Opinion
4:21-cv-00782-RBH-TER
01-05-2023
JAMES A. WILSON, Petitioner, v. WARDEN, LEE CORRECTIONAL INSTITUTION, Respondent.
REPORT AND RECOMMENDATION
Thomas E. Rogers, III United States Magistrate Judge.
Petitioner, appearing pro se, filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on March 18, 2021. (ECF No. 1). On July 22, 2022, Respondent filed a motion for summary judgment along with a return and memorandum in support. (ECF Nos. 42 and 43). The undersigned issued an order on July 25, 2022, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Petitioner of the motion for summary judgment procedure and the possible consequences if he failed to respond adequately. (ECF No. 44). Petitioner failed to respond within the required time and the undersigned recommended this action be dismissed again for failure to prosecute. (ECF No. 47). Petitioner filed a response on September 19, 2022. (ECF No. 49). Accordingly, the matter was recommitted to the undersigned for consideration on the merits. (ECF No. 52). After careful consideration of the record and the parties' arguments, the undersigned recommends granting Respondent's motion for summary judgment and dismissing the petition.
This habeas corpus case was automatically referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02, DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the district judge.
This case was initially dismissed on April 27, 2021 for Petitioner's failure to respond to a court order. (ECF No. 9). The court's order of dismissal was returned as undeliverable on August 27, 2021. (ECF No. 13). On February 14, 2022, Petitioner requested a status update and informed the court he had not received any correspondence. (ECF No. 14). On March 7, 2022, Petitioner moved to amend the court's order of dismissal and re-open his case. (ECF No. 16). The court granted Petitioner's motion on March 8, 2022 and, after the case was brought into proper form, ordered service of process on Respondent. (ECF Nos. 17 and 27).
PROCEDURAL HISTORY
In September 2015, the Horry County grand jury indicted Petitioner for the May 8, 2015 murder of Nigeria McDonald and possession of a weapon during the commission of a violent crime. (ECF No. 42-3 at 137-40). Petitioner was tried before the Honorable Steven John (“Trial Court”) and represented by Ralph Wilson, Sr. (“Trial Counsel”). On June 29, 2016, Petitioner was found guilty of the lesser included offense of voluntary manslaughter and the related weapons charge and sentenced to 27 years in prison. (ECF No. 42-3 at 33-34, 47). Petitioner did not file an appeal.
PCR Action
On February 1, 2017, Petitioner filed a pro se application for post-conviction relief (“PCR”) alleging:
1. Trial counsel provided ineffective assistance by failing to file a Notice of Appeal on behalf of Applicant where Applicant asked counsel to appeal and counsel should reasonably have known that Applicant wanted to appeal. ....
2. Trial counsel provided ineffective assistance in failing to adequately inform Applicant and the court of the existence of a potential or actual conflict of interest where counsel and his son, who also is a lawyer, are cousins to the victim and the son represented a state witness who testified against Applicant, prior to, and after the incident. ....
3. Trial counsel provided ineffective assistance in failing to object to the Solicitor's closing argument and ask for a curative instruction, where the Solicitor acted as a witness by arguing alleged facts that was not in evidence, which tended to bolster the credibility and false testimony of State witnesses, and where his argument was contradicted by testimony and other evidence, to the clear prejudice of the Applicant.(ECF No. 42-3 at 55-57). After briefing by the State, the Honorable Larry B. Hyman, Jr. (“PCR Court”) held an evidentiary hearing, at which Petitioner was represented by James K. Falk (“PCR Counsel”). (ECF No. 42-3 at 69-123). On July 20, 2018, the PCR Court dismissed Petitioner's PCR application and granted him the opportunity to petition the South Carolina Supreme Court for belated review of any direct appeal issues pursuant to White v. State, 208 S.E.2d 35 (S.C. 1974). (ECF No. 42-3 at 124-36).
PCR & White v. State Appeal
PCR Counsel filed a timely notice of appeal and appellate defender Taylor D. Gilliam petitioned the South Carolina Supreme Court for a writ of certiorari to consider a belated direct appeal pursuant to White v. State and an Anders brief presenting the following issue:
Anders v. California, 386 U.S. 738 (1967).
Whether the trial court erred in denying [Trial Counsel]'s motion for a directed verdict on the charge of murder, where the State failed to offer any substantial circumstantial evidence that Petitioner intended to kill the decedent with malice aforethought, where witnesses did not see him shoot her, and where Petitioner testified it was an accident?(ECF Nos. 42-4 at 3 (Notice of Appeal), 42-5 (Petition for Writ of Certiorari), 42-7 at 4 (Anders brief Issue Presented)). Petitioner filed a pro se response elaborating on the Anders brief issue and presenting the following additional issues: (1) “Trial counsel knew or should have known that Solicitor's closing statements were improper, due to the inflaming statements that was made in closing arguments that contradicted the state witnesses['] testimony, the expert witness testimony, and the Petitioner's testimony in that the incident was an accident”; (2) “The Solicitor acted as a[] witness by arguing alleged facts, he was not qualified in the area of ballistics or the trajectory of a bullet”; (3) “the state never presented any concrete evidence at trial to prove that the petitioner has lied”; (4) the Solicitor's “closing arguments tended to confuse the jury, bolster the credibility and false testimony of the state's witnesses whom the Solicitor knew were testifying falsely”; and (5) “Trial counsel unreasonably failed to object [to the Solicitor's closing argument] and ask for curative instruction.” (ECF No. 42-9 at 1-10).
Counsel amended his Anders brief and re-filed it the same day, alleging the same issue. (See ECF No. 42-8).
The South Carolina Supreme Court transferred the matter to the South Carolina Court of Appeals, which granted the petition for certiorari, conducted an Anders review, and dismissed Petitioner's direct appeal. (ECF Nos. 42-10 (Transfer Order), 42-12 (Order of Dismissal)). The remittitur issued on February 12, 2021. (ECF No. 42-13).
After the matter was transferred to the Court of Appeals, Petitioner filed additional pro se responses stating his PCR appellate counsel refused to raise the claims presented in Petitioner's PCR application. (ECF No. 42-11). The Court of Appeals indicated it considered these responses in reaching its decision and, because the court conducted an Anders review, it considered all issues presented to the PCR Court. (See ECF No. 42-12 at 2).
HABEAS ALLEGATIONS
Petitioner raised the following allegations in his petition, quoted verbatim:
GROUND ONE: Counsel failed to file notice of appeal
Supporting Facts: Counsel deprived Petitioner of his right to appeal when he didn't file notice of appeal after jury rendered its verdict.
GROUND TWO: Counsel failed to object to prosecution closing arguments
Supporting Facts: Counsel was ineffective when he commented on Petitioner's right to remain silent, and pitted me against state witnesses and as a result improperly bolstered its own case. During closing state viciously attacked my silence to police and characterized me as a liar.
GROUND THREE: Conflict of Interest
Supporting Facts: Counsel operated under a conflict of interest and failed to inform court about conflict and deprived Petitioner of effective assistance of counsel when he was related to the victim in this case.
GROUND FOUR: Jackson v. Virginia evidence at trial insufficient for guilt
Supporting Facts: Counsel made a motion for a directed verdict and the court denied this motion. This was error for a court to deny motion when the state evidence failed to prove murder. As such, it must also be noted that the evidence proves defense of others when testimony reveals fight was taking place with a pregnant woman and others. Moreover, evidence reveals that such shooting was accidental and that such motion should have been granted.(Petition, ECF No. 1).
STANDARD FOR SUMMARY JUDGMENT
The federal court is charged with liberally construing the complaints filed by pro se litigants, to allow them to fully develop potentially meritorious cases. See Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). The court's function, however, is not to decide issues of fact, but to decide whether there is an issue of fact to be tried. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, Weller v. Dep't of Social Servs., 901 F.2d 387 (4th Cir. 1990), nor can the court assume the existence of a genuine issue of material fact where none exists.
If none can be shown, the motion should be granted. Fed.R.Civ.P. 56(c).
The moving party bears the burden of showing that summary judgment is proper. Summary judgment is proper if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is proper if the non-moving party fails to establish an essential element of any cause of action upon which the non-moving party has the burden of proof. Celotex, 477 U.S. 317. Once the moving party has brought into question whether there is a genuine dispute for trial on a material element of the non-moving party's claims, the non-moving party bears the burden of coming forward with specific facts which show a genuine dispute for trial. Fed.R.Civ.P. 56(e); Matsushita Electrical Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986). The non-moving party must come forward with enough evidence, beyond a mere scintilla, upon which the fact finder could reasonably find for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The facts and inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). However, the non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Barber v. Hosp. Corp. of Am., 977 F.2d 874-75 (4th Cir. 1992). The evidence relied on must meet “the substantive evidentiary standard of proof that would apply at a trial on the merits.” Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
To show that a genuine dispute of material fact exists, a party may not rest upon the mere allegations or denials of his pleadings. See Celotex, 477 U.S. at 324 (Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves). Rather, the party must present evidence supporting his or her position through “depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any.” Id. at 322; see also Cray Communications, Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390 (4th Cir. 1994); Orsi v. Kickwood, 999 F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05, D.S.C.
STANDARD OF REVIEW
In addition to the standard that the court must employ in considering motions for summary judgment, the court must also consider the petition under the requirements set forth in 28 U.S.C. § 2254. Under § 2254(d),
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 with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim-
(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 State court proceeding.
Thus, a writ may be granted if a state court “identifies the correct principle from [the Supreme] Court's decisions but unreasonably applies that principle of law” to the facts of the case. Humphries v. Ozmint, 397 F.3d 206, 216 (4th Cir. 2005) (citing Williams v. Taylor, 529 U.S. 362, 413 (2000)). However, “an ‘unreasonable application of federal law is different from an incorrect application of federal law,' because an incorrect application of federal law is not, in all instances, objectively unreasonable.” Id. “Thus, to grant [a] habeas petition, [the court] must conclude that the state court's adjudication of his claims was not only incorrect, but that it was objectively unreasonable.” McHone v. Polk, 392 F.3d 691, 719 (4th Cir. 2004). Further, factual findings “made by a State court shall be presumed to be correct,” and a Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
Respondent concedes Petitioner filed his petition within the one-year statute of limitations. (ECF No. 42 at 11).
Ground One
In Ground One, Petitioner alleges Trial Counsel was ineffective for failing to file a notice of appeal. (ECF No. 1 at 5). Respondent contends Petitioner already received relief on this ground through his belated White v. State appeal. (ECF No. 42 at 14).
The Sixth Amendment to the United States Constitution guarantees a defendant the right to effective assistance of counsel in a criminal prosecution. McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). In the case of Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth two factors that must be considered in evaluating claims for ineffective assistance of counsel. A petitioner must first show that his counsel committed error. If an error can be shown, the court must consider whether the commission of an error resulted in prejudice to the defendant.
To meet the first requirement, “[t]he defendant must show that counsel's representation fell below an objective standard of reasonableness.” Strickland, at 688.
“The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Turner v. Bass, 753 F.2d 342, 348 (4th Cir. 1985) (quoting Strickland, reversed on other grounds, 476 U.S. 28 (1986)). The Court further held that:
[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct . . . the court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. (Emphasis added.)Id.; Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000) (confirming the Strickland analysis).
In meeting the second prong of the inquiry, a complaining defendant must show that he was prejudiced before being entitled to reversal. Strickland requires that:
[T]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Strickland, at 694.
Petitioner presented this issue in his PCR application and at the evidentiary hearing. (ECF No. 42-3 at 55 (PCR Application), 75-77 (Evidentiary Hearing)). In its order dismissing Petitioner's PCR action, the PCR Court did not explicitly consider whether Trial Counsel was constitutionally ineffective for failing to file a notice of appeal, but instead looked at whether Petitioner knowingly and voluntarily waived his right to appeal pursuant to the White v. State standard. (ECF No. 42-3 at 129-30). The PCR Court also found generally that Petitioner had “not established any constitutional violations or deprivations that would require” the court to grant his PCR application, including ineffective assistance of counsel. (ECF No. 42-3 at 136). The State conceded the White v. State issue and the PCR Court found “sufficient evidence to show [Petitioner] did not knowingly and intelligently waive his right to a direct appeal from his conviction.” (ECF No. 42-3 at 130).
Petitioner argues Trial Counsel deprived him of his right to appeal. (ECF No. 1 at 5). However, based on the PCR Court's finding, Petitioner received a full merits review of his direct appeal issues. (See ECF Nos. 42-5, 42-7, 42-9, 42-11, 42-12). Accordingly, even if Trial Counsel's failure to file a notice of appeal was error, Petitioner fails to show any resulting prejudice. Petitioner fails to satisfy Strickland's standard and Respondent's motion for summary judgment should be granted as to Ground One.
Ground Two
In Ground Two, Petitioner alleges the State made improper statements during its closing argument and Trial Counsel was ineffective for failing to object to those statements. (ECF No. 1 at 7). Petitioner refers specifically to the solicitor's comments regarding Petitioner's right to remain silent, characterization of Petitioner as a “liar,” and statements “pitting” Petitioner against State witnesses to improperly bolster the State's case. (ECF No. 1 at 7). Respondent contends this ground is partially procedurally barred and the preserved portion fails on the merits. (ECF No. 42 at 14-15).
At trial, the State's witnesses testified generally that Petitioner hit the victim in the face, the victim got ready to hit him back, and Petitioner pulled out a gun and shot her. (See generally ECF No. 42-1 at 62 to 42-2 at 79). As additional support for its theory of the events, the State called a forensic pathologist who testified regarding the bullet's likely trajectory based on the victim's wounds and other evidence from the scene. (ECF No. 42-2 at 52-78). Petitioner testified on his own behalf and stated he was trying to break up a fight between his pregnant girlfriend and another woman and his gun accidentally discharged while he and the victim were both grabbing it. (ECF No. 42-2 at 114-150).
During his closing argument, the solicitor summarized the State's version of the facts, including a new theory that the victim ducked right before she was shot, and the witness testimony supporting that version and then summarized Petitioner's testimony that the shooting was an accident. (ECF No. 42-2 at 190-9 to 42-3 at 1). The solicitor told the jury to decide who was telling the truth based on the witnesses' character and their motivations for testifying and suggested what those motivations might be. (ECF No. 42-2 at 192 to 42-3 at 2). Regarding Petitioner, the solicitor reminded the jury that he did not go to the police immediately but when he did, he told them a story that differed from his trial testimony. (ECF No. 42-3 at 2). The solicitor implied that the pathologist's testimony supported the State's version of events and contradicted Petitioner's testimony and told the jury Petitioner's story was “proven to be a lie” by the pathologist's testimony. (ECF No. 42-3 at 3-9). The solicitor explicitly told the jury Petitioner was lying two other times during his closing argument. (See ECF No. 42-3 at 4, 5).
In his PCR application and at the evidentiary hearing, Petitioner alleged Trial Counsel was ineffective for failing to object to the solicitor's comments about the bullet's trajectory. (ECF No. 42-3 at 56-57, 77-78). He argued his case hinged on whether the jury believed his story or the State's, so he was prejudiced by the solicitor's improper bolstering of the State's witnesses. (ECF No. 42-3 at 57).
At the evidentiary hearing, Trial Counsel agreed there was a possible issue of fact as to how the victim was shot and whether the gun discharged accidentally. (ECF No. 42-3 at 82). He stated the defense strategy was to establish that the shooting was an accident and that he honestly believed that to be the truth. (ECF No. 42-3 at 86-87). Specifically regarding the solicitor's closing argument, Trial Counsel agreed the solicitor's description of how the shooting occurred extrapolated on the facts presented at trial, but testified he did not find the statements objectionable. (ECF No. 42-3 at 89-90). He testified he probably had concerns about the solicitor's pitting witnesses against each other and saying Petitioner was lying but that, again, he did not find the argument objectionable under the law. (ECF No. 42-3 at 91). Trial Counsel explained solicitors have a right just like the defense lawyer to present its case to the jury ....[T]he state is entitled to put on its case just like I'm entitled as a defense lawyer to defend my client [J]ust like when I got up there, . . . I was calling all of these other witnesses basically liars, saying hey look, no, that's not what happened and it's not what was said, and that's not what was done because that's what we do. It's an adversarial process and that's what we do in the adversarial process. (ECF No. 42-3 at 92). Trial Counsel further explained that, as part of his general trial strategy, he would not object to something that was not “hurting” his case because constantly objecting could alienate the jury or make them think “you're lying or you're hiding something.” (ECF No. 42-3 at 97-98). So, as a matter of strategy, he reserved objections for things that were prejudicial to his client or violated the rules. (ECF No. 42-3 at 98).
The PCR Court described Petitioner's allegation as one that Trial Counsel was ineffective for failing to object to the State's closing argument “that the victim must have ducked during the fatal confrontation.” (ECF No. 42-3 at 133). The court summarized the forensic pathologist's trial testimony, Trial Counsel's crossexamination of the forensic pathologist, and the solicitor's closing argument. (ECF No. 42-3 at 133-35). The PCR Court recounted Trial Counsel's testimony at the evidentiary hearing that he did not object because the solicitor was arguing reasonable inferences based on the record evidence and that the evidence supported more than one theory of events. (ECF No. 42-3 at 135). The court found Trial Counsel was not deficient and Petitioner did not suffer any prejudice. (ECF No. 42-3 at 135). To the contrary, the court concluded:
Counsel's judgment is entirely accurate, and based upon review of the testimony at trial, the Court finds the State's theory-in-closing that the victim instinctively moved upon seeing Applicant's gun is based upon reasonable inferences drawn from the testimony of [the forensic pathologist]. As such, there was no basis for Counsel to object.(ECF No. 42-3 at 135).
Petitioner asserts the PCR Court's order failed to address his claims, Trial Counsel should have known “the courts have a well defined dissatisfaction with closing arguments that address an accused's silence, character, and vouching for witnesses,” and that Trial Counsel did not find the solicitor's comments objectionable because he “engaged in the same conduct and had cases overturned” on that basis when he was a solicitor. (ECF No. 49 at 3). Respondent argues Petitioner is procedurally barred from challenging Trial Counsel's failure to object to the solicitor's comments pitting the Petitioner against the State's witnesses, calling him a liar, and addressing his right to remain silent because Petitioner failed to raise those claims in state court. (ECF No. 42 at 8).
As detailed above, Petitioner raised all of these claims, except for his challenge concerning the solicitor's comments about his right to remain silent, in his PCR application. The evidentiary hearing testimony centered on Trial Counsel's failure to object to the solicitor's description of how the shooting occurred and implications that Petitioner's version was not true. The PCR Court's order focused on the same, looking more closely at whether the forensic pathologist's testimony could support multiple versions of events and thus support Trial Counsel's reasoning for not objecting. The court's analysis of this central issue encompasses all of Petitioner's allegations because it underlies the solicitor's argument that Petitioner was lying and the State's witnesses were telling the truth.
Petitioner alleges the solicitor “viciously attacked [his] silence to Police.” (ECF No. 1 at 7). However, the solicitor merely stated Petitioner did not immediately go to the police following the shooting, but spoke to the police the following day and told them a story that differed somewhat from his trial testimony. (ECF No. 42-3 at 2-3). Petitioner testified to the same. (See ECF No. 42-2 at 115-31 (describing the shooting, running from the scene, and turning himself in and giving a statement to police the next day)).
In fact, Respondent references Trial Counsel's PCR testimony that he had “concerns about the solicitor's closing argument (re: pitting the testimony of witnesses in a way that suggested his client was lying).” (ECF No. 42 at 14).
Petitioner fails to show the state court unreasonably decided this claim. Under South Carolina law, the solicitor cannot vouch for the credibility of a witness by expressing or implying his personal opinion as to the witnesses' truthfulness. However, as long as the solicitor stays within the record and its reasonable inferences, he has a right to give his version of the testimony and comment on the weight and credibility of the witnesses during the trial. See State v. Raffaldt, 456 S.E.2d 390, 393 (S.C. 1995) (where case was basically a swearing contest, it was proper for solicitor to comment on the credibility of the witnesses by contrasting the testimony of the defendant and the state's witnesses); see also United States v. Sarno, 73 F.3d 1470, 1496-97 (9th Cir. 1995) (finding no error where prosecutor said defendant lied and noting “[i]t is hardly surprising that, in a case turning upon the ‘falsehood' of certain representations, the prosecution would attempt to persuade the jury that those representations were in fact lies”); United States v. Molina, 943 F.2d 1440, 1444 (9th Cir. 1991) (“In a case that essentially reduces to which of two conflicting stories is true, it may be reasonable to infer, and hence to argue, that one of the two sides is lying.”).
In addition, even if the solicitor's comments could possibly be considered impermissible vouching, Trial Counsel's testimony shows that he understood the relevant legal concept and chose, based on his professional understanding, not to object. That is exactly the type of decision Strickland protects. See also Sexton v. French, 163 F.3d 874, 885 (4th Cir. 1998) (finding whether to raise an objection is a tactical decision). Petitioner fails to show the state court decided this issue unreasonably and summary judgment should be granted on Ground Two.
Ground Three
In Ground Three, Petitioner asserts Trial Counsel was ineffective for failing to inform the Trial Court that he was related to the victim and therefore operating under a conflict of interest. (ECF No. 1 at 8). Respondent contends Petitioner fails to show the PCR Court unreasonably applied federal law or based its decision on an unreasonable determination of the facts. (ECF No. 42 at 18).
At the PCR evidentiary hearing, Trial Counsel testified that, after he was retained and five or six months before the trial, he discovered the victim was his second or third cousin. (ECF No. 42-3 at 79-80). Trial Counsel stated he was not close to the victim and never had any relationship with her. (ECF No. 42-3 at 80). He testified that he promptly informed Petitioner of the potential conflict and offered to get off the case if Petitioner was uncomfortable with his continued representation. (ECF No. 42-3 at 80-81).
In his response to Respondent's motion for summary judgment, Petitioner clarifies that “the PCR record is undisputed that both counsel and Petitioner knew of [the] conflict of interest” and “what is in dispute is . . . whether trial counsel had an obligation to inform [the] trial court.” (ECF No. 49 at 1). The PCR Court considered whether Trial Counsel was ineffective for not fully informing Petitioner of his options, how the conflict could impact his representation, and for not informing the Trial Court about the conflict. (ECF No. 42-3 at 130-31). The court found:
Applicant has not met his burden of showing Counsel was ineffective. First, it is uncontested Applicant was informed of and waived any potential conflict of interest presented by Counsel's remote relation to the victim. Applicant presented no evidence to this Court to show that Counsel withheld some aspect of the conflict or misadvised him that would have rendered his waiver unknowing or unintelligent, but only offered a vague assertion that he was not supplied all necessary information to make an informed choice. Second, there is no evidence before this Court of any actual conflict. To the contrary, Counsel's credible testimony made clear there was no meaningful relationship between himself and the victim, or even sufficient familiarity for him to identify the victim, let alone any representation or relationship sufficient to divide Counsel's loyalty Accordingly, this Court finds Applicant has not met his burden of showing an actual conflict of interest ....(ECF No. 42-3 at 132).
Petitioner argues the PCR Court's order was an unreasonable application of facts and law. (ECF No. 49 at 1). Relying on Mickens v. Taylor, 535 U.S. 162 (2002), he alleges Trial Counsel had an obligation to inform the Trial Court of the conflict and the Trial Court then had an obligation to further inquire into whether the conflict would adversely affect Trial Counsel's performance. (ECF No. 49 at 1-3).
Mickens, and the cases on which it relies, address the standard to “demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known.” 535 U.S. at 164. These cases involve situations where a defendant's counsel is “actively representing conflicting interests,” such as where counsel is representing codefendants or counsel's fees are paid by a party with interests divergent from those of his client, and thus is operating under an actual conflict of interest. See id. at 167-70 (discussing Holloway v. Arkansas, 435 U.S. 475 (1978); Cuyler v. Sullivan, 446 U.S. 335 (1980); Wood v. Georgia, 450 U.S. 261 (1981)).
Here, the PCR Court made a factual determination that Trial Counsel was not operating under an actual conflict of interest. (ECF No. 42-3 at 132). That determination was based in part on its finding that Trial Counsel's testimony was credible. (ECF No. 42-3 at 132). “[F]or a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear.” Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008); see also Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (“federal habeas courts [have] no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them”). And this court cannot overturn the state court's factual judgments absent “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
Petitioner's assertion that the PCR Court's factual determinations are “inadequate,” without more, is not enough to meet this high standard. Accordingly, this court must defer to the PCR Court's finding that there was no actual conflict of interest. Absent an actual conflict of interest, and given Petitioner's waiver of any potential conflict of interest, the PCR Court reasonably determined Petitioner failed to show Trial Counsel was ineffective for failing to inform the Trial Court that he was distantly related to the victim. For these reasons, summary judgment should be granted as to Ground Three.
To establish the existence of an actual conflict of interest, an appellant “must show that his interests diverged from his attorney's with respect to a material factual or legal issue or to a course of action.” United States v. Shusterman, 712 Fed.Appx. 253 (4th Cir. 2018) (quoting Stephens v. Branker, 570 F.3d 198, 209 (4th Cir. 2009).
Ground Four
In Ground Four, Petitioner alleges that, pursuant to Jackson v. Virginia, 443 U.S. 307 (1979), the Trial Court erred in denying Trial Counsel's motion for directed verdict because the State's evidence failed to prove murder and the evidence proved defense of others and that the shooting was accidental. (ECF No. 1 at 10). Respondent contends, first, that the court should not consider this ground because Petitioner only asked for relief on Grounds One through Three on his form petition. (ECF No. 42 at 9 (citing ECF No. 1 at 15)). However, Petitioner further argues this ground in his response to the motion for summary judgment, evidencing his intent to pursue relief. (See ECF No. 49 at 3-7). Respondent also asserts Petitioner is not entitled to relief on this ground because he fails to show that no rational trier of fact could have found proof of guilt beyond a reasonable doubt. (ECF No. 42 at 18 (citing Jackson, 443 U.S. at 320-21)). Petitioner raised this issue in his belated White v. State appeal, which the Court of Appeals dismissed on the merits but without analysis. (See ECF No. 42-12).
Claims of insufficiency of the evidence such that a directed verdict should have been granted are cognizable in habeas actions as claims of a denial of due process. However, review in this areas is “‘sharply limited.'” Wilson v. Greene, 155 F.3d 396, 405 (4th Cir. 1998) (quoting Wright v. West, 505 U.S. 277, 296 (1992)). District courts are required to give significant deference to the state court's ruling on motions for directed verdict and similar challenges to the sufficiency of evidence to convict because “[f]ederal review of the sufficiency of evidence to support a state conviction is not meant to consider anew the jury's guilt determination or to replace the state's system of direct appellate review.” Wilson, 155 F.3d at 405-06. This deference requires this court to consider that “a defendant is entitled to relief only if ‘no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'” Id. (quoting Jackson, 443 U.S. at 324).
Here, the Trial Court denied Trial Counsel's motion for directed verdict because there was “specific testimony from the witnesses that the defendant intentionally went and procured a weapon, brought that weapon to the scene, intentionally pulled that weapon out, intentionally pointed it at the victim and fired the fatal shot.” (ECF No. 42-2 at 80). The Trial Court further reasoned evidence exists that the trajectory was in a downward manner, that there is evidence of stippling that projects a distance of 2 to 4 feet, the absence of soot as testified by the forensic pathologist, that the gun had to be at least 6 inches to a foot away from the victim when it was fired because there is no soot found, and all of that argues that this was a deliberate and intentional act on behalf of the defendant.
(ECF No. 42-2 at 80-81). For these reasons, the Trial Court found “there would be more than sufficient evidence to support” a guilty verdict and denied Trial Counsel's motion. (ECF No. 42-2 at 81). Trial Counsel renewed his motion at the end of the defense's case and the Trial Court again denied it, finding “there is more than sufficient evidence that exists . . . if the jury believes it, to sustain the conviction for the crimes charged against the defendant.” (ECF No. 42-2 at 167). After the verdict, Trial Counsel again renewed his motions and the Trial Court “reaffirmed” its decision that “there was more than sufficient evidence to submit the case to the jury on the charges as levied by the State of South Carolina.” (ECF No. 42-3 at 36).
Petitioner argues the evidence supports the lesser offense of involuntary manslaughter and does not support every element of voluntary manslaughter. (ECF No. 49 at 5-7). He asks this court to review the facts and determine, “as a matter of state law,” that he could only be found guilty of involuntary manslaughter. (ECF No. 49 at 7). That type of determination is not within the province of this court.
Further, as discussed above, the evidence at trial supported multiple versions of the events leading to the shooting. The jury was charged on all three possible verdicts-murder, voluntary manslaughter, and involuntary manslaughter-and was instructed to give Petitioner the benefit of the doubt, consider whether the shooting was an accident, and that it was its job to judge the witnesses' credibility. (ECF No. 42-3 at 13-28). Petitioner merely offers excerpts from the trial he feels support his version of the facts. (See ECF No. 49 at 4-7). These excerpts fail to show there was insufficient evidence such that no rational trier of fact could have found Petitioner guilty beyond a reasonable doubt and Petitioner's argument fails to show the state court's dismissal of this claim was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or “based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d)(1), (2). Accordingly, summary judgement should be granted as to Ground Four.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's motion for summary judgment (ECF No. 43) be GRANTED in its ENTIRETY, and the petition be dismissed.
The parties' attention is directed to the important notice on the next page.