Opinion
C/A 5:21-1000-JFA-KDW
01-25-2022
Alexander Bernard Wilson, Jr., Petitioner, v. Warden, Kirkland Correctional Institution, Respondent.
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REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Alexander Bernard Wilson, Jr., (“Petitioner”) is a state prisoner 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)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 26, 27. On July 7, 2021, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 28. On July 19, 2021, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment. ECF No. 30. Respondent filed a Reply on July 26, 2021. ECF No. 32. Subsequent to the filing of Respondent's summary judgment motion, Petitioner filed a Motion to Dismiss for Lack of Jurisdiction. ECF No. 33. Respondent filed a Response in Opposition to Petitioner's Motion on August 6, 2021, ECF No. 38, and Petitioner filed a Reply on August 16, 2021. ECF No. 40.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Petitioner's Motion to Dismiss for Lack of Jurisdiction, ECF No. 33, be denied, Respondent's Motion for Summary Judgment, ECF No. 27, be granted, and this Petition be denied.
I. Petitioner's Motion to Dismiss for Lack of Jurisdiction
Petitioner filed a motion to dismiss for lack of jurisdiction. ECF No. 33. Petitioner states
Under the Federal Rule of Civil Procedure Rule 12, for lack of subject matter jurisdiction and lack of personal jurisdiction in the motion for judgment.Id. Respondent opposes the Motion to Dismiss arguing this court has subject matter and personal jurisdiction over Petitioner's habeas petition. ECF No. 38. In Reply, Petitioner argues the main dispute in this case was whether he killed his adoptive mother or an imposter. ECF No. 40 at 1. Petitioner contends Respondent's version of the facts is incorrect because he submitted a copy of his testimony that he did not kill his adoptive mother. Id. Petitioner also claims he submitted the state's doctor's March 2014 opinion that he was not guilty by reason of insanity, but at his trial the doctor testified Petitioner was guilty but mentally ill. Id. at 2. Petitioner also challenges the events surrounding his mother's murder and his purported use of crack cocaine. Id. Petitioner argues the subject matter of his case is whether he killed his adoptive mother and how many people were killed. Id. at 3. Petitioner claims Respondent's claims of ineffective assistance of counsel, guilty but mentally ill or by reason of insanity, and Strickland are irrelevant to the facts. Id. Petitioner argues the State failed to state a claim, and summary judgment should be dismissed as a matter of law. Id.
Federal habeas corpus jurisdiction exists only if a state prisoner alleges he is in custody in violation of federal laws. 28 U.S.C. § 2254(a). Further, the general rule for habeas jurisdiction is that the petition must be brought in a district court having personal jurisdiction over the petitioner's immediate custodian. Rumsfeld v. Padilla, 542 U.S. 426, 434-35, 442 (2004).The undersigned finds the court has personal and subject matter jurisdiction over Petitioner's § 2254 habeas petition. Petitioner has named the appropriate custodian, he is in the custody of the South Carolina Department of Corrections, and he is challenging a South Carolina state court murder conviction and life sentence. Accordingly, the undersigned recommends Petitioner's Motion to Dismiss for Lack of Jurisdiction, ECF No. 33, be denied.
II. Respondent's Motion for Summary Judgment
A. Factual Background
Petitioner is currently incarcerated in the Kirkland Correctional Institution of the South Carolina Department of Corrections. ECF No. 1 at 1. He was indicted at the May 2011 term of the Sumter County Grand Jury on murder (2011-GS-43-0698). App. 491-93. Petitioner proceeded to a jury trial on December 1-4, 2014, before the Honorable W. Jeffrey Young, Circuit Court Judge. App. 28 et. seq. The State was represented by Solicitors Ernest A. “Chip” Finney, III, Esq. and John P. Meadors, Esq., and Charles T. Brooks, III, Esq. represented Petitioner. App. 28. The jury found Petitioner guilty but mentally ill on the murder charge. App. 480. Judge Young sentenced Petitioner to life imprisonment. App. 489.
Citations to “App.” refer to the Appendix for Petitioner's trial transcript and Post-Conviction Relief (“PCR”) Proceedings and the page numbers on the top of the page. That appendix is available at ECF Nos. 26-1 to 26-4 in this habeas matter.
Petitioner appealed his conviction and sentence to the South Carolina Court of Appeals (“Court of Appeals”). On appeal, Petitioner was represented by Appellate Defender Susan B. Hackett, Esq., of the South Carolina Commission on Indigent Defense, Division of Appellate Defense. ECF No. 26-5. Attorney Hackett filed an Amended Anders brief on or about November 3, 2015, raising the following issue:
Anders v. California, 386 U.S. 738, 744 (1967), requires that counsel who seeks to withdraw after finding the “case to be wholly frivolous” following a “conscientious examination” must submit a brief referencing anything in the record that arguably could support an appeal, furnish a copy of that brief to the defendant, and after providing the defendant with an opportunity to respond, the reviewing court must conduct a full examination of the proceedings to determine if further review is merited.
Did the trial court err in allowing a lay witness [to] testify regarding his opinion concerning Appellant's ability to know right from wrong and conform his conduct to the requirements of the law - the only issues in the case?Id. at 4. Attorney Hackett certified the appeal was without merit and asked to be relieved as counsel. Id. at 15. Petitioner filed a pro se response on January 4 and May 13, 2016. ECF No. 26-6. On June 22, 2016, the Court of Appeals filed an unpublished decision dismissing the appeal. ECF No. 26-7. The remittitur was issued on July 8, 2016. ECF No. 26-8.
B. Procedural History
Petitioner filed a PCR Application on July 15, 2016 (2016-CP-43-1333). App. 514-22. Petitioner asserted he was being held in custody unlawfully because:
(A) Ineffective assistance of counsel;
(B) Defendant mental state determined by lay witness; and
(C) Compel to be a witness against myself.App. 517.
A PCR motion hearing convened on November 15, 2017, before the Honorable George M. McFaddin, Circuit Court Judge. App. 529-69. Petitioner was present and represented by Attorney Timothy L. Griffith, and Assistant Attorney General Julie Coleman appeared on behalf of the State. See Id. Petitioner and his trial counsel testified at the hearing. Id. The PCR court denied and dismissed Petitioner's PCR Application with prejudice in an order filed on April 16, 2018, making the following findings of fact and conclusions of law:
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
This Court has had the opportunity to review the record in its entirety and has heard the testimony at the post-conviction relief hearing. This Court has further had the opportunity to observe the witnesses presented at the hearing, closely pass upon their credibility and weigh their testimony accordingly. Set forth below are the relevant findings of facts and conclusions of law as required pursuant to S.C. Code Ann. §17-27-80 (1985).
INEFFECTIVE ASSISTANCE OF COUNSEL
Applicant has asserted several allegations of ineffective assistance of counsel. This Court finds these claims to be meritless and they should be denied and dismissed with prejudice. After considering the testimony, judging the credibility of the witnesses, and reviewing the materials presented to the court, this Court finds Applicant has failed to meet his burden of proof. Accordingly, post-conviction relief is denied. Each individual allegation is addressed below.
Applicant's decision to testify at trial
Applicant alleges he was compelled to be a witness against himself at trial, and he was not properly advised of the risks and benefits of testifying or his right not to testify at trial. These allegations are meritless. The trial transcript shows Applicant was fully advised of his right to testify at trial as well as his right to remain silent. The trial court fully reviewed these rights and advised Applicant it was entirely his decision to testify or not. Tr. 237-241. Applicant informed the trial court that he had no questions about the court's explanation of his rights, he had discussed the decision with his attorney, and he did wish to testify. Tr. 240, line 11-21.
Trial Counsel credibly testified that he did advise Applicant of his rights and the risks and benefits of testifying at trial. He explained that he discussed the decision with Applicant multiple times over the phone, in person at the jail, and right before the trial. Trial Counsel testified that his trial strategy was to argue a defense of insanity, and the best way to present the defense to the jury was to have Applicant testify at trial about why he killed the evil clone that was impersonating his mother.
This Court finds it was Applicant's decision to testify at trial in alignment with Trial Counsel's strategy, and he was fully advised of his rights and the risks of testifying before he took the stand. This Court finds Trial Counsel's actions were reasonable under professional norms and nothing about his performance was deficient or prejudicial. Accordingly, Applicant has failed to meet his burden of proving that Trial Counsel was ineffective or that his constitutional rights were violated in this regard. These allegations are denied and dismissed with prejudice.
Failure to object to lay witness testimony of Applicant's mental health
This Court finds no merit in Applicant's allegation that Trial Counsel was ineffective for failing to object to the testimony of Applicant's brother, Jerome, as a lay witness giving expert opinion testimony on Applicant's mental state at the time of the crime. Trial Counsel credibly testified he saw no reason to object to Jerome's testimony because he did not believe he was holding himself out to be an expert on the subject of mental health, but he was only discussing Applicant's mental health history and his impressions of his brother's behavior at the time he witnessed him. This Court finds the choice not to object to the testimony was reasonable under the circumstances, as Jerome was not offering any opinions on Applicant's mental health in an expert manner. Jerome was simply explaining his interaction with his brother when he witnessed him immediately after the crime.
Furthermore, Trial Counsel cannot [be] deficient because he offered a valid strategic reason for choosing not to object to the testimony. He credibly testified that Jerome's testimony taken as a whole helped Applicant and his defense, and Trial Counsel did not want to make Jerome look bad to the jury. Where counsel articulates a valid strategic reason for his action or inaction, counsel's performance should not be found ineffective. Roseboro v. State, 317 S.C. 292, 454 S.E.2d 312 (1996); Underwood v. State, 309 S.C. 560, 425 S.E.2d 20 (1992); Stokes v. State, 308 S.C. 546, 419 S.E.2d 778 (1992). Courts must be wary of second guessing counsel's trial tactics; and where counsel articulates a valid reason for employing such strategy, such conduct is not ineffective assistance of counsel. Whitehead v. State, 308 S.C. 119, 417 S.E.2d 529 (1992). Accordingly, this Court finds Trial Counsel was not deficient for failing to object to Jerome's testimony.
This Court further finds Applicant has failed to prove any prejudice from Trial Counsel's failure to object to Jerome's testimony. The evidence against Applicant was overwhelming, and there was no question that Applicant murdered his mother. The presence of overwhelming evidence of guilt negates any claim that counsel's performance could have reasonably affected the result of the defendant's trial. Franklin v. Catoe, 346 S.C. 563, 570 n. 3, 552 S.E.2d 718, 722, n. 3 (2001), cert. denied, 535 U.S. 1114, (2002) (finding overwhelming evidence of guilt negated any claim that counsel's deficient performance could have reasonably affected the result of defendant's trial). While Applicant may contend that he may have been found not guilty by reason of insanity rather than guilty but mentally ill if Trial Counsel had objected to the testimony, this Court finds Applicant has failed to meet his burden of proving so. Accordingly, neither prong of the Strickland test is met, and this allegation is denied and dismissed with prejudice.
VI. CONCLUSION
Based on all the foregoing, this Court finds and concludes that the Applicant has not established any constitutional violations or deprivations that would require this
court to grant his application. Therefore, this application for post-conviction relief must be denied and dismissed with prejudice.App. 575-78.
Petitioner appealed the denial of his PCR application and Appellate Defender Kathrine H. Hudgins, Esq., of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, represented him on his appeal. ECF No. 26-9. Attorney Hudgins filed a Petition for Writ of Certiorari in the South Carolina Supreme Court on November 19, 2018, presenting the following issues:
Did the PCR judge err in refusing to find trial counsel ineffective in failing to object when Petitioner's brother gave his lay opinion that, based on his experience “working in mental health and dealing with a lot of different clients, ” Petitioner knew the difference between right and wrong when the sole issue before the jury was whether Petitioner was not guilty by reason of insanity or guilty but mentally ill of murder?Id. at 3. On February 11, 2019, the South Carolina Supreme Court transferred the petition to the Court of Appeals. ECF No. 26-11. The Court of Appeals filed an order on March 10, 2021, denying the petition for a writ of certiorari. ECF No. 26-12. The remittitur was issued on April 2, 2021. ECF No. 26-13.
C. Discussion
1. Federal Habeas Issues
Petitioner raises the following issue in his Federal Petition for a Writ of Habeas Corpus, quoted verbatim:
Ground One: Trial counsel did not object to lay testimony giving improper expert opinion on Petitioner mental
Supporting Facts: Counsel failed to object to lay testimony.ECF No. 1 at 5.
2. Standard 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 a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 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. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 323 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
3. Habeas Corpus Standard of Review
a. Generally
Because 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, 336 (1997); Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362 (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 411.
(1) Deference to State Court Decisions
Courts afford deference to state courts' resolutions of the habeas claims of state prisoners. See Bell v. Cone, 543 U.S. 447, 455 (2005). The Supreme Court has provided further guidance regarding the deference due to state-court decisions. Harrington v. Richter, 562 U.S. 86 (2011); Cullen v. Pinholster, 131 S.Ct. 1388 (2011). To obtain habeas relief from a federal court, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. “[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102. The Court further stated: “If this standard is difficult to meet, that is because it was meant to be.” Id.; see Richardson v. Branker, 668 F.3d 128, 137-44 (4th Cir. 2012) (quoting Harrington extensively and reversing district court's grant of writ based on his ineffective assistance of counsel claims).
In interpreting § 2254(d)(1) and discussing the federal courts' role in reviewing legal determinations made by state courts, the United States Supreme Court held as follows:
[A] federal court may grant a writ of habeas corpus if the relevant state-court decision was either (1) “contrary to . . . [clearly] established Federal law as determined by the Supreme Court of the United States, ” or (2) “involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.Williams v. Taylor, 529 U.S. 362, 404-05 (2000) (quoting from § 2254(d)(1)). “Clearly established Federal law in § 2254(d)(1) refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams, 529 U.S. at 412). In considering whether a state-court decision is “contrary to” clearly established federal law, the federal court may not grant relief unless the state court arrived at a conclusion opposite to that reached by the Supreme Court on a legal question, the state court decided the case differently than the Court has on facts that are materially indistinguishable, or if the state court “identifie[d] the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applie[d] that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 405-13. The “unreasonable application” portion of § 2254(d)(1) “requires the state court decision to be more than incorrect or erroneous[, ]” it “must be objectively unreasonable, ” which is a higher threshold. Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citation omitted).
Section 2254(e)(1) requires the federal court give a presumption of correctness to state-court factual determinations and provides that a petitioner can only rebut such a presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Accordingly, a habeas petitioner is entitled to relief under § 2254(d)(2), only if he can prove, by clear and convincing evidence, that the state court unreasonably determined the facts in light of the evidence presented in state court.
(2) Ineffective Assistance of Counsel
The Sixth Amendment provides a criminal defendant the right to effective assistance of counsel in a criminal trial and first appeal of right. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court announced a two-part test for adjudicating ineffective assistance of counsel claims. First, a petitioner must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 687. Second, the petitioner must show that this deficiency prejudiced the defense. Id. at 694. The United States Supreme Court's 2011 decisions cited previously elaborate on the interplay between Strickland and § 2254, noting the standards are “both highly deferential, ” and “when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal quotation marks omitted); Pinholster, 131 S.Ct. at 1403. When a petitioner raises in a § 2254 habeas petition an ineffective-assistance-of-counsel claim that was denied on the merits by a state court, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable[, ]” not “whether defense counsel's performance fell below Strickland's standard.” Harrington, 562 U.S. at 101. “For purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Id. (citing Williams, 529 U.S. at 410) (emphasis in original). “A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id.
b. 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. 28 U.S.C. § 2254(a)-(b). The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require that a habeas petitioner 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.
(1) Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court, shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
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). “To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
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 section 17-27-80 of the South Carolina Code, 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, 267 (S.C. 2007). Strict time deadlines govern direct appeals 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.
Furthermore, in filing a petition for habeas relief in the federal court, a petitioner may present only those issues that were presented to the South Carolina Supreme Court or the South Carolina Court of Appeals. See State v. McKennedy, 559 S.E.2d 850, 853 (S.C. 2002) (holding “that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error.”) (quoting In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief, 471 S.E.2d 454, 454 (S.C. 1990)).
(2) 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 United States Supreme Court explains: [state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case. Reed v. Ross, 468 U.S. 1, 10-11 (1984).
However, if a federal habeas petitioner can show both (1) “‘cause' for noncompliance with the state rule[, ]” and (2) “‘actual prejudice resulting from the alleged constitutional violation[, ]'” the federal court may consider the claim. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 23, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986).
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met, and the rules of procedural bar apply. See Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996).
c. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the South Carolina Supreme Court in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or that a “fundamental miscarriage of justice” has occurred. Murray, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor that 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, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
D. Analysis
In Ground One, Petitioner argues his trial counsel was ineffective when he failed to object to lay testimony giving improper expert opinion on Petitioner's mental health. ECF No. 1 at 5.
At the PCR hearing, Petitioner stated his brother Jerome testified at his trial that Petitioner knew what he was doing and could distinguish from right and wrong. App. 540. Petitioner testified that his attorney did not object to this testimony. App. 541-42.
When asked if he saw any reason to object to Jerome's testimony that Petitioner knew what he was doing, trial counsel testified he did not. App. 551. Counsel stated his strategy in the case was to show that Petitioner had to be crazy to do what he did to his mother. Id. Counsel testified Jerome spoke about Petitioner's mental health issues and his medication. App. 557. Counsel also stated Jerome spoke about Petitioner not taking responsibility for the things happening in his life and Petitioner “tried to live off” their mother. Id. Counsel said Jerome's testimony “was more in line with the history of his brother” and he did not think Jerome “was encroaching into an area that would have been expert.” App. 558. Counsel stated when trying the case he had to keep in mind that Jerome's mother was bludgeoned to death by Petitioner and he did not want “to antagonize him because obviously he's dealing with the loss.” Id. Counsel testified Jerome was not a “fire and brimstone witness” and the gist of his testimony was Petitioner had problems and he should have been taking his medication. App. 559. Counsel stated he did not see that it was helpful to his strategy to object to Jerome's testimony. App. 560. Counsel testified
You know, again, my strategy was when a brother is going to come in and I knew he was going to take the posture that I described in addition to being a fact witness and that was going to go hand in hand with what the State's doctor was saying. I
had Dr. Martin and more importantly I had Alexander Wilson and out of the things he said to Dr. Martin, my strategy was, hey, I want this played up because my position as I described was, can you believe this? Can you believe this guy thought this way? Can you believe this guy? He got to be crazy. That was my strategy.App. 561. Counsel stated his strategy was not to object to Jerome's testimony even if under other circumstances he may have objected to Jerome not being an expert. Id. Counsel acknowledged Jerome talked about his work history with mental health patients, and stated Jerome conceded his bother had mental health issues but he believed those issues could be remedied if he took his medication. Id. Counsel testified he understood Jerome's testimony bolstered the State's case, but counsel stated some of Jerome's testimony about his brother also helped Petitioner and bolstered his case for insanity. App. 564-65. Counsel stated given Jerome's loss he had “to handle him, you know, with a little bit of care. I can't just come out and start antagonizing or objecting to things because some of the things he said we were trying to spin for us to bolster our argument to the juror [sic] for insanity.” App. 565. When asked why he did not object when Jerome placed himself as an expert, Counsel testified
Well, I wouldn't necessarily agree that he placed himself as an expert. I would agree with whatever is displayed in the record. If I objected, I objected. If I didn't, I didn't. Jerome never to me placed himself as an expert witness. He might have commented on - Jerome may have commented on Jerome's work history of having dealt with some people. He may have commented also on the family history of dealing with his brother. Obviously he would know that by being his brother, okay? For all those years. And he may have commented on, you know, he may have given a little bit of his opinion. But there were things in Jerome's testimony that were actually favorable to my argument too.
So in some instances sometimes you have to take the good with the bad and understanding that some of this witness' testimony was helpful to me in the angle that I was pursuing and so you deal with him in such a way when you have a witness you try to get the things out of them that are going to help bolster your theory of the case. And because this was not a who done it. It was I wanted - I got - I wanted some things out of Jerome to show that, hey, this man is crazy in terms of Alexander. That was my strategy.
Now, you tell me I chose the wrong strategy. If the judge agrees I chose the wrong strategy, then so be it. But that's the strategy that I had. That's the cards I was dealt and that's the hand I played.App. 566-67.
In denying Petitioner's claims, the PCR court found Petitioner's claim that his trial counsel was ineffective for failing to object to Jerome's testimony about Petitioner's mental health was without merit. App. 576. The PCR court found trial counsel acted reasonably in not objecting to Jerome's testimony because he did not believe Jerome was holding himself out as an expert, but was only discussing Petitioner's mental health history and his impression of his brother's behavior. Id. The PCR court also found trial counsel's testimony that he did not want to make Jerome look bad in front of the jury and that Jerome's testimony in its entirety helped Petitioner was a valid strategic reason for not objecting to the testimony. App. 576-77. The PCR court also found Petitioner failed to prove any prejudice from trial counsel's failure to object to Jerome's testimony. App. 577.
In moving for summary judgment, Respondent argues the PCR court's finding that Petitioner's Ground One lacks merit is fully supported by the record, United States Supreme Court Precedent, and South Carolina evidentiary case law. ECF No. 26 at 23. Respondent also contends the PCR court's finding that counsel's testimony was more credible is also supported by the record. Id.
In his opposition brief, Petitioner does not address the PCR court's findings but instead contends he is not guilty of the murder of his mother. ECF No. 30. Petitioner asks the court to award him approximately two million dollars. Id. Petitioner attaches excerpts from the Appendix, including a portion of his appellate brief, the order dismissing his appeal, his PCR application, transcript, and order of dismissal, his trial testimony, and his forensic evaluation. ECF Nos. 31, 36-1, 39-1. Petitioner also offers his version of the events surrounding the murder of his mother. ECF Nos. 34, 44, 45. Petitioner argues the person he killed was not his mother, and he did not have criminal intent when he killed this individual. ECF Nos. 44, 45. Petitioner also contends his brothers and father were replaced by imposters as these family members were killed or died at an earlier time. ECF No. 45. Finally, Petitioner argues his appellate counsel did not fulfill the requirements of an Anders brief. ECF No. 47.
In reply, Respondent argues Petitioner's Response does not create a genuine issue of material fact. ECF No. 32.
The undersigned finds Petitioner's arguments are insufficient to satisfy the Strickland test. Petitioner has failed to show by clear and convincing evidence that the PCR court reached an unreasonable factual determination in finding Petitioner failed to establish (1) that his trial counsel was ineffective for failing to object to Jerome's testimony and (2) that he was prejudiced by trial counsel's failure to object. The undersigned finds the PCR court's finding that trial counsel was reasonable in failing to object to Jerome's testimony as it was not offered as expert testimony, and that trial counsel's failure to object was strategic is supported by the record before the court. Where trial counsel articulates a valid reason for employing certain trial strategy, such conduct should not be deemed ineffective assistance of counsel if it is objectively reasonable under the circumstances. Strickland v. Washington; Caprood v. State, 525 S.E.2d 514 (S.C. 2000). Courts must be wary of second guessing counsel's trial tactics; and where counsel articulates a valid reason for employing such strategy, such conduct is not ineffective assistance of counsel if objectively reasonable under the circumstances. Strickland v. Washington; Whitehead v. State, 417 S.E.2d 529 (S.C. 1992). Petitioner has also failed to show the PCR court unreasonably applied United States Supreme Court precedent in deciding these claims. Accordingly, Petitioner has failed to overcome the deferential standard of review accorded the state PCR court's determinations of these issues. Williams v. Taylor, 529 U.S. 420 (2000); Bell v. Jarvis, 236 F.3d 149, 157-58 (4th Cir. 2000); 28 U.S.C. § 2254(e)(1) (finding the determination of a factual issue by the state court shall be presumed correct unless rebutted by clear and convincing evidence). The undersigned recommends Respondent be granted summary judgment on Petitioner's Ground One claim.
III. Conclusion and Recommendation
Based upon the foregoing, the undersigned recommends Petitioner's Motion to Dismiss for Lack of Jurisdiction, ECF No. 33, be DENIED, Respondent's Motion for Summary Judgment, ECF No. 27, be GRANTED and the Petition be DENIED. If the court accepts these recommendations, Petitioner's Motion for Hearing, ECF No. 37, will be rendered moot.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. [I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 2317
Florence, South Carolina 29503
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).