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 upon Respondent's Motion for Summary Judgment (Dkt. No. 36) as well as two motions filed by Petitioner: Petitioner's "Dispositive Motion" (Dkt. No. 34) and Petitioner's Motion for Summary Judgment (Dkt. No. 39).
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 filed the instant action on or about April 3, 2015. (Dkt. No. 1.) On July 9, 2015, Respondent filed a Motion for Summary Judgment. (Dkt. No. 13; see also Dkt. No. 12.) On February 1, 2016, the undersigned issued a Report and Recommendation, recommending granting Respondent's Motion for Summary Judgment (Dkt. No. 13) and concluding that the instant § 2254 petition was untimely. (Dkt. No. 24.) Petitioner objected, and on March 17, 2016, the Honorable Sol Blatt Jr. issued an Order declining to adopt that Report and Recommendation. (Dkt. No. 29.) Judge Blatt concluded that Petitioner was entitled to equitable tolling; he therefore remanded the matter to the undersigned for further consideration. (Dkt. No. 29.) In accordance with Judge Blatt's ruling, the undersigned issued the following Text Order on March 17, 2016:
(Dkt. No. 32.)
On or about March 22, 2016, Petitioner filed a motion entitled "Dispositive Motion." (Dkt. No. 34.) On April 6, 2016, Respondent filed a Renewed Motion for Summary Judgment. (Dkt. No. 36.) By order filed April 6, 2016, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Petitioner was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion. (Dkt. No. 37.) On or about April 11, 2016, Petitioner filed a Motion for Summary Judgment and a Response in Opposition to Respondent's Motion for Summary Judgment. (See Dkt. No. 39.)
The Petitioner is currently confined within the South Carolina Department of Corrections ("SCDC") at McCormick Correctional Institution. In May of 2001, the Charleston County Grand Jury indicted Petitioner for murder and possession of a firearm during the commission of a violent crime. (Dkt. No. 12-22.) Petitioner was represented by Ashley Pennington, Esquire, and S. Boyd Young, Esquire. (See R. at 1.) Petitioner proceeded to a jury trial before the Honorable Edward B. Cottingham on November 13-15 of 2001. (R. at 1-584.) On November 15, 2011, the jury convicted Petitioner as charged. (R. at 557-58.)
Petitioner appealed and was represented by Robert M. Dudek, Esquire, of the South Carolina Office of Appellate Defense. (See R. at 617-36.) On April 28, 2003, Petitioner filed a Final Brief of Appellant, wherein he raised the following issues:
(R. at 621.)
In a published opinion filed on August 9, 2004, a panel majority of the South Carolina Court of Appeals reversed Petitioner's conviction for murder, concluding that the trial court "erred in failing to charge the jury on self-defense." State v. Slater (Slater I), 360 S.C. 487, 488, 602 S.E.2d 90, 91 (Ct. App. 2004).
(See R. at 637-57.)
In a published opinion filed on April 9, 2007, the Supreme Court of South Carolina reversed the decision of the Court of Appeals, concluding that the "trial court correctly found that Slater was not entitled to a self-defense charge and the court of appeals erred in reversing Slater's conviction on this ground." State v. Slater (Slater II), 373 S.C. 66, 71, 644 S.E.2d 50, 53 (2007). The matter was remitted to the lower court on April 25, 2007. (Dkt. No. 12-11.)
On May 23, 2007, Petitioner filed an application for post-conviction relief ("PCR"). (R. at 744-57.) Therein, he alleged that he was being held in custody unlawfully due to the ineffective assistance of counsel. (R. at 747.) Specifically, Petitioner alleged counsel was ineffective in the following particulars (verbatim):
(R. at 748-48.)
On November 16, 2009, an evidentiary hearing was held before the Honorable Deadra L. Jefferson. (R. at 764-811.) Petitioner was present and represented by William Runyon, Esquire. (See R. at 764.) In an order dated December 17, 2009, Judge Jefferson denied the application for post-conviction relief and dismissed the petition. (R. at 814-22.) On March 25, 2011, Mr. Runyon served a Notice of Intention to Appeal, but the appeal was dismissed as untimely. (See Dkt. No. 12-12.)
On May 10, 2011, Petitioner filed a second application for PCR. (R. at 823-30.) Therein, he sought a belated appeal, and contended PCR counsel was ineffective, for the following reasons (verbatim):
(R. at 823-30.) Petitioner, through Attorney Charles T. Brooks, III, filed a Motion to Amend his application on September 30, 2011. (R. at 831-32.) Therein, Petitioner sought to amend his application to raise the following issues (verbatim):
(R. at 831-32.)
On July 24, 2012, the Honorable Stephanie P. McDonald held a hearing on Petitioner's second application for PCR. (R. at 839-50.) In a Consent Order filed on August 21, 2012, Judge McDonald granted Petitioner a belated appeal of the denial of his first PCR application pursuant to Austin v. State;
On August 5, 2013, Petitioner, thorough Attorney David Alexander of the South Carolina Commission on Indigent Defense, filed a Petition for Writ of Certiorari Pursuant to Austin v. State. (Dkt. No. 12-17.) Therein, Petitioner raised the following issue:
(Dkt. No. 12-17 at 3 of 13.)
On August 21, 2014, the South Carolina Supreme Court filed an Order in which it (1) granted the petition for a writ of certiorari from Judge McDonald's order, (2) dispensed with further briefing, (3) performed an Austin review of Judge Jefferson's Order of Dismissal and, (4) after that review, denied certiorari from Judge Jefferson's Order. (Dkt. No. 12-20.) The matter was remitted to the lower court on September 8, 2014. (Dkt. No. 12-21.)
Petitioner then filed the instant habeas petition, wherein he raised the following grounds for review (verbatim):
(Dkt. No. 1 at 6-9 of 15.)
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).
Since 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)).
As noted above, several motions are pending in the case sub judice: Respondent's Motion for Summary Judgment (Dkt. No. 36),
On the evening of February 3, 2001, twenty year old Sharone Middleton, the victim, drove his cousins, Demetrius and Mark Nelson, to a step show at North Charleston High School. (R. at 121-23.) Demetrius testified that Mark went into the show while the victim and Demetrius drove around Rivers Avenue. (R. at 122-24.) Demetrius further testified that he and the victim then parked in a church parking lot across from the school, waiting for Mark. (R. at 124-25.) According to Demetrius, around 10:00PM, Mark saw them and began walking towards the car. (R. at 125-26.) Demetrius testified as follows:
(R. at 126-27.)
Demetrius testified that he did not recognize any of the individuals who tried to rob them. (R. at 127.) According to Demetrius, some of the individuals were able to get Sharone out of the vehicle; three or four of them were "boxing and kicking him" while he was on the ground, while Sharone was "balling up," trying to "cover[] up . . . his body." (R. at 128-29.) When asked what happened while Sharone "was on the ground trying to protect himself," Demetrius stated, "Well, when I looked over, I saw like somebody shot him or whatever." (R. at 129.) He testified that he initially heard two shots, and then the "guys . . . ran off." (R. at 129-30.) He stated, "[A]s they were running off, they were still shooting at the car or whatever and they jumped off in some car." (R. at 130.) He indicated that six or seven shots were fired as the individuals were running off. (R. at 130.) The vehicle in which they were riding was struck, but neither Demetrius nor his brother were struck. (R. at 130.) Demetrius testified that neither he nor Sharone had a gun that evening; he testified that he did not own a gun and that, to his knowledge, neither did Sharone. (R. at 132-33.)
Terell Bryant testified that on February 3, 2011, he had been at the North Charleston High School dance step show. (R. at 175.) He said that he saw Petitioner there and saw him in the bus parking lot after the show. (R. at 175-76.) Bryant testified that when he walked out, "there was some commotion inside the bus parking lot," and he saw Petitioner "walking towards [him] with a gun in his hand." (R. at 176.) According to Bryant, Petitioner was "walking with [the gun] freely." (R. at 176.) Bryant indicated that after he saw Petitioner, Petitioner got into a white "[t]wo-door long car with red streaks on it." (R. at 176.) Bryant testified that he saw the vehicle Petitioner got into head over to the church parking lot. (R. at 176-77.) Bryant testified that even though he did not see Petitioner get out of the vehicle, he saw the passenger door (the same door he saw Petitioner get into) open and then heard gunshots. (R. at 177-78.) He heard more shots as the vehicle was pulling off. (R. at 182.)
Deshawn Brown testified that on the night of the step show, although he did not arrive with Petitioner, he left with him because Petitioner said he would give Brown a ride home. (R. at 189-91.) He testified he was in the car with Petitioner and "two other fellows." (R. at 191.) Before they left the vicinity, the group drove over to the church parking lot, where there was a "commotion" taking place. (R. at 191.) According to Brown, Petitioner got out of the car and walked into the crowd. (R. at 192.) Brown testified that he heard gunshots and that at the time he heard the gunshots, Petitioner was in the crowd. (R. at 192.) Brown testified that after the shots, Petitioner ran back to the car; although Brown had not seen Petitioner with a gun up to that point, Brown saw Petitioner with a gun-that Brown described as a "black nine"-when they were driving off. (R. at 192-93, 195.) When asked what Petitioner did with the gun, Brown stated, "Shoot in the air." (R. at 193.) According to Brown, while they were driving off, Petitioner stated "[h]e think dog get hit," meaning that someone was shot. (R. at 196-97.) Brown further testified that after they left the scene, they went to Petitioner's house; Petitioner went inside the house with the gun. (R. at 193-94.) About three to five minutes later, Petitioner came back outside; he did not have the gun at that time. (R. at 194.) The group then drove back to the school; they were stopped by a police officer on the way. (R. at 194-95.) There was no gun in the car at that point. (R. at 195.)
Kenyon Nichols testified that he went to the step show and was planning to ride home with Petitioner and Ellis Judon afterwards. (R. at 212.) He testified that after the show, Ellis Judon was driving, and Petitioner was in the passenger seat. (R. at 213.) According to Nichols, they went into a "little yard by a church," and Petitioner got out and headed towards the crowd. (R. at 213-14.) Shortly after Nichols got out of the car, he heard gunshots and ran back towards the car. (R. at 214-15.) Nichols testified that once everyone was back inside the car, Petitioner started "shooting at the crowd" with a black gun he believed was a nine millimeter. (R. at 215-16.) Nichols further testified as follows:
(R. at 216.) Nichols indicated that after leaving the scene, they went to Petitioner's house; Petitioner was there briefly-he "came in and came back out." (R. at 216-17.) Nichols testified they went back to the school; they were stopped by police but the police did not find anything in the car. (R. at 217.)
Detective Chris Widmer of the North Charleston Police Department testified that he spoke to Petitioner after he was arrested. (R. 318-27.) According to Widmer, Petitioner told him that "he had heard the shooting and that he ran to the area to see what happened. But he also said that he didn't shoot anybody." (R. at 327.) Widmer testified that a 9mm pistol was found in Petitioner's home when it was searched pursuant to a search warrant. (R. at 324-26.)
Sergeant Doug Hester of the North Charleston Police Department testified that he spoke to Petitioner after reading Petitioner his Miranda rights. (R. at 335, 342-52.) Hester testified that Petitioner gave the following statement to Hester:
(R. at 350-51.)
Petitioner took the stand in his own defense. (R. at 433-76.) Petitioner testified that as he was standing around outside the high school after the show was over, he saw three or four fellows run to a truck. (R. at 435-36.) When asked how he reacted to that, Petitioner indicated that he "wasn't too much worried about that," but he did decide to "walk back to [his] car and . . . grab the gun [he] had." (R. at 436.) Petitioner testified that he was walking towards the area and had planned to shoot in the air, but he changed his mind and headed back to his car. (R. at 436-39.) Petitioner testified he then noticed "something was going on in the parking lot," so he started walking towards the parking lot. (R. at 439.) According to Petitioner, there were three separate fights going on in the parking lot. (R. at 441.) He further testified as follows:
(R. at 442.) Petitioner was not sure where the other man's gun was pointed because he did not look back. (R. at 444.) He stated that once he got back into the car, he heard more gunshots. (R. at 445.) Petitioner stated, "So riding off, I duck down and I took the gun out and start shooting in the air." (R. at 445.) When he got back into the car, Petitioner told his friends, "I think them boys get somebody." (R. at 446.) On cross-examination, Petitioner stated that he had loaded and cocked the gun earlier in the day, and that when he went to the church parking lot, it was cocked and loaded and ready to be used. (R. at 452-54, 463.)
As noted above, on November 15, 2011, the jury convicted Petitioner of murder. (R. at 557-58.) Having reviewed the factual background of the case, the undersigned now turns to Petitioner's individual grounds for relief. For the reasons set forth herein, the undersigned recommends denying Petitioner's "Dispositive Motion" (Dkt. No. 34) and Petitioner's Motion for Summary Judgment (Dkt. No. 39); the undersigned recommends granting Respondent's Motion for Summary Judgment (Dkt. No. 36.)
Petitioner asserts in Ground One that the trial court "erred by not allowing the jury to deliberate self-defense," in violation of his rights under the Fifth and Fourteenth Amendments. (Dkt. No. 1 at 6 of 15.) Petitioner states (verbatim),
(Id.)
Respondent contends that, of all the grounds raised in the instant § 2254 petition, only Ground Two is exhausted, as that is the "only issue presented to the state supreme court in the Petition for Writ of Certiorari following the denial of Post-Conviction Relief." (Dkt. No. 12 at 29 of 49.) Respondent notes that Petitioner challenged-at trial and on direct appeal-the trial judge's failure to instruct the jury on self-defense but asserts the "arguments made and the rulings of the state courts. . . addressed only whether the charge was required as a matter of state law," as Petitioner "did not frame the failure to charge as a constitutional issue in state court." (Id. at 29-30.)
The undersigned has reviewed the relevant portions of the trial transcript, and Petitioner did not raise any constitutional arguments to the trial judge with respect to his request for a self-defense charge. (See R. at 478-84.) Nor did Petitioner-in his Final Brief of Appellant-raise any constitutional arguments with respect to his assertion that the trial court erred in failing to instruct the jury on selfdefense. (See R. at 617-36.) In addressing Petitioner's claim that the trial court erred in failing to charge self-defense, the South Carolina Supreme Court stated, inter alia,
Slater II, 373 S.C. 66, 69-70, 644 S.E.2d 50, 52 (2007).
The South Carolina Supreme Court concluded that Petitioner "fails to meet the first requirement for the self-defense charge: specifically, Slater was not without fault in bringing on the difficulty." Id. at 70, 644 S.E.2d at 52. The court stated,
Slater II, 373 S.C. at 70, 644 S.E.2d at 52. The court noted that "the uncontradicted evidence illustrates that Slater acted in violation of the law by carrying a weapon." Id. at 70, 644 S.E.2d at 52. The court continued,
Slater II, 373 S.C. at 71, 644 S.E.2d at 53.
To the extent Petitioner claims the trial court's failure to charge the jury on self-defense violates the law of the state of South Carolina, such a claim is not cognizable herein. See Estelle v. McGuire, 502 U.S. 62, 67 (1991) ("[F]ederal habeas corpus relief does not lie for errors of state law." (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990))); see also 28 U.S.C. § 2254(a); Smith v. Moore, 137 F.3d 808, 821-22 (4th Cir. 1998) (refusing to entertain the habeas petitioner's contention that a jury instruction misstated South Carolina law). To the extent Petitioner claims the trial court's failure to charge the jury on self-defense violates his rights pursuant to the Fifth and Fourteenth Amendments, such a claim is defaulted, as such a claim was not raised to, or ruled upon, by any state court. See Matthews v. Evatt, 105 F.3d 907, 911-17 (4th Cir. 1997), abrogated on other grounds by Miller-El v. Dretke, 545 U.S. 231 (2005); see also Joseph v. Angelone, 184 F.3d 320, 328 (4th Cir. 1999) ("In order to avoid procedural default, the `substance' of [the petitioner's] claim must have been `fairly presented' in state court." (quoting Townes v. Murray, 68 F.3d 840, 846 (4th Cir. 1995))); Kornahrens v. Evatt, 66 F.3d 1350, 1361-62 (4th Cir. 1995); Thomas v. Gibson, 218 F.3d 1213, 1220-21 (10th Cir. 2000) (concluding petitioner defaulted on claim that counsel was ineffective for "failing to develop evidence that Kenneth Powell was the likely murderer or in failing to present that evidence to the jury at trial" where the petitioner failed "to adequately present the basis of this claim" in the state courts, even though the petitioner asserted "a generalized claim that his trial counsel had not adequately prepared for trial"); see also S.C. Dep't of Transp. v. M&T Enters. of Mt. Pleasant, LLC, 379 S.C. 645, 658, 667 S.E.2d 7, 14-15 (Ct. App. 2008) ("It is well settled that an issue must have been raised to and ruled upon by the trial court to be preserved for appellate review. Additionally, if the losing party has raised an issue in the lower court, but the court fails to rule upon it, the party must file a motion to alter or amend the judgment in order to preserve the issue for appellate review." (citations and internal quotation marks omitted)).
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)).
Petitioner contends that "[d]ue to newly after discovered evidence that Petitioner wasn't the shooter changes everything." (Dkt. No. 34 at 2 of 4.) Petitioner asserts that the SLED ballistics report indicates "that a bullet recovered from body of victim during autopsy was a silver tip nickel plated 9 mm hollow point bullet that was tested and confirm[ed] to have been fired by a 9mm handgun that was found at petitioner's house by search warrant." (Dkt. No. 34 at 1 of 4.) Petitioner states,
(Dkt. No. 34 at 1-2; see also Dkt. No. 21 at 2-4 of 10.)
The undersigned interprets this claim as an actual innocence claim. (See also Dkt. No. 39 at 1-2 of 5.) To meet the "threshold requirement" for actual innocence, Petitioner must "persuade[] the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 329 (1995). "To be credible," a claim of actual innocence "requires petitioner to support his allegations of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial." Id. at 324. The Schlup standard is a "demanding" one:
House v. Bell, 547 U.S. 518, 538 (2006) (citing Schlup, 513 U.S. 298).
Citing to Ms. Collins' autopsy report, Petitioner argues that the bullet recovered from the victim's body was a .22 caliber bullet and he, therefore, did not kill the victim. As a preliminary matter, it is not entirely certain that this autopsy report is considered "new" evidence, as it was certainly in existence at the time of Petitioner's trial.
The portion of Ms. Collins' autopsy report to which Petitioner points is in the "THORAX AND ABDOMEN" portion of the report; Petitioner points to the following passage:
(Dkt. No. 21-1 at 12-13 of 34; see also Dkt. No. 21 at 2-3 of 10.) In the opinion of the undersigned, this report does not constitute evidence sufficient to indicate that "more likely than not any reasonable juror would have reasonable doubt." House v. Bell, 547 U.S. at 538.
There is little more than Petitioner's say-so that the bullet recovered from the victim's body was a .22 caliber bullet. Officer Stanley testified at trial that State's Exhibit 27 was several projectiles she collected: one was a projectile that was removed from the victim's body during the autopsy; the second projectile was recovered by public safety from the victim's clothing; the third was a fragment from the door of the victim's vehicle; and the fourth was a projectile located at the scene. (R. at 279-80.) She also testified that State's Exhibit 33 was a 9mm handgun recovered from Petitioner's residence, that State's Exhibit 28 was shell casings recovered from Petitioner's residence, and that State's Exhibit 29 was nine fired 9mm shell casings recovered from the crime scene. (R. at 282-85.) Kenneth Whitler, employed by SLED in the firearms department of the laboratory and qualified as an expert, testified that in his expert opinion, State's Exhibit 33 (a 9mm handgun recovered from Petitioner's residence) fired the three fired projectiles in State's Exhibit 27. (R. at 368, 375.) Whitler also testified that State's Exhibit 33 fired the shell casings in State's Exhibits 28 and Exhibit 29. (R. at 375.)
In addition to the testimony of Officer Stanley and Mr. Whitler, Petitioner himself testified as follows:
(R. at 449-50.) Petitioner admitted that the bullets from his gun hit and killed the victim. (R. at 466-67.) On cross-examination, Petitioner further testified:
(R. at 473.) In light of the foregoing, Ms. Collins' report-which in no way identifies the caliber of the bullet recovered from the victim-does not convince the undersigned that, more likely than not, "no reasonable juror would find [Petitioner] guilty beyond a reasonable doubt." House, 547 U.S. at 538.
In Ground Two, Petitioner contends that trial counsel was ineffective in failing "to object to the 1st set of Miranda Warnings that failed to let defendant know he could end the interrogation." (Dkt. No. 1 at 7 of 15.) Petitioner states (verbatim),
(Dkt. No. 1 at 7-8 of 15.)
The PCR court addressed this claim of ineffective assistance of counsel. (See R. at 815-22.) The PCR court noted the testimony at the PCR hearing as follows:
(R. at 817.) The PCR court found counsel was not ineffective in failing to object to the first set of Miranda warnings. The court stated, inter alia,
(R. at 819-21.)
The undersigned recommends granting summary judgment to Respondent as to Ground Two. 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 by the PCR judge, trial counsel requested a Jackson v. Denno hearing at the beginning of trial.
(R. at 66.) Widmer testified that Petitioner indicated he understood his rights. (R. at 66.)
Sergeant Hester of the North Charleston Police Department testified that he interviewed Petitioner around 6 o'clock in the morning of February 4. (R. at 74-75.) Hester testified that he used a written Miranda warning sheet when reading the Miranda warnings to Petitioner; he testified that he signed the form as well as Petitioner, and that Petitioner initialed beside each warning. (R. at 75-77.) When asked what constitutional rights Hester advised Petitioner of, Hester read the form (verbatim):
(R. at 78-79.) Hester further testified as follows:
(R. at 79-80, 82.)
After hearing the testimony presented during the Jackson v. Denno hearing, the trial judge ruled that Petitioner was advised of his rights in compliance with Miranda v. Arizona and that Petitioner "understood and knowingly waived such rights." (R. at 95-96.) After Detective Widmer's direct examination testimony during the trial, the trial judge instructed the jury concerning consideration of the statements Petitioner made to Detective Widmer. (R. at 327-32.) The judge instructed the jury as follows:
(R. at 327-28.) The judge gave a similar instruction during Sergeant Hester's testimony. (See R. at 347-48.)
Respondent is entitled to summary judgment as to Ground Two because the state court's adjudication of this claim is not contrary to, or an unreasonable application of, clearly established federal law; nor did the adjudication result in an unreasonable determination of the facts. As stated in Miranda v. Arizona, 384 U.S. 436 (1966), in the context of custodial interrogation, "[p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Miranda, 384 U.S. at 444. The undersigned sees nothing in the Miranda decision to indicate that the Miranda warning must also include the right to "let [the] defendant know he could end the interrogation." See generally Miranda, 384 U.S. 436; see also Michigan v. Mosley, 423 U.S. 96, 99-100 & n.6 (1975) (noting the "specified warnings" required by Miranda are as follows: "The warnings must inform the person in custody `that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.'" (quoting Miranda, 384 U.S. at 444)); United States v. Ricks, 989 F.2d 501 (6th Cir. 1993) (unpublished table decision) (rejecting the argument that a Miranda warning must "include the right to stop answering questions at any time"); United States v. Lares-Valdez, 939 F.2d 688, 689-90 (9th Cir. 1991) ("We agree with the other federal courts that have ruled that a defendant need not be informed of a right to stop questioning after it has begun. The only warnings Miranda requires were those given to Lares-Valdez in this case, namely, that he had the right to remain silent, that anything he said could be used against him in court, that he had the right to consult an attorney before being asked any questions, that the attorney could be present during questioning and that if he could not afford a lawyer, one would be appointed for him if he wished." (citations omitted)); United States v. DiGiacomo, 579 F.2d 1211, 1214 (10th Cir. 1978) (noting that Miranda does not contain an "express requirement to warn suspects of the right to terminate questioning"). Given that Miranda does not require the warning Petitioner suggests, counsel's failure to object does not warrant habeas relief. See Werts v. Vaughn, 228 F.3d 178, 203 (3d Cir. 2000) ("counsel cannot be ineffective for failing to raise a meritless claim").
Petitioner raises several grounds for relief within Ground Three. (See Dkt. No. 1 at 9 of 15.) As set forth above, Petitioner raises the following claims in Ground Three (verbatim):
(Dkt. No. 1 at 9 of 15.) Respondent contends all of these grounds are procedurally defaulted. (Dkt. No. 12 at 45 of 49.) The undersigned agrees; none of these claims were ever raised in state court. Accordingly, the undersigned recommends granting summary judgment to Respondent as to the claims set forth in Ground Three. The undersigned further notes the claims are meritless.
As to Petitioner's assertion of a Brady violation, in that the victim "tested positive for cannabinoids cross re-actives bag of marijuana was found on scene victim had a breathing ailment, gunshot wounds weren't fatal," it appears that Petitioner points to another portion of Ms. Collins' autopsy report. (See Dkt. No. 21-1 at 16 of 34.) That portion of her report states,
(Dkt. No. 21-1 at 16 of 34.)
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment . . . ." Brady, 373 U.S. at 87. To show a Brady violation, the Petitioner must show: (1) the evidence was favorable to the accused; (2) the evidence was suppressed by the State, either willfully or inadvertently; and (3) prejudice ensued. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999). In the instant case, Brady does not appear to be implicated, given that a Brady claim requires that the evidence be suppressed by the State. From a review of the record, it appears that counsel had Ms. Collins' autopsy report during trial. (See R. at 298-99.) Petitioner's claim of a Brady violation is without merit, as Ms. Collins' autopsy report was not suppressed by the State.
As to Petitioner's claim concerning the lack of subject matter jurisdiction, any allegation that the trial court lacked subject matter jurisdiction is not cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[F]ederal habeas corpus relief does not lie for errors of state law."); see also Wright v. Angelone, 151 F.3d 151, 158 (4th Cir. 1998) (holding jurisdiction is a matter of state law); Von Longmore v. South Carolina, No. C.A. 9:05-CV-2112-MBS, 2006 WL 2827416, at *6 (D.S.C. Sept. 27, 2006) ("Petitioner is not entitled to federal habeas relief because the subject matter jurisdiction of a state trial court is a state law issue.").
As to Petitioner's claim of "failure to investigate," "newly after discovered evidence," and "police misconduct," the substance of these claims is that (a) the "[a]utopsy report was evidence that the victim had 2 different sized entry wounds"—"one big[ and] one small"; (b) the "small also yellow metal jacket projectile retrieve[d] from [the victim's] body contradicts" the ballistics report "done by SLED that [the] projectile in the body was nickel plated"; (c) the "victim was shot with 2 different caliber guns"; and (d) the North Charleston Police Department "switch[ed] out and planted projectiles." (Dkt. No. 1 at 9 of 15.) Many of the allegations of this claim have been addressed above, in addressing Petitioner's claim of actual innocence. These claims are, as noted by Respondent, procedurally defaulted, and for the reasons set forth above, Petitioner's claim of actual innocence is insufficient to lift the procedural bar. The undersigned further notes counsel's testimony-which was deemed credible by the PCR court-that he hired an expert to confirm the results of the ballistics test and that it "was clear that the weapon taken from [Petitioner's] house was the weapon that discharged the projectile that struck the victim." (R. at 782; see also R. at 819.)
As to Petitioner's claim of "conflict of interest," in that "trial counsel was [the] baseball coach of [the] victim and close friends with [the] victim's mother," (Dkt. No. 1 at 9 of 15), that claim is also procedurally defaulted. It is also without merit. The Sixth Amendment to the United States Constitution "guarantees criminal defendants the right to effective assistance of counsel, including the right to representation free from conflicts of interest." Gilbert v. Moore, 134 F.3d 642, 652 (4th Cir. 1998). Counsel is constitutionally ineffective if: (1) counsel's performance was deficient, or fell below an objective standard of reasonableness; and (2) this deficient performance prejudiced the client's case so that the criminal defendant was deprived of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To establish the first prong, a petitioner asserting a conflict of interest claim must demonstrate (1) that an actual conflict existed and (2) that it adversely affected counsel's performance. See Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). If these two prongs are met, the petitioner need not demonstrate prejudice. United States v. Magini, 973 F.2d 261, 263 (4th Cir. 1992).
Here, there is no evidence of a conflict of interest other than Petitioner's assertion that one existed.
As noted above, Petitioner filed two motions: a "Dispositive Motion" (Dkt. No. 34) and a Motion for Summary Judgment (Dkt. No. 39). Petitioner's Motion for Summary Judgment has been considered in making a recommendation with respect to Respondent's Motion for Summary Judgment, and for the reasons set forth herein, the undersigned recommends granting Respondent's Motion for Summary Judgment (Dkt. No. 36). Accordingly, the undersigned recommends denying Petitioner's Motion for Summary Judgment (Dkt. No. 39).
As to Petitioner's "Dispositive Motion", Petitioner simply makes various arguments about why he is entitled to relief on Grounds One, Two, and Three of his habeas petition. (See generally Dkt. No. 34). As he is not entitled to habeas relief for the reasons set forth herein, the undersigned recommends denying Petitioner's "Dispositive Motion" (Dkt. No. 34).
It is RECOMMENDED, for the foregoing reasons, that Respondent's Motion for Summary Judgment (Dkt. No. 36) be GRANTED; that Petitioner's "Dispositive Motion" (Dkt. No. 34) and Petitioner's Motion for Summary Judgment (Dkt. No. 39) be DENIED; and that 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:
8 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.
