REPORT OF MAGISTRATE JUDGE

KEVIN F. McDONALD, Magistrate Judge.

The petitioner, a state prisoner who is 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 post-trial petitions for relief and submit findings and recommendations to the District Court.

BACKGROUND

The petitioner is currently incarcerated at Lieber Correctional Institution in the South Carolina Department of Corrections (doc. 1 at 1). He was indicted by the Williamsburg County Grand Jury in October 2009 for one count of criminal sexual conduct ("CSC") with a minor in the first degree and one count of CSC with a minor in the second degree (2009-GS-45-249) and for the same counts in an amended indictment in January 2010 (app. 347-50).1 On January 25, 2010, the petitioner went before the Honorable Clifton Newman for a plea hearing. The plea hearing broke down when the petitioner told the trial court he did not wish to waive his right to trial. The State thereafter called indictment 2009-GS-45-249 to trial that same day (app. 7, 17). At trial, Richard Strobel represented the petitioner. Kimberly Barr appeared on behalf of the Third Circuit Solicitor's Office for the State (app. 9).

Underlying Case Facts

The following facts were testified to at the petitioner's trial. A nurse who treated the minor testified that the petitioner had impregnated his girlfriend's young cousin ("victim") (app. 64-65, 76). The victim was eleven at the time the pregnancy was discovered. During the trial, there was a question of fact regarding whether the petitioner was having sex with the victim before her eleventh birthday in 2009 (app. 166). CSC with a minor first degree requires a sexual battery to have occurred upon a minor under the age of eleven. S.C. Code Ann. § 16-3-655(A). CSC with a minor second degree applies to a sexual battery with a minor between the ages of eleven and fourteen. Id. § 16-3-655(B). Testimony established that the petitioner had been engaging in sex with the victim since she was ten years old (app. 64-66, 80, 123, 193). The victim testified that the petitioner forced himself on her between five and ten times beginning during the summer of 2008 (app. 125). The victim testified that she told the petitioner to stop, but that did not work, so she "just gave up" (app. 128). Medical examination showed that the victim had old injuries consistent with sexual abuse and two sexually transmitted diseases (app. 147-49). A DNA analysis conducted with fetal tissue extracted from the victim showed that the fetus was consistent with being the offspring of the victim and the petitioner (app. 212). Doctors determined that the date of conception was May 21 or 22, 2009 (app. 193).

The petitioner's girlfriend, who was the victim's cousin, testified on the petitioner's behalf (app. 219). The girlfriend testified that the victim was always chaperoned by an adult when she visited the apartment where the acts were alleged to have occurred, and that the victim would not be at that apartment babysitting as the victim claimed (app. 225-27). However, the girlfriend testified on cross-examination that there was no doubt in her mind that the petitioner had sexual intercourse with the victim (app. 237).

The petitioner took the stand in his own defense to state that he had not engaged in sexual relations with the victim before February 5, 2009, but that he had engaged in sexual relations with her after February 5, 2009, and before her pregnancy was discovered (app. 244). The victim's birthday was February 8th (app. 59). On cross-examination, the petitioner appeared to claim that the victim came onto him, but denied followup questions to clarify his statement (app. 247-49). Then, he made an admission "to intercourse with a child at eleven" (app. 249-51).

After a three-day trial, the jury found the petitioner guilty of both CSC with a minor first degree and second degree (app. 283). Judge Newman sentenced the petitioner to twenty-five years for CSC with a minor first degree and twenty years for CSC with minor second degree, to run concurrent (app. 307-08). The petitioner did not pursue a direct appeal.

PCR

On September 29, 2010, the petitioner filed an application for post-conviction relief ("PCR") (2010-CP-45-00389) by and through his counsel, Tara Shurling. This application was incorrectly filed as it pertained not only to the indictment number upon which the petitioner was convicted at trial, but also to a second indictment number for a separate offense to which the petitioner pled guilty. An amended PCR application filed June 12, 2012, did the same (app. 310-23).

On February 25, 2013, the petitioner filed a second amended PCR application that pertained to the proper indictment number (app. 329-35). The petitioner made the following allegations in his application:

(App. 331).

The State made a return dated October 28, 2013 (app. 336-41). The petitioner filed a third amended PCR application, alleging the following claims:

(App. 342-45).

The petitioner's PCR evidentiary hearing took place on May 27, 2014, before the Honorable R. Ferrell Cothran, Jr. Counsel Shurling appeared on behalf of the petitioner, and Assistant Attorney General Daniel Gourley appeared on behalf of the State (app. 363). The petitioner and his trial counsel testified (app. 364). During testimony, Counsel Shurling moved to amend the petition to add claims related to the trial testimonies of Robin Griggs and Trina Hamlet (app. 487).

Judge Cothran denied and dismissed the petitioner's application in its entirety by order of dismissal filed August 25, 2014 (app. 511-40). On October 15, 2014, the petitioner filed a motion to alter or amend judgment to consider, inter alia, additional claims added to the application at the time of the hearing (app. 541-46). The motion referenced the petitioner's own proposed order that had been submitted prior to issuance of the order of dismissal (app. 482-510). The State made a return in opposition (doc. 29-4).

In an order filed December 5, 2014, Judge Cothran granted the petitioner's motion to alter or amend in part, adding findings to its initial order of dismissal pertaining to the trial testimony of witness Robin Griggs (app. 547-51). The petitioner timely filed a notice of appeal (app. 552-53).

PCR Appeal

Counsel Shurling continued the petitioner's representation on PCR appeal (doc. 29-5). The petition for writ of certiorari presented the following issues:

(Doc. 29-5 at 3).

In addition, the petition for writ of certiorari presented additional issues in an effort to garner a belated direct appeal pursuant to White v. State, 208 S.E.2d 35 (S.C. 1974) (in absence of timely direct appeal, a defendant can petition the appellate court for a review of the record to determine where a meritorious ground for appeal exists). Those issues appeared as follows:

(Doc. 29-5 at 4).

On November 16, 2015, the State made the return to the petition (doc. 29-6). The petitioner, by and through counsel, filed a reply (doc. 29-7). The Supreme Court summarily denied the petition by order filed December 2, 2016 (doc. 29-8). The court issued its remittitur on December 20, 2016, and it was filed by the Williamsburg County Clerk's Office on December 22, 2016 (doc. 29-9).

FEDERAL PETITION

On March 13, 2017, the petitioner filed his § 2254 petition (doc. 1). On May 4, 2017, the petitioner filed an amended petition, which added grounds to the original petition (doc. 21). On July 6, 2017, the respondent filed a motion for summary judgment (doc. 28) and a return and memorandum (doc. 29). By order filed the same date, pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975), the petitioner was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion (doc. 30). On September 1, 2017, the petitioner filed his response in opposition to the motion for summary judgment (doc. 36).

In his federal habeas corpus petition, the petitioner makes the following claims:

(Doc. 21 at 5, 22).

In his amended petition, the petitioner presents the following claims for habeas relief:

(Doc. 21-1 at 1-42). To each claim in the amended petition, the petitioner incorporated the arguments presented in Counsel Shurling's petition for writ of certiorari (doc. 29-5) filed in the South Carolina Supreme Court.

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.

Exhaustion

The respondent acknowledged that the petitioner has technically exhausted his state court remedies and that the petition is timely (doc. 29 at 15-17).

Procedural Default — Ground Three

The respondent argues that Ground Three of the petitioner's amended petition is procedurally barred (doc. 29 at 18-20). The PCR court stated in the order of dismissal that the petitioner wished to abandon this ground and expressly found it so abandoned (app. 457-59, 514) ("During the evidentiary hearing, Applicant stated that he did not intend to pursue issues regarding alibi witnesses or character witnesses. Therefore, this Court finds Applicant has abandoned [these issues]"). The issue was not presented on PCR appeal (doc. 29-5). In his response to the motion for summary judgment, the petitioner agrees that this ground is procedurally barred and states that he wishes to withdraw Ground Three (doc. 36 at 24). Accordingly, this ground should be dismissed.

Merits Review

Because the petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997). Under the AEDPA, federal courts may not grant habeas corpus relief on any claim that was adjudicated on the merits in state court unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable application of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d)(1), (2). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411 (2000). Moreover, 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).

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. Strickland v. Washington, 466 U.S.668, 687-94 (1984). Strickland does not guarantee perfect representation, only a "`reasonably competent attorney.'" Id. at 687 (quoting McMann v. Richardson, 397 U.S. 759, 770 (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:

Harrington v. Richter, 562 U.S. 86, 104 (2011) (internal citations omitted).

Initial Petition

Ground One

In Ground One of his initial § 2254 petition, the petitioner alleges that trial counsel failed to preserve his right to direct appeal (doc. 21 at 5). Specifically, he states that trial counsel's PCR testimony "reveals that he may have advised, in a rushed matter, an appeal to Petitioner," but he did not file notice of a direct appeal as the petitioner testified he requested (id. at 5, 22). The PCR court denied the petitioner's claim that counsel "was ineffective for failing to advise and file a Notice of Appeal":

(App. 537-38).

Counsel testified at PCR that he "very quickly" told the petitioner post-trial about his rights and the deadline to file a notice of appeal (app. 419). Counsel further testified as follows: "I asked him, `Do you want me to appeal?' and he said, "No," but he didn't tell me not to appeal. I asked him, "Do you want me to appeal this? If you do, you've got 10 days from today to file the appeal.' He didn't say anything." (app. 421). The petitioner testified in the PCR hearing that he did want an appeal, and his attorney neither filed one nor discussed that right with him (app. 477).

Pursuant to applicable precedent of the Supreme Court of the United States, there exists no per se rule requiring the filing of a direct appeal under every circumstance. Roe v. Flores-Ortega, 528 U.S. 470, 478. Under Roe, "where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, . . . the question whether counsel has performed deficiently by not filing a notice of appeal is best answered by first asking . . . whether counsel in fact consulted with the defendant about an appeal." Id. That consultation takes on "a specific meaning" under Roe, that is, "advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes." Id. The Court further stated that if counsel "has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal." Id. Where counsel has not consulted with the defendant, the court must determine whether counsel's failure to consult with the defendant itself is deficient performance. Id. The Court held as follows:

Id. at 480 (citation omitted).

As set out above, the PCR court found trial counsel's testimony credible and the petitioner's testimony not credible in determining that trial counsel did in fact consult with the petitioner about an appeal, and the petitioner did not ask counsel to file a notice of appeal on his behalf (app. 537). This credibility determination in favor of trial counsel constitutes a factual determination entitled to deference in this action. Elmore v. Ozmint, 661 F.3d 783, 850 (4th Cir. 2011) ("We must be `especially' deferential to the state PCR court's findings on witness credibility, and we will not overturn the court's credibility judgments unless its error is `stark and clear.'"). Such a determination is "presumed to be correct absent clear and convincing evidence to the contrary, and a decision adjudicated on the merits and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The petitioner has failed to make such a showing (see doc. 36 at 9-13).

The state court's denial of this claim was neither contrary to nor an unreasonable application of applicable Supreme Court precedent nor was it based on an unreasonable application of the facts in light of the evidence presented at the state court proceeding. Therefore, summary judgment should be granted on this ground for relief.

Amended Petition

Ground One

In this ground, the petitioner raises an ineffective assistance of counsel allegation encompassing his trial counsel's handling of the Batson2 motion raised by the State and granted by the trial court. The ground is presented in eight subsections, each pertaining to a specific alleged flaw in counsel's response to the State's motion (doc. 21-1 at 1-2). This issue is preserved for habeas review because each of its eight subsections were individually addressed by the PCR court in the order of dismissal and because the petitioner's appellate PCR counsel raised the aggregated Batson allegations on appeal.

The trial court found that the peremptory strikes utilized by the petitioner at his own behest were not race- or gender-neutral, finding them pretextual and violative of Batson (app. 29-41). The court delineated that pretextual strikes were exercised on Jurors 128, 82, 196, 66, and 131 (app. 40). The petitioner elected to strike these jurors, and his counsel obliged (app. 38-39). The petitioner alleges now, as he did at PCR, that counsel should have (1) more sufficiently argued that the reasons for each strike proffered by the petitioner were race- and gender-neutral, (2) more sufficiently opposed the need to strike a second jury by arguing against the court's granting the Batson motion, (3) more sufficiently repeated the petitioner's reasons for striking each juror, (4) more sufficiently explained to the petitioner that the reason for each strike had to be fully stated for the record, (5) properly advised the petitioner that in order to preserve the record for appeal from the trial court's Batson ruling, the petitioner had to fully articulate the reasons for each of his strikes, (6) better articulated the reasons for the strikes, (7) re-stricken five jurors from the second jury who were stricken by the petitioner during the first jury selection, and (8) refrained from characterizing the petitioner's reasons for striking Juror 96 as "an excuse" (doc. 21-1 at 1-2; app. 512-13).

The PCR court found as follows as to these grounds:

(App. 522-31) (emphasis added).

As to each claim, the PCR court also noted:

(App. 522-31). The PCR court also repeatedly found that the petitioner failed to present "what more" counsel could have done to argue in opposition to the Batson motion, and the petitioner "did not present sufficient evidence to support a finding that counsel's alleged error resulted in a violation of Petitioner's right to a trial by a competent and impartial jury" (app. 522-31).

In his response in opposition to the respondent's motion for summary judgment, the petitioner argues that the "trial court erred in granting the State's Batson motion and quashing the first jury panel" (doc. 36 at 16), and his response focuses on the trial court's ruling (id. at 16-18). This is not a ground alleged in the amended petition (doc. 21-1 at 1-2), and therefore it is not properly before the court. See White v. Roche Biomedical Labs., Inc., 807 F.Supp. 1212, 1216 (D.S.C. 1992) (noting that "a party is generally not permitted to raise a new claim in response to a motion for summary judgment"). With regard to his ineffective assistance of counsel ground that is properly before the court, the petitioner makes only the conclusory allegation that trial counsel made no effort to advocate for his rights in the Batson hearing and was ineffective in "failing to object to the trial court's finding that Petitioner's peremptory strikes were used because he did not like the way they looked" (id. at 18).

To challenge the constitutionally-mandated exercise of neutrality in preemptory strikes, a movant must demonstrate the proponent of the strike used peremptory challenges to remove from the venire members of a protected class and that other facts and relevant circumstances raise an inference the proponent of the strike did so to exclude the veniremen from the jury on account of their inclusion in the protected class. Batson, 476 U.S. at 96-97. The record supports the PCR court's findings in relation to the Batson issues. At the initial jury selection, out of the petitioner's twelve total strikes (included those for alternate jurors), he exercised eight on Caucasians and nine on females (app. 29). Two of the jurors who made it to the panel were Caucasian, with one being sworn after the expiration of the petitioner's peremptory challenges (app. 30). Counsel made it clear at trial and at PCR that the petitioner was highly influential in the initial jury-strike, requesting that certain jurors be struck (app. 31, 382). Counsel articulated to the trial court which jurors counsel struck on his own accord (app. 34-35). As noted by the respondent, the trial court found that the reasons provided by counsel for those particular jurors were race- and gender-neutral (app. 38-39).

Trial counsel defended the Batson motion by informing the court that his "client says that he didn't strike under the Batson — he didn't strike anybody because of race or gender. He struck by the way they presented themselves to him and the way they answered the questions and the way that they looked at him in particular" (app. 31). Counsel further argued:

(App. 31-32). The petitioner's counsel then articulated the individual reasons for striking each challenged juror (app. 33-36).

At the PCR hearing, counsel repeated that the petitioner requested the jurors be struck based on the way they dressed, looked, and acted (app. 415-16). He further testified that he did not see a sufficient basis to strike the jurors, but he indulged the petitioner's request to strike the jurors and gave the explanation elicited from the petitioner as to why the jurors were struck (app. 415-16). Counsel stated that he could not have argued or developed the petitioner's reasons for striking any better (app. 416-17). He further testified that he did not have a basis to strike the jurors during the second jury selection process and opined that the petitioner had a fair and impartial jury at trial (app. 416-17).

In ruling on the Batson issues, the PCR court cited the appropriate Strickland two-pronged standard for evaluating allegations of ineffective assistance of counsel (app. 521). The PCR court further recognized that the process of jury selection inherently falls within the expertise and experience of trial counsel and that "`a criminal defendant has no right to a trial by any particular jury, but only a right to a trial by a competent and impartial jury'" (app. 521) (quoting Palacio v. State, 511 S.E.2d 62 (S.C. 1999)). Further, the PCR court repeatedly found that trial counsel's testimony was credible and the petitioner's testimony was not credible (app. 522-31). This court cannot make a new determination as to that credibility finding absent clear and convincing evidence to the contrary, which the petitioner has not provided. 28 U.S.C. § 2254(e)(1); Elmore, 661 F.3d at 850.

Furthermore, the PCR court properly found that the petitioner presented no credible evidence that trial counsel's alleged failure to present various arguments to strike the same jurors a second time violated his right to a trial by a competent and impartial jury (app. 529) (citing State v. Franklin, 456 S.E.2d 357 (S.C. 1995) (stating that jurors stricken from the quashed jury panel should not be stricken during the second jury selection absent some new, neutral reason)). The petitioner testified at the PCR hearing that a stricken juror would have held an inherit bias against him stemming from the initial strike and that those jurors should have been stricken during the second jury selection for that reason (app. 441-44). But as found by the PCR court, the petitioner failed to present any credible evidence that any juror was biased against him as the reasons for the strikes were heard outside of the presence of the jury (app. 29, 471-72).

The state court's denial of the Batson claims was neither contrary to nor an unreasonable application of applicable Supreme Court precedent nor was it based on an unreasonable application of the facts in light of the evidence presented at the state court proceeding. Therefore, summary judgment should be granted on this ground for relief.

Ground Two

In this ground, the petitioner claims that trial counsel did not "fully articulate" his objection to the testimony of Nurse Barbara Gregg, a State's witness, and that counsel further did not "present appropriate authority in support" of that objection (doc. 21-1 at 3). The PCR court ruled on this issue (app. 513, 517, 520, 532), and it was raised in the PCR appeal (app. 32-33, 513). Accordingly, it is preserved for federal habeas review.

Nurse Gregg's testimony established details related to the child victim's initial doctor's visit at which it was discovered that she was pregnant (app. 62-81). The PCR court dismissed the claim of ineffective assistance for failure to adequately object to her testimony largely upon the basis that counsel did in fact object to the nurse's testimony on multiple occasions, finding as follows:

(App. 532).

The record reflects that trial counsel objected to Nurse Gregg's testimony several times in reference to potential hearsay testimony (app. 65-66, 68-75, 77-79). As argued by the respondent, the fact that the State responded to counsel's objection by naming a hearsay exception indicates that the purpose and authority in support of counsel's objection was sufficient. Further, the trial court twice held in limine hearings to hear counsel's argument against admissibility of Nurse Gregg's testimony (app. 70-75, 77-79). As the PCR court noted, trial counsel argued against the State's assertion that the victim's statement to Nurse Gregg fell within the excited utterance exception to the hearsay rule, and he articulated a sufficiently specific reason to preserve the issue for appellate review (app. 532).

Further, as noted by the PCR court, trial counsel testified at the PCR hearing that he did not object as to whether some of Nurse Gregg's comments would inflame the passions of the jury nor did he object to her testimony as hearsay within hearsay. Rather, he testified that he articulated the proper objection to the best of his abilities, and the trial judge overruled some of those objections. Moreover, trial counsel testified that he knew the victim would be testifying, and anything elicited from Nurse Gregg would be corroborated by the victim (app. 517).

"Because it may be tempting to find an unsuccessful trial strategy to be unreasonable, `a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Carter v. Lee, 283 F.3d 240, 249 (4th Cir. 2002) (quoting Strickland, 466 U.S. at 689) (additional internal citations omitted)). The petitioner has done nothing to rebut this presumption. He has failed to establish that trial counsel's actions fell outside the wide range of reasonable, professionally competent assistance. See Strickland, 466 U.S. at 689 ("[C]ounsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case."). Moreover, the petitioner has failed to demonstrate that he was prejudiced by counsel's alleged deficiency in this regard.

Based upon the foregoing the state court's denial of this claim was neither contrary to nor an unreasonable application of applicable Supreme Court precedent nor was it based on an unreasonable application of the facts in light of the evidence presented at the state court proceeding. Therefore, summary judgment should be granted on this ground for relief.

Ground Four

In this ground, the petitioner alleges that counsel should have requested a continuance when, just days before his case was called to trial, the indictment for CSC with a minor second degree was amended to add a charge for CSC with a minor first degree. The petitioner alleges that he "was not made aware of the more serious charge brought in the new indictment until immediately before trial" (doc. 21-1 at 4). This claim was raised to and ruled upon by the PCR court (app. 514, 533), and it was also pursued on PCR appeal (doc. 29-5 at 30-32). Accordingly, it is preserved for review.

On October 8, 2009, the petitioner was indicted on two counts, CSC with a minor first degree and CSC with a minor second degree (app. 347-48). The statutory description of the charges, though properly labeled and the proper statutory sections cited, described each charge as occurring to "a child under the age of eleven (11) years old" (app. 348). CSC with a minor first degree requires a sexual battery to have occurred upon a minor under the age of eleven. S.C. Code Ann. § 16-3-655(A). CSC with a minor second degree applies to sexual batteries with a minor between the ages of eleven and fourteen. Id. § 16-3-655(B). On January 21, 2010, it appears that the petitioner was re-indicted for the same charges, but with the proper statutory language (compare app. 347-48 with 349-50). He proceeded to trial on January 25, 2010.

The PCR court addressed this ground and found:

(App. 533).

As argued by the respondent, the record indicates that the petitioner's charge was never enhanced. Rather, the statutory language within the indictment was amended to reflect the differences in the properly-labeled statutory subsections applying to each named charge (compare app. 347-48 with app. 349-50). At the PCR hearing, the petitioner testified that counsel told him about the new indictment either on the Thursday before he was scheduled for trial or on the day when he appeared to plea (app. 436). The petitioner complained that that he never saw the actual indictment until after he was convicted (app. 437). The petitioner testified that trial counsel met with him the week prior to trial, and they were "preparing for a plea," but the petitioner chose not to go through with the plea because he disputed whether he engaged in intercourse with the victim prior to her eleventh birthday, which was the basis of the first degree CSC charge (app. 438-40). The petitioner testified that trial counsel did not discuss with him the possibility of requesting a continuance once the plea fell through (app. 446).

The PCR court's finding that trial counsel's performance did not fall below professional norms of reasonableness is supported by the record. At the PCR hearing, trial counsel testified that, during the plea, he was prepared and had no indication that the case would be proceeding to trial, but then the petitioner's "personality set in and he said he wanted a jury trial, so we proceeded with a jury trial" (app. 373). Counsel testified that a continuance was not one of his considerations; he was prepared to challenge the charges at trial, including the State's position that the victim was younger than eleven years old when the initial sexual conduct happened (app. 388-89). The PCR court found trial counsel's testimony to be credible and the petitioner's testimony to be not credible (app. 533). This is a deferential factual finding that the petitioner has again failed to challenge with clear and convincing evidence to the contrary.

The PCR court's finding that the petitioner failed to show resulting prejudice is also supported by the record. The petitioner has failed now and at PCR to present any credible arguments or evidence to demonstrate how additional preparation would have resulted in a different outcome at trial. He has failed to proffer any additional witnesses, trial strategy, or discovery that would have aided trial counsel's preparation had a continuance been granted.

Based upon the foregoing the state court's denial of this claim was neither contrary to nor an unreasonable application of applicable Supreme Court precedent nor was it based on an unreasonable application of the facts in light of the evidence presented at the state court proceeding.

Ground Five

This allegation concerns the testimony of a law enforcement agent Trina Hamlet. The petitioner claims that Hamlet offered hearsay testimony, and trial counsel did not object. He also claims that this testimony improperly bolstered the credibility of the victim, therefore prejudicing the petitioner (doc. 24-1 at 4). The petitioner first made this specific allegation at the PCR evidentiary hearing (app. 410). In the order of dismissal, the PCR court addressed the claim, footnoting that it would do so in the "interest of finality and judicial economy" (app. 534 n.1). The petitioner appealed that ruling (doc. 29-5 at 32-35), and, therefore, this claim is preserved for merits review.

The petitioner argues that Hamlet's testimony included statements the victim made to her "that went far beyond statements concerning time and place of a sexual battery." In particular, Hamlet "was allowed to repeat statements by the girl concerning who she had sex with and that the sexual intercourse was forced" (doc. 21-1 at 4, 38). The testimony at issue consists of Hamlet describing the physical and emotional state of the victim when Hamlet interviewed her at the doctor's office (app. 178). Hamlet testified, "She said that Kevin Bradley had forced having sex with her . . . since the summer before, in 2008" (app. 178-79).

The PCR court ruled as follows on this issue:

(App. 535-36).

"The rule against hearsay prohibits the admission of evidence of an out-of-court statement to prove the truth of the matter asserted unless an exception to the rule applies." Dawkins v. State, 551 S.E.2d 260, 262 (S.C. 2001). As the PCR court noted, South Carolina evidentiary rules allow limited corroborative testimony in criminal sexual conduct cases when the victim testifies. Id.; Rule 801(d)(1)(D), SCRE. The corroborative testimony is restricted to the victim's statement to the time and place of the sexual assault. Dawkins, 551 S.E.2d at 262. Accordingly, had counsel objected to Hamlet's testimony, it was admissible insofar as it identified the timing of the encounters as being since the summer of 2008. Id. Any other details or particulars, including the perpetrator's identity, must be excluded. Id. at 262-63.

Assuming for purposes of this motion that trial counsel's failure to object to Hamlet's identification of the named perpetrator was unreasonable, the PCR court appropriately and reasonably applied the Strickland standard in finding that the petitioner failed to show prejudice from the alleged deficiency due to the overwhelming evidence of the petitioner's guilt. At trial, the petitioner admitted to engaging in sexual intercourse with the victim (app. 251). At the PCR hearing, he restated that he caused the child victim's pregnancy (app. 465-66). The petitioner only disputed whether he raped the victim when she was ten years old. He maintained that he was nowhere near the victim in 2008, which was prior to her eleventh birthday, but a police report introduced at trial showed that he dated the victim's cousin in 2008 (app. 466). Moreover, as noted above, Hamlet's testimony that the victim relayed that the incidents began in the summer of 2008 was admissible testimony.

Based upon the foregoing, the state court's denial of this claim was neither contrary to nor an unreasonable application of applicable Supreme Court precedent nor was it based on an unreasonable application of the facts in light of the evidence presented at the state court proceeding.

Ground Six

In this ground, the petitioner claims that trial counsel should have objected to the trial testimony of Robin Griggs as hearsay (doc. 21-1 at 5). This issue was presented to the PCR court in an amendment made at the time of the evidentiary hearing and was addressed by the PCR court in the order granting in part the motion to alter or amend the initial order of dismissal (app. 402-04, 541-50). The petitioner then raised the claim on PCR appeal (doc. 29-5 at 3). Accordingly, it is preserved for review.

The merits of this allegation concern trial counsel's alleged failure to object to Griggs' testimony surrounding her forensic interview with the child victim and whether the failure to do so was a proper exercise in trial strategy (doc. 21-1 at 39-40; doc. 29-5 at 34-35). In its amended order of dismissal, the PCR court explicitly denied the claim:

(App. 547-49).

Here, as noted by the PCR court, trial counsel did in fact object to Griggs' testimony, but the objection was overruled by the trial court (app. 164-65). Moreover, given the overwhelming evidence of the petitioner's guilt as discussed above in Ground Five, the petitioner failed to show any resulting prejudice from trial counsel's alleged deficiency in this regard. Based upon the foregoing, the state court's denial of this claim was neither contrary to nor an unreasonable application of applicable Supreme Court precedent nor was it based on an unreasonable application of the facts in light of the evidence presented at the state court proceeding.

Ground Seven

In this ground, the petitioner alleges that trial counsel was ineffective for failing to object to Griggs' testimony, which exceeded the scope of her qualified area of expertise (doc. 21-1 at 5). The PCR court ruled on this issue in the order granting in part the motion to alter or amend the initial order of dismissal (app. 541-50), and the petitioner raised this allegation on PCR appeal (doc. 29-5 at 3). Accordingly, it is preserved for review.

Griggs was qualified as an expert in the field of forensic interviewing and child abuse assessment (app. 153-54, 404). At trial, Griggs testified that she had no questions or concerns regarding whether the victim was competent at the time of the forensic interview, referencing the victim's ability to know right from wrong. The petitioner's trial counsel did not object (app. 170). The petitioner argues that Griggs should not have been allowed to testify in this regard because she had no background in psychology. He further argues that Griggs' testimony created too great of a risk concerning the jury's potential to equate an assessment of competence with an opinion as to credibility (doc. 21-1 at 5; doc. 29-5 at 36).

At the PCR hearing, counsel agreed that he believed that the question of whether or not the victim could ascertain right from wrong spoke to the question of the victim's credibility and that he did not consider objecting to that testimony as being outside of the expert's field (app. 409-10). The petitioner testified that he felt that Griggs' trial testimony on this point improperly bolstered the victim's credibility (app. 453).

Considering the arguments of counsel and the testimony at trial and at PCR, the PCR court found this claim to be without merit:

(App. 549-50) (emphasis added).

Here, as discussed in detail in Grounds Five and Six, even assuming that trial counsel erred in failing to object to the testimony as an opinion on the credibility of the victim, the PCR court's finding that the petitioner could show no prejudice was reasonable under Strickland as there is no reasonable probability that, but for counsel's alleged error, the result of the proceeding would have been different. Based upon the foregoing, the state court's denial of this claim was neither contrary to nor an unreasonable application of applicable Supreme Court precedent nor was it based on an unreasonable application of the facts in light of the evidence presented at the state court proceeding.

CONCLUSION AND RECOMMENDATION

Wherefore, based upon the foregoing, the respondent's motion for summary judgment (doc. 28) should be granted.

IT IS SO RECOMMENDED.

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:

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).