground Two above. For the reasons discussed therein, summary judgment should be granted on this claim.
Wherefore, based upon the foregoing, the respondent's motion for summary judgment should be granted as to Grounds Four and Five.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the respondent's motion for summary judgment (doc. 28) should be granted. Should the district court adopt this recommendation, the petitioner's motion for evidentiary hearing and to appoint counsel (doc. 45) should be denied as moot. See 28 U.S.C. § 2254(e)(2) (standard petitioner must meet for receiving evidentiary hearing).
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following 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 250 East North Street, Suite 2300 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).