KAYMANI D. WEST, Magistrate Judge.
Petitioner Richard Deas ("Petitioner") is a state prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 25, 26. On November 3, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 27. On January 20, 2016, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment. ECF No. 36. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 25,
Petitioner is currently incarcerated in the Lee Correctional Institution ("LCI") of South Carolina Department of Corrections ("SCDC"). ECF No. 1 at 1. In 2003, Petitioner was indicted at the April term of the Charleston County Grand Jury for murder (2008-GS-10-3339) and possession of a firearm during the commission of a crime of violence (2008-GS-10-3340). App. 883-88.
Chief Appellate Defender Robert M. Dudek represented Petitioner on appeal and briefed the following issue:
App. 730-745. Assistant Attorney General J. Anthony Mabry filed a Response Brief on behalf of the State. 746-81. On November 21, 2012, the South Carolina Court of Appeals affirmed Petitioner's convictions and sentences in an unpublished opinion. App. 782-84. On December 7, 2012, the South Carolina Court of Appeals issued a Remittitur. App. 785.
Petitioner filed an application for Post-Conviction Relief ("PCR") on April 22, 2013 (2013-CP-10-2306). App. 786-92. Petitioner asserted the following allegations, recited verbatim, regarding his claims:
App. 788. Petitioner asserted the following facts in support of his claims:
Id. A Return was filed on behalf of the State on December 5, 2013. App. 793-97. A PCR hearing convened on April 17, 2014, before the Honorable R. Markley Dennis. App. 799-866. Petitioner was present and represented by Attorney Rodney Davis; Assistant Attorney General Ashleigh R. Wilson appeared on behalf of the State. Id. Petitioner and trial counsel testified as witnesses during Petitioner's PCR hearing. Id. In an Order filed July 16, 2014, the PCR court denied Petitioner's PCR Application in full, making the following findings of fact and conclusions of law:
App. 868-882. Appellate Defender Susan B. Hackett filed a Johnson
ECF No. 26-4. The South Carolina Supreme Court denied the petition, and issued the Remittitur on June 5, 2015. ECF Nos. 26-5, 26-6. This federal habeas Petition followed and was filed on June 10, 2015. ECF No. 1.
Petitioner raises the following issues in his federal Petition for a Writ of Habeas Corpus, quoted verbatim:
The court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;" or "showing . . . that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
Because Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 397-98 (2000). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 410.
Courts afford deference to state courts' resolutions of the habeas claims of state prisoners. See Bell v. Cone, 543 U.S. 447, 455 (2005). The Supreme Court has provided further guidance regarding the deference due to state-court decisions. Harrington v. Richter, 562 U.S. 86 (2011); Cullen v. Pinholster, 131 S.Ct. 1388 (2011). To obtain habeas relief from a federal court, "a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, 562 U.S. at 103. "[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 102. The Court further stated: "If this standard is difficult to meet, that is because it was meant to be." Id.; see Richardson v. Branker, 668 F.3d 128, 137-44 (4th Cir. 2012) (quoting Harrington extensively and reversing district court's grant of writ based on his ineffective assistance of counsel claims).
In interpreting § 2254(d)(1) and discussing the federal courts' role in reviewing legal determinations made by state courts, the United States Supreme Court held as follows:
Williams v. Taylor, 529 U.S. 362, 404-05 (2000) (quoting from § 2254(d)(1)). "Clearly established Federal law in § 2254(d)(1) refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams, 529 U.S. at 412). In considering whether a state-court decision is "contrary to" clearly established federal law, the federal court may not grant relief unless the state court arrived at a conclusion opposite to that reached by the Supreme Court on a legal question, the state court decided the case differently than the Court has on facts that are materially indistinguishable, or if the state court "identifie[d] the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applie[d] that principle to the facts of the prisoner's case." Williams, 529 U.S. at 405-13. The "unreasonable application" portion of § 2254(d)(1) "requires the state court decision to be more than incorrect or erroneous[,]" it "must be objectively unreasonable," which is a higher threshold. Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citation omitted).
Section 2254(e)(1) requires the federal court give a presumption of correctness to statecourt factual determinations and provides that a petitioner can only rebut such a presumption by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Accordingly, a habeas petitioner is entitled to relief under § 2254(d)(2), only if he can prove, by clear and convincing evidence, that the state court unreasonably determined the facts in light of the evidence presented in state court.
The Sixth Amendment provides a criminal defendant the right to effective assistance of counsel in a criminal trial and first appeal of right. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court announced a two-part test for adjudicating ineffective assistance of counsel claims. First, a petitioner must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 687. Second, the petitioner must show that this deficiency prejudiced the defense. Id. at 694. The United States Supreme Court's 2011 decisions cited previously elaborate on the interplay between Strickland and § 2254, noting the standards are "both highly deferential," and "when the two apply in tandem, review is doubly so." Harrington, 562 U.S. at 105 (internal quotation marks omitted); Pinholster, 131 S. Ct. at 1403.
Further, in Pinholster, the Court held for the first time that the federal court's habeas review under § 2254(d)(1) is limited to the record before the state court that adjudicated the claim on the merits. 131 S. Ct. at 1398. The Court explained that "review under § 2254(d)(1) focuses on what a state court knew and did." Id. at 1399. In the Pinholster case, the district court had conducted an evidentiary hearing and considered new evidence in connection with its review and granting of the petitioner's writ based on a finding of ineffective assistance of counsel. Id. at 1397. In an en banc decision, the Ninth Circuit Court of Appeals affirmed the district court's grant of the writ. Id. The United States Supreme Court granted certiorari and reversed the Ninth Circuit, finding that the district court should not have considered additional evidence that had not been available to the state courts. 131 S. Ct. at 1398. Because the federal habeas scheme "leaves primary responsibility with the state courts," and "requires that prisoners ordinarily must exhaust state remedies," the Court held that to permit new evidence to be presented in a federal habeas court "would be contrary to that purpose." 131 S. Ct. at 1399 (internal citation and quotation marks omitted).
When a petitioner raises in a § 2254 habeas petition an ineffective-assistance-of-counsel claim that was denied on the merits by a state court, "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable[,]" not "whether defense counsel's performance fell below Strickland's standard." Harrington, 562 U.S. at 101. "For purposes of § 2254(d)(1), `an unreasonable application of federal law is different from an incorrect application of federal law.'" Id. (citing Williams, 529 U.S. at 410) (emphasis in original). "A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself." Id.
Federal law establishes this court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person "is in custody in violation of the Constitution or laws or treaties of the United States[,]" and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. 28 U.S.C. § 2254(a)-(b). The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require that a habeas petitioner first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). "To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court." Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) overruled on other grounds by U.S. v. Barnette, 644 F.3d 192 (4th Cir. 2011). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal; or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203, SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). If the PCR court fails to address a claim as is required by section 17-27-80 of the South Carolina Code, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will result in the application of a procedural bar by the South Carolina Supreme Court. Marlar v. State, 653 S.E.2d 266, 267 (S.C. 2007). Strict time deadlines govern direct appeals and the filing of a PCR in the South Carolina courts. A PCR must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.
Furthermore, in filing a petition for habeas relief in the federal court, a petitioner may present only those issues that were presented to the South Carolina Supreme Court or the South Carolina Court of Appeals. See State v. McKennedy, 559 S.E.2d 850, 853 (S.C. 2002) (holding "that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error") (quoting In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454, 454 (S.C. 1990)).
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the United States Supreme Court explains:
Reed v. Ross, 468 U.S. 1, 10-11 (1984).
However, if a federal habeas petitioner can show both (1) "`cause' for noncompliance with the state rule[,]" and (2) "`actual prejudice resulting from the alleged constitutional violation[,]'" the federal court may consider the claim. Smith v. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986).
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met and the rules of procedural bar apply. See Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996)).
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the South Carolina Supreme Court in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or that a "fundamental miscarriage of justice" has occurred. Murray v. Carrier, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor that hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Id. Absent a showing of cause, the court is not required to consider actual prejudice. Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray v. Carrier, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
As an initial matter, Respondent maintains Ground One is procedurally barred from habeas review. ECF No. 26 at 28-30. Additionally, Respondent contends all issues or most issues raised in Ground Three are procedurally barred from habeas review. Id. at 31-37. The undersigned will address each procedural bar argument in turn.
Respondent argues that Ground One is procedurally barred because Petitioner did not raise a federal constitutional challenge to the admission of this evidence in state court. Id. at 28. Specifically, Respondent maintains that during trial, Petitioner never raised this particular federal constitutional challenge in state court but "challenged the admission of the evidence in state court on the grounds of relevance and its prejudicial effect outweighed its probative value under S.C.R.E., Rule 403." Id. at 29 (emphasis in Return). Additionally, Respondent maintains that Ground One is not cognizable on habeas review because it is a matter of state law. Id. at 29-30. Finally, Respondent asserts that "Petitioner is also barred from an evidentiary hearing on this ground because he failed to establish an evidentiary basis for this claim in state court proceedings." Id. at 30. Petitioner does not appear to address the procedural bar argument on the merits in his Response Brief. ECF No. 36.
As indicated in the background section of this Report, on appeal, Petitioner argued that the trial court erred in admitting the taped conversation based on relevance and argued it was "unduly prejudicial pursuant to Rule 403, SCRE. . . ." App. 733. Further, Petitioner's appellate brief does not mention that any of his constitutional rights were violated but focuses on whether the evidence at issue was relevant or unduly prejudicial. App. 734-743.
In the case of Anderson v. Harless, 459 U.S. 4, 6 (1982), the Supreme Court held that a habeas claim was barred because it was plain from the record that a constitutional argument was never presented to, or considered by, the state court. The Court held that 28 U.S.C. § 2254 "requires a federal habeas petitioner to provide the state courts with a `fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim." Id. (internal citation omitted). Further, the petitioner must have "`fairly presented' to the state courts the `substance' of his federal habeas corpus claim." Id. The Fourth Circuit Court of Appeals cited to the Anderson case in considering whether an issue was procedurally barred in Pethtel v. Ballard, 617 F.3d 299, 306 (4th Cir. 2010). There, the Fourth Circuit held as follows:
Id. Therefore, this issue is procedurally barred because Petitioner did not raise any federal constitutional issue at the trial court or state court appellate level. See e.g., Lopez v. Cartledge, No. 4:13-2872-BHH, 2015 WL 5554562, at *17 (D.S.C. Sept. 21, 2015), appeal dismissed, No. 15-7653, 2016 WL 1259696 (4th Cir. Mar. 31, 2016); Johnson v. Mauney, No. 1:11-1753-RMG-SVH, 2012 WL 2149763, at *7 (D.S.C. May 18, 2012), report and recommendation adopted, No. 1:11-1753-RMG, 2012 WL 2154177 (D.S.C. June 13, 2012); Walker v. Warden of Broad River Corr. Inst., No. 1:09-2672, 2010 WL 3701331, at *8 (D.S.C. Sept. 14, 2010).
Concerning Ground One, Petitioner may, nonetheless, overcome procedural defaults and have his claims addressed on the merits, by showing either cause and prejudice for the default, or that a miscarriage of justice would result from the lack of such review. See Coleman, 501 U.S. at 750; Savino v. Murray, 82 F.3d 593, 602-03 (4th Cir. 1996). The existence of cause ordinarily turns upon a showing of: 1) a denial of effective assistance of counsel, 2) a factor external to the defense which impeded compliance with the state procedural rule, or 3) the novelty of the claim. Murray, 477 U.S. at 488. Having reviewed the record, evidence, and the parties' legal memoranda, the undersigned finds that Petitioner has not shown sufficient cause and prejudice to excuse the default of Ground One. Thus, Ground One is procedurally barred from consideration by this court and should be dismissed. Mazzell v. Evatt, 88 F.3d 263, 269 (4th Cir. 1996) (finding in order to show prejudice a Petitioner must show that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different); Rodriguez v. Young, 906 F.2d 1153, 1159 (7th Cir. 1990) ("Neither cause without prejudice nor prejudice without cause gets a defaulted claim into federal court.").
In order to demonstrate a miscarriage of justice, Petitioner must show he is actually innocent. Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 623 (1998). Petitioner cannot establish that the errors he complains of probably resulted in the conviction of an innocent person. Schlup v. Delo, 513 U.S. 298, 327 (1995). In order to pass through the actual-innocence gateway, a petitioner's case must be "truly extraordinary." Id. (internal citation omitted). The court's review of the record does not support a showing of any cause and prejudice or actual innocence to excuse the default. Thus, Ground One is procedurally barred from consideration by this court and should be dismissed. The undersigned therefore recommends that the Respondent's Motion for Summary Judgment be granted as to Ground One.
Respondent maintains that Ground Three is procedurally barred because it is vague and ambiguous, and "[i]t is difficult, if not impossible, for Respondent to tell what improper character evidence Petitioner is referring to in the first sentence of his `Supporting Facts' as he does not indicate what improper character evidence he is referring to." ECF No. 26 at 31. Further, Respondent represents that Petitioner alleges the improper character evidence was both objected to and not objected to. Id. Further, Respondent argues "[t]he PCR court did not address any issue of ineffective assistance of counsel for failure to object properly or not objecting at all to improper character evidence." Id. Therefore, it is Respondent's position that the ineffective assistance of counsel argument concerning improper character evidence is procedurally barred. Id. at 32. Additionally, Respondent argues that Petitioner's argument concerning the evidence raising only a suspicion of guilt "was waived and abandoned on direct appeal" is procedurally barred. Id. at 32-33. Further, Respondent argues that Petitioner's ineffective assistance of counsel grounds concerning failure to object to a witness statement or failure to object to his own statement are procedurally barred because the PCR court did not address these grounds. Id. at 35-36. Petitioner does not respond to Respondent's procedural bar arguments. See ECF No. 36.
The undersigned has reviewed the PCR court proceedings and the PCR court's order of dismissal. Based on this review, the undersigned finds no issues in Ground Three were ruled upon by the PCR court. Furthermore, no Ground Three issues were raised in Petitioner's appeal from his PCR dismissal. See ECF Nos. 26-3; 26-4. Therefore, Ground Three is procedurally barred from habeas review. See, e.g. Coleman v. Thompson, 501 U.S. at 728-29 (issue not properly raised to the state's highest court, and procedurally impossible to raise there now, is procedurally barred from review in federal habeas); Williams v. Warden, No. 4:08-2312-SB, 2009 WL 3052487, at *13 (D.S.C. Sept. 23, 2009) (finding that because petitioner "did not properly present this claim to the state's highest court in a procedurally viable manner when he had the opportunity, and the state courts would find any attempt to raise the claim now to be procedurally improper, then the claim is procedurally barred from review in federal habeas corpus").
Further, Petitioner has not shown either cause and prejudice for the default, or that a miscarriage of justice would result from the lack of such review. See Coleman, 501 U.S. at 750; Savino v. Murray, 82 F.3d at 602-03. Thus, Ground Three is procedurally barred from consideration by this court and should be dismissed. Mazzell v. Evatt, 88 F.3d at 269; Rodriguez v. Young, 906 F.2d at 1159. Therefore, the undersigned therefore recommends that the Respondent's Motion for Summary Judgment be granted as to Ground Three.
In Ground Two, Petitioner alleges the trial court erred in failing to excuse a juror who was related to the victim and a witness. ECF No. 1 at 7. Petitioner maintains that after three days of trial a juror informed the court that he had a relationship with the victim and with a witness and "the trial court did not question other jurors to make this determination." Id. Respondent maintains that Ground Two is meritless because the PCR court determined this Ground lacked merit and that finding is entitled to double deference. ECF No. 26 at 70. Further, Respondent argues the PCR court's finding is supported by the record. Id.
During Petitioner's criminal trial, Judge Jefferson received a note from a juror that said only "close kin Leroy Miles, Shoreka Miles." App. 284-87. Upon questioning, the juror stated: "[t]he victim and Leroy and Shoreka are real close family. I don't think I can be partial (sic)." App. 288. Based on the juror's representations, the court dismissed him as a juror and replaced him with an alternate. App. 289-90. After the juror was dismissed, Petitioner's trial counsel wanted to find out whether the juror indicated anything concerning the juror's relationships with any other jurors other than the foreperson. App. 290. Upon questioning, the foreperson told the court that the excused juror had just relayed the information in the note to the foreperson and no one else. App. 291. Further, the foreperson stated that he could remain fair and impartial for Petitioner's trial. App. 292. The State and defense found the trial court's remedy of dismissing only the juror who had written the note acceptable. App. 293. Thereafter, the trial proceeded. App. 293-94.
During Petitioner's PCR hearing, Petitioner testified that he was not satisfied with how trial counsel handled the situation of the excused juror. App. 813. Specifically, Petitioner testified that he thought trial counsel "should have called the jurors up one by one and questioned them. Like, `did y'all talk about the case', things like that." Id. When trial counsel was questioned about the excused juror, she recalled:
App. 838. Additionally, trial counsel testified that in her opinion, there was no basis for a mistrial after the judge excused the juror and failed to question the jurors individually. App. 839. Further, trial counsel testified that "it didn't occur to me to ask for a mistrial because at that point I didn't see specifically anything that had been tainted, that I had proof of." App. 839-40.
The Sixth Amendment to the United States Constitution guarantees a defendant the right to effective assistance of counsel in a criminal prosecution. McMann v. Richardson, 397 U.S. 759, 771 (1970). In Strickland v. Washington the Supreme Court held that to establish ineffective assistance of counsel, a petitioner must show deficient performance and resulting prejudice. 466 U.S. at 687. Counsel renders ineffective assistance when his performance "[falls] below an objective standard of reasonableness," but there is a "strong presumption" that counsel's performance was professionally reasonable. Id. at 688-89. Prejudice requires a showing "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
Based on the undersigned's review of the trial transcript and PCR transcript, the undersigned finds the PCR court's decision on this ineffective-assistance-of-counsel issue was reasonable. In its Order of Dismissal, the PCR court found there was no basis for trial counsel to move for a mistrial because the juror was excused. App. 878. Additionally, the PCR court noted the trial court questioned the foreperson of the jury to ensure he could remain fair and impartial. App. 879. Based on these findings, the PCR court determined that Petitioner "failed to carry his burden of proving counsel's performance was deficient or affected the outcome of his proceeding." Id.
The undersigned agrees with the PCR court's finding that trial counsel did not err in failing move for a mistrial after the biased juror was excused from the jury and the foreperson was questioned about his impartiality. Furthermore, the undersigned has reviewed the trial transcript and agrees with the PCR court's finding that any perceived error likely had no impact on the outcome of Petitioner's criminal trial. Therefore, the undersigned finds Petitioner has failed to demonstrate either Strickland prong, and the PCR court's dismissal of Petitioner's claim of ineffective assistance of counsel was not an unreasonable application of federal law. Accordingly, the undersigned finds that Petitioner has failed to demonstrate that the state court's decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d) & (e)(1). As a result, the undersigned finds that Ground Two is without merit and should be dismissed.
Wherefore, based upon the foregoing, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 25, be GRANTED and the Petition 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. 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:
