MARY GORDON BAKER, Magistrate Judge.
The Petitioner, a state prisoner, seeks habeas relief pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Respondent's Motion for Summary Judgment. (Dkt. No. 9; see also Dkt. No. 8.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is authorized to review the instant petition for relief and submit findings and recommendations to the District Court.
The Petitioner, acting pro se, filed the instant action on May 27, 2016. (Dkt. No. 1.) On August 1, 2016, Respondent filed a Motion for Summary Judgment. (Dkt. No. 8; Dkt. No. 9.) On November 10, 2016, Petitioner filed a Response in Opposition to the Motion for Summary Judgment, to which Respondent filed a Reply. (Dkt. No. 20; Dkt. No. 21.)
The Petitioner is currently confined within the South Carolina Department of Corrections ("SCDC"). In March of 2007, the Beaufort County Grand Jury indicted Petitioner for: 1) possession with intent to distribute marijuana; 2) possession with intent to distribute cocaine; 3) possession with intent to distribute ecstacy; 4) trafficking in crack cocaine 10-28 grams; and 5) use of a firearm during commission of a violent crime. (Dkt. 8-3 at 595-603.)
The Petitioner was represented at trial by Corey Fleming, Esq. (Dkt. No. 8-1 at 6.) The Petitioner proceeded to a jury trial before the Honorable J. Ernest Kinard, Jr. on May 24, 2010. (Id. at 5.) The jury convicted the Petitioner on the four drug charges, and acquitted the Petitioner on the gun charge. (Dkt. No. 8-2 at 92-93.) Judge Kinard sentenced the Petitioner to two concurrent twenty (20) year sentences on the possession with intent to distribute marijuana and ecstasy, a concurrent twenty-seven (27) year sentence on the possession with intent to distribute crack cocaine and a concurrent twenty-seven (27) year sentence and $50,000 fine on the trafficking charge (Dkt. No. 8-2 at 341-42.)
The Petitioner appealed and was represented by Nicole Nicolette Mace, Esquire. (See Dkt. No. 8-4.) On December 20, 2011, the Petitioner raised the following issues:
(Dkt. No. 8-4 at 2.)
In an unpublished, per curiam, opinion filed on July 25, 2012, the South Carolina Court of Appeals affirmed the Petitioner's convictions and sentences. (Dkt. No. 8-5.) The matter was remitted to the lower court on August 10, 2012. (Dkt. No. 8-6.)
On November 30, 2012, Petitioner filed an application for post-conviction relief ("PCR"). (Dkt. No. 8-2 at 108-116.) Petitioner stated that his trial counsel was ineffective in:
(Dkt. No. 8-2 at 111.) The State filed a Return on February 25, 2013. (Dkt. No. 8-2 at 147.)
On August 26, 2013, Scott W. Lee, Esquire, filed an amended application for postconviction relief on Petitioner's behalf, in which he cited these additional allegations of ineffective assistance of trial counsel:
(Dkt. No. 8-2 at 144-146.)
On August 27, 2013, an evidentiary hearing was held before the Honorable Deadra L. Jefferson. (Dkt. No. 8-2 at 153.) The Petitioner was present and represented by Scott W. Lee, Esquire. (Dkt. No. 8-2 at 154.) In an order filed March 10, 2014, Judge Jefferson denied the application for post-conviction relief and dismissed the petition. (Dkt. No. 8-3 at 62-88.) The Petitioner filed a Motion to Alter or Amend on April 8, 2014. (Dkt. No. 8-3 at 89-91.) On May 28, 2014, Judge Jefferson denied the Petitioner's motion. (Dkt. No. 8-3 at 92-98.)
Petitioner appealed, and on January 21, 2015, through Chief Appellate Defender Robert M. Dudek, filed a Petition for Writ of Certiorari. (Dkt. No. 8-7, Petition for Writ of Certiorari.) Therein, the Petitioner raised the following issue:
(Dkt. No. 8-7 at 3.) On June 8, 2015, Assistant Attorney General Justin Hunter filed a return to the petition. (Dkt. No. 8-8, Return to Petition for Writ of Certiorari.)
In an order dated October 8, 2016, the Supreme Court of South Carolina denied the petition or a writ of certiorari. (Dkt. No. 8-9.) The Petitioner filed a pro se Petition for Rehearing, which was rejected by the South Carolina Supreme Court in an order dated December 9, 2015. (Dkt. No. 8-10.) The matter was remitted to the lower court on October 26, 2015. (Dkt. No. 8-11.) The remittitur was filed in the Beaufort County Fourteenth Judicial Circuit Public Index on October 28, 2015. (Dkt. No. 8-12.)
In his pro se Petition for Writ of Habeas Corpus, Petitioner makes the following claims of error:
(Dkt. No. 1 at 5-10.) Petitioner also continued his grounds in an attachment to the petition:
(Dkt. No. 1-2.)
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "Facts are `material' when they might affect the outcome of the case, and a `genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party." The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, "`the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.'" Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
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, 322-23 (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:
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 398 (2000). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 410. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
The United States Supreme Court has said that a meritorious ineffective assistance of counsel claim must show two things: first, that counsel's performance was deficient and, second, that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-96 (1984). A court's evaluation of counsel's performance under this standard must be "highly deferential," so as to not "second-guess" the performance. Id. at 689. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (internal quotation marks and citation omitted); see also Bowie v. Branker, 512 F.3d 112, 119 n.8 (4th Cir. 2008); Fields v. Att'y Gen. of Md., 956 F.2d 1290, 1297-99 (4th Cir. 1992); Roach v. Martin, 757 F.2d 1463, 1467 (4th Cir. 1985).
In order to establish the second prong of Strickland, "[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." Strickland, 466 U.S. at 694. A "reasonable probability" has been defined as "a probability sufficient to undermine confidence in the outcome." Id. While Strickland itself is a deferential standard, when both § 2254(d) and Strickland apply, "review is doubly" deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011). Indeed, when § 2254(d) applies, "[t]he question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 562 U.S. at 105.
As noted above, Respondent seeks summary judgment in the instant case. (Dkt. No. 9; see also Dkt. No. 8.) Before turning to the merits of the individual grounds for relief, the undersigned will briefly review the facts of this case.
The case revolves around the execution of a search warrant on a trailer in Beaufort County, South Carolina on February 23, 2007. The Petitioner and others were found there along with drugs and a gun. The allegations were that the Petitioner was running a drug operation out of a trailer he rented in Beaufort County, South Carolina. (Dkt. No. 8-1 at 69-70.) The landlord (Bobby Jenkins) testified that the Petitioner was the sole renter from August of 2004 until the time of the Petitioner's arrest in February of 2007. (Dkt. No. 8-1 at 131-132.) Rent was paid timely in cash by the Petitioner or his girlfriend and the receipts for all monthly payments were all made out to the Petitioner. (Dkt. No. 8-1 at 131-136.) Mr. Jenkins testified that the trailer was rented on a month to month basis and he asked for thirty days' notice if the Petitioner was to move, and the Petitioner never gave notice. (Id. at 128.) If Mr. Jenkins needed to repair something on the property, he would meet with the Petitioner at the site. (Id. at 129.)
Law enforcement was conducting surveillance on the trailer for suspected drug activity on February 23, 2007. (Dkt. No. 8-1 at 118, 122-123.) Witness William Reeves testified that the evening before the raid, February 22, 2007, he and three others drove to the trailer to buy cocaine from the Petitioner, knows to Reeves as "Big T". (Dkt. No. 8-2 at 9-12.)
The drug force commander (J. Woodward) for the Beaufort County Sheriff's Department conducted surveillance on the trailer for most of the day before the execution of the search warrant. (Dkt. No. 8-1 at 117-118, 122.) Woodward saw only one car arrive just prior to the SWAT team's arrival for execution of the warrant. He did not see any other car while he conducted surveillance for most of the day; he did not see the Petitioner arrive or leave. (Dkt. No. 8-1 at 122-128.)
As the SWAT team approached the back door to the trailer, they saw a suspect look out of a rear window at them. The team identified themselves as the sheriff's office (Dkt. No. 8-1 at 81-82.) When the SWAT team entered the trailer from the back, law enforcement in front of the trailer observed Petitioner exit the front door of the trailer, where he dropped a cellophane bag of marijuana. (Dkt. No. 8-1 at 92-93, 145-146.) The search of the trailer revealed drugs (in the bathroom, living room and bedrooms), drug paraphernalia, including plastic bags, a police radio scanner, razor blades (in the kitchen), a digital pocket scale (in the kitchen) and a shotgun (in the master bedroom.) (Dkt. No. 8-1 at 96-97, 147-150, 152-178.)
Having reviewed the factual background of the case, the undersigned now turns to the Petitioner's individual grounds for relief. For the reasons set forth herein, the undersigned recommends granting the Motion for Summary Judgment. (Dkt. No. 9.)
Cory Fleming, Esq. testified at the PCR hearing that he was retained to represent the Petitioner at trial. He filed the Notice of Appeal for the Petitioner and remained on the case until he received the trial transcript. (Dkt. No. 8-2 at 162.) Counsel testified that he had practiced law for nineteen (19) to twenty (20) years and practiced criminal law regularly. (Dkt. No. 8-2 at 202.)
Counsel testified that the case was a classic drug investigation involving the drug task force and complaints about drug activity at the trailer. He stated that the task force stopped the car (Reeves and Benjamin occupied) and, based on the information that they gathered from the occupants of that car, they obtained a search warrant for the trailer and found drugs. (Dkt. No. 8-2 at 162-163).
Counsel stated that because no drugs were found on the Petitioner (other than the bag of marijuana he threw down on his way out the door), his strategy at trial was to argue a mere presence defense: that the Petitioner was not linked to the drugs found in the trailer, but was only present during the raid. Counsel said that there were many people at the trailer and it was clear that the Petitioner did not live there. Counsel's defense hinged on the appearance of one witness (Reeves) who could identify the Petitioner as being the "person who was dealing the dope."
Counsel was aware that the probable cause for the search warrant was based on Reeves' claim that he bought drugs from the Petitioner the night before the raid.
Counsel also thought that the challenge to the search warrant was not "particularly strong" and that while the veracity of the State's witness had its problems, that based on the totality and ongoing nature of the investigation, he thought that the court would find probable cause. (Dkt. No. 8-2 at 218-219.) Counsel explained that he was of the strong opinion that Reeves would not show up to testify and he did not think the State was going to be able to link the Petitioner to the drugs in the trailer. He presented an equally possible scenario: that the Petitioner was simply buying some marijuana. (Dkt. No. 8-2 at 216.)
Counsel believed that the defense case was in very good shape until Reeves' testimony. (Dkt. No. 8-2 at 189.) Although he did not expect Reeves to appear, he had reviewed Reeves' statement and the search warrant affidavit and was able to cross-examine Reeves about inconsistencies. (Dkt. No. 8-1 at 40-41; Dkt. No. 8-2 at 176-179.)
Counsel testified that, although he did not file a written motion to determine the admissibility of the Petitioner's prior convictions, he did raise the issue with the court during a "housekeeping" break in the trial (Dkt. No. 8-1 at 44; Dkt. No. 8-2 at 199.) There was no definitive ruling on the admissibility of the prior convictions. Counsel believed it was premature, as the Petitioner had not decided whether to testify or not. Counsel testified that he told the Petitioner that he did not think his prior drug convictions would be admissible. Counsel does not believe the prior convictions were the reason the Petitioner decided not to testify. (Dkt. No. 8-2 at 199-202.) Counsel stated that he and the Petitioner discussed his right to testify and counsel would have requested a ruling on the prior convictions had the Petitioner decided to testify. (Dkt. No. 8-2 at 199-201.) Counsel testified that he advised the Petitioner of his right to testify and that the ultimate decision not to testify was the Petitioner's. (Dkt. No. 8-2 at 224-225.) "If the reason that [Petitioner] wasn't testifying was based on his prior record, then I would think [a hearing] would have been necessary." (Id.)
Counsel said that he discussed the decision not to call any defense witnesses with the Petitioner and that Petitioner agreed. (Dkt. No. 8-2 at 225-226.) Counsel had considered calling the co-defendants as witnesses, all of whom had attorneys, but after investigation, determined that their testimony would not be helpful or they did not want to testify. (Dkt. No. 8-2 at 206.) In counsel's judgment, he had good reasons not to put on a defense, although he had witnesses present: he been able to successfully challenge the evidence without defense witnesses; he did not want any defense witnesses with credibility problems who "might mess it up." (Dkt. No. 8-2 at 206-207); he was able to reserve the last argument; he thinks putting up a defense without the defendant testifying is a bad signal to the jury. (Dkt. No. 8-2 at 207-208, 216.)
Counsel testified that he moved for and received Brady and discovery materials and reviewed all evidence with his client. (Dkt. No. 8-2 at 212-214.) Counsel met with the Petitioner many times prior to trial: they discussed the elements of his charges, Petitioner's version of the facts, possible defenses and potential witnesses. (Id.) Counsel spoke to every witness who testified, even Reeves who was found by the State during the trial. (Id.) Witness Jenkins provided counsel with the rental receipt book right before Jenkins' testimony, despite having interviewed Jenkins before; but that in his judgment, that testimony was not "particularly damaging." (Dkt. No. 8-2 at 214, 219.)
Counsel testified that he did not think there was any basis to recuse the trial judge, even though he took guilty pleas from the co-defendants. (Dkt. No. 8-2 at 226.) Counsel made the motion to have the State not refer to the Petitioner as "Big T". He thought the State's use of the name in closing argument "problematic" but not "objectionable" because it was a fair statement by the prosecutor of the Petitioner's identity. (Dkt. No. 8-2 at 227.)
The Petitioner testified that he was "unhappy about" a juror, never identified, who indicated at voir dire that he knew witness Jenkins. The Petitioner testified that he did not have any evidence that this person was seated on the jury because the person was never identified. (Dkt. No. 8-2 at 236.)
Three other witnesses testified at the PCR hearing. Tyece Brown testified that she was the Petitioner's girlfriend at the time of the trial, and that they had lived together since late 2009, early 2010. (Dkt. No. 8-2 at 246.) (The arrest of the Petitioner for this incident was in 2007.) She was present and sequestered at the trial, but that she was not called as a witness. (Dkt. No. 8-2 at 247-248.) She could have testified that the Petitioner was living with her since 2009, 2010 and she had a copy of the lease that was in her and the Petitioner's names. (Id.)
Akeem Saunders, the Petitioner's brother and co-defendant, testified that he was present during the raid, was charged with drug offenses and pled guilty to the charges before the Petitioner's trial. (Dkt. No. 8-2 at 250-251.) Contrary to Reeves' testimony, Akeem Saunders testified that he was present when Reeves came to the trailer, but that his brother, the Petitioner, was not there. (Dkt. No. 8-2 at 251.) Akeem testified that he lived in the trailer at the time of the search, not his brother, and that he had been there for three (3) to four (4) months, and that the Petitioner was just visiting at the time of the search. (Dkt. No. 8-2 at 252.) Akeem testified that he does not know why he was not called to testify to these facts at the trial; he was in jail at the time; he wanted to testify and would even risk losing a favorable plea offer from the State by testifying on his brother's behalf. (Dkt. No. 8-2 at 252-253, 255.)
Andre Benjamin testified that he was the brother-in-law of witness Reeves. He admitted going to the trailer with his wife, Reeves and Reeves' girlfriend. He denied going to the trailer for drugs, but states he was going to talk to Akeem Saunders about some ladies they had been seeing. (Dkt. No. 8-2 at 258.) He testified that Reeves did not go in there with him, because, as his wife's brother, there was no way he would discuss other ladies in front of Reeves. He said that Reeves called him back to the car and asked him to buy some marijuana. Benjamin stated that he went in the trailer and saw Akeem Saunders and another man, but that he did not see the Petitioner. Benjamin had shown up at the trial to testify to these facts. (Dkt. No. 8-2 at 260.) On cross-examination, Benjamin admitted that he signed an affidavit in October of 2012 (which he gave to Petitioner's PCR counsel) stating that Reeves
The Respondent argues that Grounds Four, Five, Seven, Eight, Eleven, Twelve, Thirteen, Fourteen, Fifteen and Seventeen are procedurally defaulted and/or barred. These grounds all allege ineffective assistance of counsel for issues that were not raised in the PCR appeal. Generally, "federal habeas review of a state prisoner's claims that are procedurally defaulted under independent and adequate state procedural rules is barred unless the prisoner can show cause for the default and demonstrate actual prejudice as a result of the alleged violation of federal law, or prove that failure to consider the claims will result in a fundamental miscarriage of justice." Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008) (quoting McCarver v. Lee, 221 F.3d 583, 588 (4th Cir. 2000)).
As the Fourth Circuit stated in Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004),
Longworth, 377 F.3d at 448.
Procedural default may be excused if the Petitioner "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012). In the alternative for showing cause and prejudice, a petitioner may attempt to demonstrate a miscarriage of justice, e.g., actual innocence, Bousley v. United States, 523 U.S. 614, 623 (1998); see also Schlup v. Delo, 513 U.S. 298, 327 (1995), or abandonment by counsel. Maples v. Thomas, 132 S.Ct. 912, 924 (2012) (inquiring "whether [the petitioner] ha[d] shown that his attorneys of record abandoned him, thereby supplying the extraordinary circumstances beyond his control, necessary to lift the state procedural bar to his federal petition" (internal quotation marks and citations omitted)).
Here, the Petitioner raised only one claim on appeal of the PCR court's denial of his PCR application:
Did the PCR Court erroneously rule that defense counsel had a valid "strategy"
(Dkt. No. 8-7 at 3.) Because the Petitioner did not raise his other claims of ineffective assistance of counsel to the appellate courts, those claims are defaulted. See Longworth v. Ozmint, 377 F.3d 437, 447-48 (4th Cir. 2004) (concluding that certain grounds are "procedurally defaulted as a result of [the petitioner's] failure to raise them in his petition for certiorari to the South Carolina Supreme Court for review of the State PCR Court's decision"); see also Ward v. McLeod, No. 3:01-0012-25BC, 2002 WL 31996018, at *4 (D.S.C. Apr. 18, 2002) ("When the petition for habeas relief is filed in the federal court, a petitioner may present only those issues which were presented to the South Carolina Supreme Court through direct appeal or through an appeal from the denial of the PCR application, whether or not the Supreme Court actually reached the merits of the claim.").
In the Petitioner's reply, he cites a series of cases to contest the procedural default of these claims. In the Respondent's Reply, it adequately addressed why those cases were misapplied in this case. The Petitioner has not shown any extraordinary or compelling cause for the procedural default. As discussed below, the Petitioner cannot show any actual prejudice from any violation of any federal law. Even to the extent the Petitioner argues that his PCR appellate counsel was ineffective in failing to raise and preserve those grounds (Ground 9), such an allegation is insufficient to overcome the default. The Petitioner cannot show that the underlying issues are substantial or have merit, as discussed below. Martinez v. Ryan, 132 S.Ct. 1309, 1318 (2012). The undersigned finds Grounds Four, Five, Seven, Eight, Nine, Eleven, Twelve, Thirteen, Fourteen, Fifteen and Seventeen are procedurally defaulted and/or barred.
The Respondent also challenge Grounds Eighteen and Nineteen as not cognizable as they do not allege any violation of federal law. The Supreme Court has held that the habeas statute "unambiguously provides that a federal court may issue the writ to a state prisoner only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (internal quotations and citations omitted.) Grounds Eighteen and Nineteen generally allege that the PCR court failed to consider issues raised in the Petitioner's PCR application but do not allege any violation of federal law. South Carolina law governs findings of fact and conclusions of law. S.C. Code of Law § 17-27-80. Such claims are not cognizable on federal habeas review. 28 U.S.C. § 2254(d); see Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988) (holding claims of error in state PCR proceedings are not cognizable on federal habeas review.) The undersigned recommends granting summary judgment on Grounds Eighteen and Nineteen.
In the event that the district judge assigned to this case concludes that these grounds (Grounds Four, Five, Seven, Eight, Eleven, Twelve, Thirteen, Fourteen, Fifteen, Seventeen, Eighteen and Nineteen) for relief are not procedurally defaulted, the undersigned recommends granting summary judgment to the Respondent on the merits, as discussed below. To the extent the Petitioner seeks habeas relief on allegations of errors in the PCR court, he is not entitled to relief herein. See Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir.1988) (holding "claims of error occurring in a state post-conviction proceeding cannot serve as a basis for federal habeas corpus relief").
In Ground One, the Petitioner alleges the trial court erred in denying motion for directed verdict when he was "merely present and there was no evidence he possessed the drugs found inside the trailer." (Dkt. No.1 at 5.) The Respondent construes (and the undersigned agrees) the Petitioner's claim to argue that his due process rights were violated by the trial court's denial of his motion for a directed verdict. See Erickson v. Parous, 551 U.S. 89, 94 (2007) (federal district court is charged with liberally construing a pleading filed by a pro se litigant to allow the development of a potentially meritorious case). Petitioner must show, however, the court's decision is "contrary to . . . [clearly] established Federal law as determined by the Supreme Court of the United States," or "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 § 2254(d)(1)).
Allegations of insufficiency of evidence to convict made in a federal habeas corpus action are considered to be claims of denial of due process. See Pope v. Netherland, 113 F.3d 1364, 1368 (4th Cir.), cert. denied, 521 U.S. 1410 (1997) ("Any challenge to the sufficiency of the evidence to convict in a state prosecution is necessarily a due process challenge to the conviction") (internal citations omitted). Although this claim is cognizable in a habeas action in this court, the court's review in this area is `sharply limited.' Wilson v. Greene, 155 F.3d 396, 405 (4th Cir. 1998) (quoting Wright v. West, 505 U.S. 277, 296 (1992)). The Wilson court determined that 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 the 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. 155 F.3d at 405. 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. at 406 (quoting Jackson v. Virginia, 443 U.S. 307, 324, (1979)); Williams v. Warden, Lieber Corr. Inst., No. CV-5:15-02106-MGL-KDW, 2016 WL 1567333, at *12 (D.S.C. Mar. 10, 2016), report and recommendation adopted, No. CV-5:15-02106-MGL-KDW, 2016 WL 1557735 (D.S.C. Apr. 18, 2016), appeal dismissed, No. 16-6637, 2016 WL 4440387 (4th Cir. Aug. 13, 2016).
The Petitioner claims that there is no evidence that he possessed the drugs in the trailer. Possession of a controlled substance can be either actual or constructive. Actual possession occurs when the drugs are found to be in the physical possession of the defendant; constructive possession occurs when the defendant has dominion or control, or the right to exercise dominion and control, over either the drugs or the premises where the drugs are found. State v. Stanley, 365 S.C. 24, 42-43, 615 S.E.2d 455, 464 (Ct. App. 2005); State v. Ballenger, 322 S.C. 196, 199, 470 S.E.2d 851,854 (1996). In this case, the Court of Appeals affirmed Petitioner's conviction on this ground, citing relevant case law on constructive possession. (Dkt. No. 8-5 at 1-3.)
After reviewing all the evidence presented at trial, the undersigned finds that a rational trier of fact could have found Petitioner guilty beyond a reasonable doubt. The State presented evidence that, if believed, established that the Petitioner had control over the location where the drugs were found. The landlord, witness Jenkins, testified that he leased the trailer to the Petitioner and Petitioner had never given him notice. All receipts for rent payments were paid by the Petitioner or his girlfriend. The only times Jenkins went to the trailer were to meet the Petitioner there for repairs. (Dkt. No. 8-2 at 10-12, 27.) In addition, witness Reeves testified that he and his brother-in-law went to that trailer the night before the execution of the search warrant to buy drugs from the Petitioner. Reeves had known the Petitioner for years, and identified him at trial.
A rational jury could infer from this evidence that the Petitioner had dominion and control over the trailer, and therefore, the drugs found throughout the trailer. In ruling on Petitioner's motion for a directed verdict, the trial court said:
(Dkt. No. 8-2 at 30.)
(Dkt. No. 8-2 at 24-25.) A rational jury could infer from the facts of this case, that the Petitioner was in control of this trailer, even though he may not have lived in it. The Petitioner was the only official tenant, paid the rent for it and, if Reeves' testimony was believed, he sold drugs there the previous evening, Giving the required deference required to the state courts, and after review of the evidence, the undersigned finds that a rational trier of fact could have found the Petitioner guilty beyond a reasonable doubt. The undersigned recommends that Ground One of the Petition be dismissed.
In Ground Two, the Petitioner asserts that the trial court violated his Due Process rights by failing to get the name of a juror who knew witness Jenkins. Ground Six claims ineffective assistance of trial counsel for same. This issue arose during the trial court's general voir dire of the jurors, when the trial judge asked the jurors to stand if anyone recognized the name of potential witnesses for trial. (Dkt. No. 8-1 at 20.) The juror, who was not identified, stood and told the court he knew Robert Jenkins (the landlord). The trial court asked the juror how he knew the witness, and the juror responded, "He was my classmate." (Id.) The court then asked the juror if he could be fair and impartial, and the juror responded, "Yes." (Id.) The South Carolina Court of Appeals found this issue unpreserved because counsel did not object to the trial court's failure to inquire further about the juror's potential bias. (Dkt. No. 8-5 at 1-3.)
Trial courts have broad discretion in conducting voir dire in areas of inquiry that might tend to show jury bias. Mu'Min v. Virginia, 500 U.S. 415, 427 (1991). "Jury selection, we have repeatedly emphasized, is `particularly within the province of the trial judge.'" Skilling v. U.S., 561 U.S. 358, 386 (2000) (citations omitted). A trial court's findings of juror impartiality may be overturned only for manifest error." Id. at 428 (internal citations omitted). In this case, it is not clear even if this juror was seated on the jury; that is one of the problems caused by the lack of identification of the juror.
This witness' credibility was not really at issue in this trial, so that any juror bias would not affect the fairness of the trial. The Petitioner did not dispute that he originally rented the trailer and paid the rent. His position, that he paid the rent although he let his little brother live in the trailer, is not inconsistent with witness Jenkins' testimony. (Dkt. No. 8-1 at 134-137.) Jenkins testified that he did not know who lived in the trailer and would not be shocked if the Petitioner's brother were living there. Id.
Further, the trial court did inquire, and the juror said s/he could be fair and impartial. The juror knew witness Jenkins as a classmate, without specifying at what age. Jenkins testified he had been an agent with the SLED for twenty-eight years and nine years with the coroner's office. It is a reasonable assumption that the time when Jenkins and the juror were classmates was remote.
The undersigned finds that there is no manifest error in the trial court's handling of the voir dire. The trial court ensured that a juror who knew one of the witnesses could be fair and impartial in the trial of the case, satisfying the court's obligation to provide a fair trial to the Petitioner.
Ground Six asserts ineffective assistance of counsel for "failing to properly inquire into the facts of a juror who knew State's witness Jenkins. The Petitioner has not shown that the state court's rejection of this claim of ineffective assistance of counsel was contrary to, or an unreasonable application of, clearly established federal law; nor has the Petitioner shown the state court's adjudication resulted in an unreasonable determination of the facts. The PCR court held that no prejudice resulted from counsel's performance because the juror was adequately questioned by the trial court. (Dkt. No. 8-3 at 84.) The undersigned agrees. The trial court adequately inquired into the relationship between the witness and the juror and ensured that the juror could be fair and impartial.
The Petitioner asserts in Ground Three that the trial court abused its discretion by allowing the drug reports to go back to the jury when they were admitted into evidence outside the jury's presence. Ground Five asserts ineffective assistance of counsel for failing to object to same. (Dkt. 1 at 8; Dkt. No. 1-1 at 1; Dkt. No. 1-2 at 2.) The trial court allowed three drug reports to be admitted into evidence after closing arguments. The State had forgotten to move them into evidence during the testimony of the evidence technician and the forensic chemist. (Dkt. No. 8-2 at 218, 221-229.) The contents of the drug reports (identity and weight of controlled substances found during the search) appear to have been discussed in full during the testimony of the evidence technician and the forensic chemist, with full opportunity for cross-examination. (Id.)
The error was discovered after closing arguments, when the State and counsel were reviewing the evidence to go back to the jury. (Dkt. No. 8-2 at 86-87.) Counsel knew that the State had not moved the exhibits into evidence during testimony, but admitted that the reports were marked, presented to him, and to the witnesses. (Id.) Counsel did not object when the trial court allowed the evidence to be admitted; the trial court stated that this evidence is "not what it's going to ride or fall on. We don't dispute that it weighs what it weighs. . . . He didn't." (Dkt. No. 8-2 at 87.)
The PCR court held the following:
The same principles can be found in federal law. "A district court may allow the Government to re-open its case even after the defendant makes a Rule 29 motion." United States v. Floyd, 153 F. App'x 236, 237-238 (4th Cir. 2005) (citing United States v. Gray, 405 F.3d 227, 238 n. 5 (4th Cir. 2005)). The decision to allow the Government to re-open its case is within the district court's sole discretion. United States v. Abbas, 74 F.3d 506, 510 (4th Cir. 1996.) The Abbas court outlined the factors to consider in reviewing whether or not the judge abused his discretion in ruling on a party's motion to reopen its case: "(1) whether the party moving to re-open provided a reasonable explanation for failing to present the evidence in its case-in-chief; (2) whether the evidence was relevant, admissible, or helpful to the jury; and (3) whether reopening the case would have infused the evidence with distorted importance, prejudiced the opposing party's case, or precluded the opposing party from meeting the evidence." Id.
The trial court did not abuse its discretion in admitting the drug reports after the close of the evidence. Counsel was not ineffective for not objecting to the admission of this evidence. First, the State admitted that it had forgotten to formally move the reports into evidence during the testimony of the evidence technician and the forensic chemist. The contents of the reports were actually discussed, so there was no new evidence before the jury. The evidence of what drugs in what weight were found during the search, was obviously relevant, admissible and helpful to the jury. The Petitioner was not precluded from challenging the evidence in the form of testimony, and the drug reports were presented to counsel at the time of the testimony. At trial, the Petitioner did not dispute the identity and weight of the drugs found during the search; his defense was that he was merely present when the drugs were found. As the trial court recognized, and the PCR court agreed, the type and amount of the drugs were not the critical issues in the case.
The PCR court concluded that the Petitioner failed to establish prejudice; such a conclusion is a reasonable one. See Harrington v. Richter, 562 U.S. 86, 101 (2011) ("The pivotal question is whether the state court's application of the Strickland standard was unreasonable.") The Petitioner has not shown that the trial court's admission of the drug reports was an abuse of discretion. The Petitioner has not shown that the PCR court's rejection of the claim of ineffective assistance of counsel was contrary to, or an unreasonable application of, clearly established federal law; nor has the Petitioner shown that the PCR court's adjudication resulted in an unreasonable determination of the facts. The Respondent recommends that summary judgment be granted as to Grounds Three and Five.
All of these grounds relate to the testimony of witness Reeves who testified that he and his brother-in-law bought drugs from the Petitioner at the trailer the evening before the arrest. Counsel objected to the admission of this Rule 404(b), SCRE, testimony immediately before Reeves testified (Dkt. No. 8-2 at 1-4.) The PCR court found:
Dkt. No. 8-3 at 75-76.
Ground Four asserts that counsel did not even object to the "inadmissible hearsay and character evidence" of Reeves. The record does not support this contention. Counsel did in fact object to the admission of Reeves' testimony. (Dkt. No. 8-1 at 1-4.)
Grounds Eleven and Fourteen assert that counsel did not properly preserve the issue of the admissibility of Reeves' testimony. The PCR court also addressed the failure to preserve argument:
(Dkt. No. 8-3 at 77.)
These factual findings are reasonable. The record supports the PCR court's conclusion that counsel had preserved the issue of admissibility of Reeves' testimony for review. Therefore, the Petitioner has not shown counsel's performance to be ineffective or deficient.
Ground Fifteen asserts that counsel should have requested a limiting instruction for Reeves' testimony. The PCR court found:
Dkt. No. 8-3 at 77-78.
In State v. Johnson, the South Carolina Supreme Court held that evidence of another crime formed part of the res gestae and was directly related to the crime being tried. The court concluded that failing to give a limiting instruction was not reversible error because the other crime was directly related to the crime for which the defendant was on trial. In this case, the Respondent argues that the State sought to introduce Reeves' testimony to prove the identity of the man directing the drug operation, a crime directly related to the crimes charged to the Petitioner; therefore, a limiting instruction was not warranted. (Dkt. No. 8 at 41.) The Reeves' information also formed part of the probable cause for the search warrant. (Dkt. No. 8-3 at 121-123.) In rejecting counsel's objection to Reeves' testimony, the trial court noted, " If it's within twelve hours, it's part of the deal."
The undersigned agrees that counsel was not ineffective when he did not request a limiting instruction because Reeves' testimony was directly related to the crimes for which Petitioner was on trial. The undersigned recommends granting summary judgment on Grounds Four, Eleven, Fourteen and Fifteen.
The Petitioner asserts in Ground Seven that counsel was ineffective for "failing to object to the Court's testimony, as to the Applicant's conduct at the crime scene where such testimony was never verified by any witnesses nor the evidence to the time of Arrival of the Applicant at the crime scene." (Dkt. No. 1-1 at 1-2.) The Respondent originally construed this as alleging that trial counsel was ineffective for not calling witnesses to testify that the Petitioner was merely present at the scene. (Dkt. No. 8 at 43-44.) That allegation was subject to a ruling by the PCR court, (Dkt. No. 8-3 at 79-80.), but was not included in his federal Petition. The Petitioner clarified in his reply that the Respondent was mistaken: his allegation is that counsel failed to object to the trial court's "own testimony" about the duration of Petitioner's time at the trailer, which was in response to a jury question. (Dkt. No. 20 at 14-15.)
The jury did have one question during deliberations, which the trial court addressed. (Dkt. No. 8-2 at 88-90.) The question itself was not preserved in the record, but based on the response in the record, it obviously related to how long the law enforcement witness (witness Woodward) had been conducting surveillance on the trailer. (Id.) The trial court told the jury that he could not answer the question, but that they could have the testimony replayed to them and told them that they, the jury, were the fact finders. (Dkt. No. 8-2 at 89.) The trial court told the jury that the attorneys' recollection was that Woodward was "out there a long time. There's no exact period of time. He was out there most of the day." (Dkt. No. 8-2 at 88.) The foreperson stated: "So your answer to the Woodward testimony is he was there most of the day?" The trial court responded: " That's the attorneys, you know. . . . Defense counsel, the prosecutrix, is satisfied with most of the day. . . . Most of the day being until the SWAT team arrived, you know." (Dkt. No. 8-2 at 89-90.)
After the "answer" is given to the foreperson, counsel asks the trial court if they could "cue that up, regardless of whether they want to hear it, so we can confirm that just in case. . . ." The trial court responds that the court reporter can replay it for him and that "if it differs, we can write it on a piece of paper and send it back." (Dkt. No. 8-2 at 90.) The record is not clear whether counsel did confirm the answer.
This issue was raised in the Petitioner's initial PCR application, but was not pursued at the PCR hearing. The PCR court ruled that where the Applicant failed to present any evidence regarding such allegations, the PCR court found the Petitioner waived such allegations. (Dkt. No. 8-3 at 85.) Because the Petitioner abandoned this claim at the PCR hearing, it was not heard by the state court and is procedurally barred.
In the alternative, the Petitioner cannot prove deficient performance and actual prejudice. The attorneys' agreed upon answer to the question is consistent with the trial testimony of witness Woodward. The record reflects that Woodward answered the question "How long would you say you had been conducting surveillance that day, prior to the SWAT team's arrival?", was "Pretty much all day." (Dkt. No. 8-1 at 122.) The Petitioner has not proven any error of the trial court or counsel, and he has not met his burden under Strickland that he was denied ineffective assistance of counsel regarding his claim that trial counsel was ineffective for not objecting to the trial court's answer to the jury question. The undersigned recommends granting summary judgment on Ground Seven.
In Ground Eight, the Petitioner alleges that his counsel was ineffective for failing to object to the State's use of his nickname, "Big T", in closing argument, after the trial court ruled, and the State agreed, not to use the nickname. The Petitioner misconstrues the record at trial.
The Petitioner's counsel made a motion in limine to stop the State from referencing the Petitioner's street name without laying a proper foundation. (Dkt. No. 8-1 at 41-43.) The State agreed not to use the name "Big T" until a proper foundation was laid by witness testimony. (Id. at 42.) The trial court ruled that the State could not use the nickname until there was proper nonhearsay testimony. (Id.) The nickname was not mentioned until the testimony of witness Reeves. Reeves testified that he went with his brother-in-law to the trailer to buy drugs from "Big T" and identified the Petitioner as "Big T." (Dkt. No. 8-2 at 10-11.) The State did not use the name until after this foundational testimony.
Counsel testified at the PCR hearing about this issue and the PCR court found that the State laid the proper foundation for the use of the Petitioners's nickname through Reeves' testimony; that the State's use of the nickname in closing argument was a proper comment on the facts; and that no prejudice resulted from counsel's performance. (Dkt. No. 8-3 at 83. The PCR court's conclusions are reasonable. The proper foundation for the nickname was laid. The Petitioner's counsel cannot be ineffective for failing to object to a correct ruling which was followed by the State. The Petitioner also has not show any prejudice from the use of the nickname. The undersigned recommends granting summary judgment on Ground Eight.
In Ground Nine, the Petitioner states that counsel was ineffective for failing to know the law of the case by ensuring that all issues raised were preserved for appellate review. This allegation is conclusory, lacks specificity and fails to allege any constitutional violation or federal-law based error. Habeas relief is restricted to claims alleging an improper application of federal law. 28 U.S.C. 2254(d)(1); Wilson v. Corcoran, 562 U.S. 1, 16 (2010) ("[I]t is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts. The habeas statute unambiguously provides that a federal court may issue the writ to a state prisoner only on the ground that he is in custody in violation of the Constitution or laws of the United States.") Ground Nine is not a cognizable claim. The undersigned recommends granting summary judgment on Ground Nine.
Ground Ten asserts ineffective assistance of counsel for failing to properly argue, make a proper record of, and preserve the issue of probable cause for the search warrant. Grounds Sixteen and Twenty-One contain basically the same argument.
During the pre-trial motions, counsel raised with the trial court his "quandary": if he moved to suppress the search warrant, would he be precluded from arguing mere presence at trial. Counsel thought that if the State tried to show that Petitioner was in possession or control of the trailer, then he could move to challenge the warrant. Counsel thought he should be able to challenge the warrant without admitting for trial purposes that the Petitioner had possession or control of the trailer. The trial court told counsel in no uncertain terms, "you can't have it both ways." (Dkt. No. 8-1 at 37-38.) Based on the trial court's ruling, counsel decided that he would not "challenge, then, the validity of the search warrant, subject, of course, to the ruling that you made. . . . I am certainly not going to jeopardize my client's position concerning our contention that he was not in control." (Dkt. No. 8-1 at 39-40.) Throughout the trial, counsel pursued the strategy that the Petitioner was merely present, in the wrong place at the wrong time, except that he was stopping by the trailer to buy some marijuana.
At the PCR hearing, counsel stated his defense strategy was to show that the Petitioner "was not a part of any of the drug conspiracy that appeared to be going on" but instead was merely present because he was "there to buy weed from his brother." (Dkt. No. 8-2 at 165.) When asked about his decision not to challenge the search warrant, counsel testified, "I felt like I was making a decision where I may be jeopardizing my entire trial strategy by challenging this — at least that's how it seemed to me." (Dkt. No. 8-2 at 169.) In formulating this strategy, counsel stated that he researched the law on the reasonable expectation of privacy. Counsel again stated his rationale in not moving to suppress the search warrant: "I was afraid that I was getting ready to box myself in on what I thought was our absolute best defense under the circumstances, given the lack of physical evidence or other information." (Dkt. No. 8-2 at 174.) Counsel testified he did not want to negatively "affect the way the judge viewed the information," which might affect the judge's future rulings on a directed verdict. (Dkt. No. 8-2 at 176.)
The PCR Court understood counsel's quandary:
(Dkt. No. 8-3 at 29.) The PCR court further discussed counsel's strategy, stating: "I don't know that is was an inappropriate strategic decision to decide between whether, my client was merely present or whether he had some standing, in other words, some expectation of privacy in this residence to challenge this warrant." (Dkt. No. 8-3 at 57.) The PCR court next questioned whether any prejudice resulted from not challenging the search warrant by stating, "It's not whether you would have done it, it's whether you would have prevailed and whether it would have changed the outcome of these proceedings. And I'm just not certain that there would have been any appreciable difference." (Id.) In the PCR court's written order, the court denied post-conviction relief on this ground. The Order of Dismissal reads, in, in pertinent part:
(Dkt. No. 8-3 at 81.)
"[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable. . . ." Strickland, 466 U.S. at 690; see also Meyer v. Branker, 506 F.3d 358, 374 (4th Cir. 2007) ("Holding that such a reasoned determination constituted objectively unreasonable performance would be worse than folly: it would essentially require capital defense counsel to present evidence of remorse, even if, in their considered judgment, the evidence would affirmatively hurt their defendant's case. Strickland does not require any such outcome."). The record supports that counsel was pursuing what he thought was his strongest strategy, to establish that the Petitioner was merely present at the trailer. After the trial court's comments when counsel tried to move to challenge the search warrant, counsel's judgment, having reviewed the law and the facts, was to choose not to challenge the warrant so that he could pursue his strongest defense. The PCR court's conclusions that counsel's choice was a valid trial strategy and did not constitute deficient performance are reasonable applications of federal law, and are a reasonable determination of the facts.
The PCR court's ruling that there was no prejudice from the failure to challenge the search warrant is also a reasonable application of federal law and determination of the facts. Reeves' inconsistent statements were highlighted on cross-examination and were described by counsel in his colloquy with the trial court. One of the bases for the search warrant was that Reeves and his brother-in-law went to the trailer to buy drugs from the Petitioner. That one contention stayed consistent throughout the crossexamination of Reeves. The PCR court noted at the hearing that law enforcement did supplement Reeves' statement with their own investigation to provide "some rational basis and some veracity to who [they are] dealing with." (Dkt. No. 8-2 at 181.) The Petitioner has not met his burden to show that there is a reasonable probability that, but for the failure to challenge the warrant, the result of the trial would have been different. The undersigned recommends granting summary judgment on Grounds Ten, Sixteen and Twenty-One.
The Petitioner asserts in Ground Twelve that counsel was ineffective for failing to properly argue, make a proper record of, and preserve the issue of admissibility of the Petitioner's prior record for impeachment purposes. He asserts in Ground Thirteen that counsel failed to fully discuss the benefits and pitfalls of testifying because counsel did not get a definitive ruling on the admissibility of his prior record.
Counsel raised the admissibility of the Petitioner's prior record with the trial court before testimony began: "[M]y client may or may not choose to testify and at the appropriate time when the Court inquires of his rights, . . . there may be an issue as to whether or not his prior convictions [are admissible]. . . . But I'll reserve that motion at the appropriate time because we may not even address that." (Dkt. No. 8-1 at 44.) After the presentation of the State's case, the issue was raised again. The trial court asked the Petitioner and counsel if they had discussed the Petitioner's right to testify and whether the Petitioner was going to testify or not. (Dkt. No. 8-1 at 30.) Counsel responded that the Petitioner was not going to testify. The trial court told the Petitioner that he could change his mind at any time; the Petitioner answered that he was aware of that. (Id.)
Counsel testified about these interrelated issues at the PCR hearing. He stated that there was no definitive ruling on the admissibility of the prior convictions. Counsel believed it was premature, as the Petitioner had not decided whether to testify or not. Counsel testified that he told the Petitioner that he did not think his prior drug convictions would be admissible. Counsel does not believe the prior convictions were the reason the Petitioner decided not to testify. (Dkt. No. 8-2 at 199-202.) Counsel stated that he and the Petitioner discussed his right to testify and counsel would have requested a ruling on the prior convictions had the Petitioner decided to testify. (Dkt. No. 8-2 at 199-201.) Counsel testified that he advised the Petitioner of his right to testify and that the ultimate decision not to testify was the Petitioner's. (Dkt. No. 8-2 at 224-225.) "If the reason that [Petitioner] wasn't testifying was based on his prior record, then I would think [a hearing] would have been necessary." (Id.)
The PCR court denied relief on these grounds:
(Dkt. No. 8-3 at 78-79.)
The undersigned agrees with the State: the Petitioner is not entitled to relief on these grounds because the PCR court reasonably applied federal law. The PCR court's ruling was based in large part on the court's determination of the credibility of counsel; the credibility of counsel is entitled to deference. Cagle v. Branker, 520 F.3d 320, 324 (4
The PCR court also reasonably applied the facts. The record, discussed above, provides a clear and reasonable basis for the conclusion that the Petitioner knowingly waived his constitutional right to testify. The undersigned recommends granting summary judgment on Grounds Twelve and Thirteen.
The Petitioner alleges in Ground Seventeen that his counsel was ineffective for failing to request the recusal of the trial judge, Ernest Kinard. This issue was explored at the PCR hearing. Counsel was asked if he thought it was a problem that "Judge Kinard may know something about the cases by taking codefendants' pleas and then trying [the Petitioner's] case? Did that seem to be an issue that he had already formulated an opinion or knew something about it he shouldn't have known?" Counsel responded that he did not think that was an issue at all. (Dkt. No. 8-2 at 208-209. 226-227.)
The PCR court cited State v. Jackson, 353 S.C. 625, 627, 578 S.E.2d 744, 745 (Ct. App. 2003), for the following:
(Dkt. No. 8-3 at 82-83.)
The Supreme Court has stated that the fundamental tenet of its constitutional recusal cases is that there is a heavy "presumption of honesty and integrity in those serving as adjudicators." Withrow v. Larkin, 421 U.S. 35, 47 (1975). "The nature of the criminal justice system often requires judges to consider evidence and then dismiss it from their minds." Esparza v. Mitchell, 310 F.3d 414, 424-425 (6
Additionally, even if we speculate and presume the trial judge did remember evidence about the case from the pleas of co-defendants, this would not be an extra-judicial source; it would be knowledge the trial court learned through his participation in the case as a judge. Counsel cannot be ineffective for failing to bring a meritless motion. The undersigned recommends granting summary judgment on Ground Seventeen.
The Petitioner asserts in Ground Eighteen that the PCR court failed to address all issues raised by the Petitioner in his original PCR application. Ground Nineteen is that the PCR court erred in failing to address the cumulative effect of the above errors committed by trial counsel. Ground Twenty is that the PCR court erred in finding that counsel's performance was not deficient and that counsel's performance did not result in unfair prejudice to the Petitioner.
These grounds lack specificity and are conclusory in nature. The undersigned agrees with the PCR court that counsel's performance was not ineffective and did not result in any prejudice to the Petitioner, therefore, there are no errors to consider cumulatively. The undersigned recommends granting summary judgment on Grounds Eighteen, Nineteen and Twenty.
For the foregoing reasons, it is RECOMMENDED that Respondent's Motion for Summary Judgment (Dkt. No. 9) be GRANTED; and the Petitioner's habeas petition be DISMISSED WITH PREJUDICE. It is further RECOMMENDED that a certificate of appealability be denied.
IT IS SO RECOMMENDED.
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge.
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:
28 U.S.C. § 2253. A prisoner satisfies this standard by demonstrating that reasonable jurists would find this court's assessment of his constitutional claims debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In the case sub judice, the legal standard for a certificate of appealability has not been met. The undersigned therefore recommends that a certificate of appealability be denied.
