Opinion
C/A No.: 1:18-3231-JFA-SVH
09-25-2019
James Anderson, Petitioner, v. Warden, Respondent.
REPORT AND RECOMMENDATION
James Anderson ("Petitioner") is an inmate at the Lieber Correctional Institution of the South Carolina Department of Corrections. He 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) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's return and motion for summary judgment. [ECF Nos. 26, 27]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion by April 25, 2019. [ECF No. 28]. Petitioner filed a response on April 24, 2019 [ECF No. 30], to which Respondent replied on April 30, 2019 [ECF No. 31].
On June 26, 2019, Petitioner moved to dismiss grounds one, three, and seven of his amended petition. [ECF No. 32]. On July 5, 2019, Respondent filed a response consenting to Petitioner's motion. [ECF No. 33]. The undersigned recommends granting Petitioner's motion to dismiss.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends granting Respondent's motion for summary judgment. I. Factual and Procedural Background
The underlying facts are not in dispute. During the week of July 4, 2009, Christian Vickery, Allen Smith, and J.E., a minor, were vacationing with their families in Myrtle Beach, South Carolina. [See ECF No. 26-1 at 359]. On the night of July 8, 2009, someone broke into their hotel suite and burglarized it. Id. Petitioner was subsequently arrested for the crime. Id.
In July 2010, the Horry County grand jury indicted Petitioner for first-degree burglary (Indictment No. 2010-GS-26-2883). [ECF No. 26-1 at 368]. On March 12, 2012, represented by William Edward Chrisco ("Trial Counsel"), Petitioner proceeded to trial before the Honorable Benjamin H. Culbertson, Circuit Court Judge. Id. at 1. On March 14, 2012, the jury found Petitioner guilty as charged and Judge Culbertson sentenced him to 25 years' imprisonment. Id. at 214, 217.
Petitioner timely appealed and presented the following issues:
I. The trial court's qualification of a police officer as an expert in fingerprint analysis violated Appellant's right to a fair trial because the officer lacked the requisite knowledge, skill, experience, training, and education to form an opinion and testify accordingly.
II. The trial judge erred in refusing to strike the testimony concerning fingerprint analysis, or in the alternative declare a mistrial, based upon the prosecutor's failure to disclose evidence favorable to Appellant and material to his guilt in violation of Appellant's state and federal constitutional rights to due process.[ECF No. 26-2 at 5]. The South Carolina Court of Appeals ("Court of Appeals") affirmed Petitioner's conviction on February 12, 2014, State v. Anderson, 754 S.E.2d 905 (S.C. Ct. App. 2014), and denied Petitioner's petition for rehearing on March 21, 2014 [ECF No. 26-4 at 1].
On April 24, 2014, Petitioner filed a petitioner for a writ of certiorari in the Supreme Court of South Carolina, presenting the following question:
Did the Court of Appeals err in affirming the trial judge's refusal to strike the testimony concerning fingerprint analysis, or in the alternative, declare a mistrial, based upon the prosecutor's failure to disclose evidence favorable to Petitioner and material to his guilt in violation of Petitioner's state and federal constitutional rights to due process?[ECF No. 26-5 at 4]. The Supreme Court of South Carolina denied the petition on November 10, 2014, and issued the remittitur on December 12, 2014. [ECF Nos. 26-1 at 366, 26-6 at 1].
On March 23, 2015, Petitioner filed a pro se application for post-conviction relief ("PCR") and asserted the following grounds:
10(a) Applicant was denied the right to effective assistance of counsel—guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article 1, §§ 3 and 14 of the South Carolina Constitution—during the guilt or innocence phase of his trial.
11(a) Supporting facts: Trial counsel's performance during the
guilt-or-innocence phase was both unreasonable and prejudicial. Counsel's acts or omissions included, but are not limited to, the following:
1. Counsel failed to adequately investigate the facts and circumstances surrounding the direct evidence of eye witness testimony.
2. Counsel's failure to such an investigation deprived the jury of vital information relevant to an accurate assessment of applicant's guilt or innocence.
3. Counsel failed to seek an instruction stating that a burglary charge must set forth one, specific crime intended upon entry and stating what the specific crime was in this case.
10(b) Applicant was denied the right to effective assistance of counsel - guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, §§ 3 and 14 of the South Carolina Constitution - during the sentencing phase of his trial.
11(b) Supporting Facts: Trial counsel's performance during the sentencing phase was both unreasonable and prejudicial. See Strickland v. Washington, 466 U.S. 668 (1984). Counsel's acts or omissions included, but are not limited to, the following:
1. Counsel failed to investigate, develop, and present all available, relevant, and admissible mitigating evidence. As a result of counsel's failure to uncover and present this evidence, applicant's sentence is unreliable.
2. Counsel failed to object on all possible grounds to inflammatory and irrelevant evidence presented by the prosecution. As a result of counsel's failure to make all appropriate objections, applicant's sentence is unreliable.
10(c) Applicant was denied his due process rights as secured by the Fourth and Fourteenth Amendments because of the cumulative effect of several instances of deliberate prosecutorial misconduct.
11(c) Supporting Facts: Prosecutors during all phases of this case acted unreasonable and prejudicial. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963) along with South Carolina Rule 5. Prosecutors acts or omissions included by not limited to, the following:[ECF No. 26-1 at 230-34 (errors in original)]. The State filed a return on August 25, 2015. Id. at 235-39. The Honorable Michael J. Nettles, Circuit Court Judge, held an evidentiary hearing on February 7, 2017, at which Petitioner was represented by Steven W. Fowler, Esq. Id. at 241-346. Petitioner and Trial Counsel testified regarding Petitioner's claims of ineffective assistance of counsel and prosecutorial and juror misconduct. Id. On May 4, 2017, Judge Nettles denied Petitioner's PCR application and dismissed it with prejudice. Id. at 347-57.
1. Prosecutor did not provide trial defense counsel with discovery materials in a timely fashion.
2. Prosecutor did not provide defense counsel with all relevant discovery materials.
3. Prosecutor did provide fraudulent materials to defense counsel six days prior to trial.
4. Prosecutors deceiving tactics did impede the defense in making reasonable decisions did result in unethical conduct.
10(d) Applicant was denied his Sixth Amendment right to a trial by an impartial and objective jury.
11(d) Supporting Facts: During voir dire potential jurors were asked about any type of relationships with defendant, if so please stand. (No response) See McCoy v. State, 401 S.C. 363, 737 S.E. 2d 623 (2013). Jurors concealment deprived him of information material to his intelligent use of peremptory challenges. Jurors act or omissions included but not limited to:
1. Juror who was empaneled and sat through entire trial did intentionally conceal information and was directly in contempt of court.
2. Juror concealed information that would have supported a challenge for cause or would have been a material factor in the use of the party's peremptory challenges.
On March 8, 2018, Petitioner appealed the PCR court's decision to the South Carolina Supreme Court through a Johnson petition for a writ of certiorari filed by Appellate Defender LaNelle Cantey Durant. [ECF No. 26-7 at 1-11]. The petition presented the following issue:
Johnson v. State, 364 S.E.2d 201 (S.C. 1988) (approving "the withdrawal of counsel in meritless post-conviction appeals, provided the procedures outlined in Anders v. California, 386 U.S. 738 (1967), were followed").
Did the PCR court err by not finding trial counsel ineffective for failing to conduct a sufficient investigation into Petitioner Anderson's case by not interviewing the main witness, Joe E., a minor who testified at the trial and identified Petitioner as the burglar when the witness had told the state before trial that he could not identify the burglar but trial counsel never talked to this witness?Id. at 3. Durant certified the petition was without merit and requested to be relieved as counsel. Id. at 12-13. Petitioner did not file a pro se response to the Johnson petition. The South Carolina Supreme Court denied the petition for a writ of certiorari and granted Durant's request to be relieved as counsel on October 10, 2018. [ECF No. 26-8]. On October 26, 2018, the court issued the remittitur, which was filed on October 29, 2018. [ECF No. 26-9]. II. Discussion
A. Federal Habeas Issues
Petitioner originally asserted six grounds for relief. [See ECF No. 20-1 at 5-12]. On January 29, 2019, he amended his petition to add a seventh ground. [ECF No. 20]. On June 26, 2019, Petitioner withdrew Grounds One, Three, and Seven. [ECF No. 32]. Accordingly, Petitioner raises the following grounds: Ground Two: The trial judge erred in refusing to strike the testimony concerning fingerprint analysis, or in the alternative declare a mistrial. Ground Four: Failure to investigate and adequately cross examine witness [minor JE] which was a minor at the time. Ground Five: Prosecutorial misconduct; prosecutor did not provide trial defense counsel with discovery in a timely fashion. She been had that statement because the officer talked to [minor JE] the night of the burglary. Ground Six: Prosecutorial misconduct, prosecutor did not provide defense counsel with all relevant discovery materials. [ECF No. 20-1 at 5-12 (errors in original)].
B. Standard for Summary Judgment
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "[S]ummary judgment will not lie if the dispute about a material fact is 'genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. 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.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e).
C. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act ("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, 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." Id. at 410. Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
2. Procedural Bar
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. Id. The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require a habeas petitioner to 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.
a. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of
the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254.
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). 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 (S.C. 1976). If the PCR court fails to address a claim as is required by S.C. Code Ann. § 17-27-80, 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 (S.C. 2007). Furthermore, strict time deadlines govern direct appeal 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.
In Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009), the Fourth Circuit found that, prior to the Supreme Court of South Carolina's November 5, 2007, decision in Marlar, South Carolina courts had not been uniformly and strictly enforcing the failure to file a motion pursuant to Rule 59(e), SCRCP, as a procedural bar. Accordingly, for matters in which there was a PCR ruling prior to November 5, 2007, the court will not consider any failure to raise issues pursuant to Rule 59(e) to effect a procedural bar.
The United States Supreme Court has held that "state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process"—which includes "petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This opportunity must be given by fairly presenting to the state court "both the operative facts and the controlling legal principles" associated with each claim. Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (citing Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) (internal quotation marks omitted)). That is to say, the ground must "be presented face-up and squarely." Mallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994) (citation and internal quotation marks omitted).
The South Carolina Supreme Court has held that the presentation of claims to the state court of appeals without more is sufficient to exhaust state remedies for federal habeas corpus review. State v. McKennedy, 559 S.E.2d 850 (S.C. 2002); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454 (S.C. 1990). The McKennedy court held that In re Exhaustion had placed discretionary review by the South Carolina Supreme Court "outside of South Carolina's ordinary appellate review procedure pursuant to O'Sullivan." 559 S.E.2d at 854. As such, it is an "extraordinary" remedy under O'Sullivan, "technically available to the litigant but not required to be exhausted," Adams v. Holland, 330 F.3d 398, 403 (6th Cir. 2003).
Because the South Carolina Supreme Court has held that presentation of certain claims to the Court of Appeals without more is sufficient to exhaust state remedies, a claim is not procedurally barred from review in this court for failure to pursue review in the South Carolina Supreme Court after an adverse decision in the Court of Appeals.
b. Procedural Bypass
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 Supreme Court explains:
. . . [state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.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), superseded by statute on other grounds (AEDPA).
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 Matthews v. Evatt, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Teague v. Lane, 489 U.S. 288, 297-98 (1989); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996); Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990)).
3. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the state courts 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, 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 which 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 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
D. Analysis
Respondent admits Petitioner's remaining grounds are exhausted and preserved for habeas review. [ECF No. 26 at 16, 19-20]. Accordingly, the undersigned analyzes Petitioner's claims under § 2254(d) and assesses whether the state courts unreasonably applied established Supreme Court precedent or based their decisions on an unreasonable determination of the facts.
1. Ground Two
In Ground Two, Petitioner asserts the trial court erred in refusing to strike the State's fingerprint analysis testimony, or in the alternative declare a mistrial, based on the prosecution's failure to disclose related evidence. [ECF No. 20-3 at 7]. Petitioner raised this issue on direct appeal and incorporates his petition for rehearing in that action as his argument here. Id.
At trial, the State's fingerprint analysis expert, Brad McClelland, testified that when he submitted an unknown fingerprint from the crime scene to the Automated Fingerprint Identification System ("AFIS"), he requested and received 30 similar prints for comparison. [ECF No. 26-1 at 106]. Trial Counsel called a bench conference and informed the court the prosecution had not provided detailed information on all 30 AFIS hits in response to his motion for production and disclosure. Id. at 106-07. Rather, the prosecution had produced a single printout listing the 30 hits and their respective AFIS identification numbers. Id. at 107-08. Trial Counsel asserted, had he received the information for the 30 hits, he would have conducted his own comparisons and potentially developed helpful evidence for his client. Id. at 107. After argument from both attorneys and a break to research relevant law, the court ruled as follows:
The rule for exculpatory evidence, it has to be disclosed but you have to show that there's a high probability or a probability that the exculpatory evidence if produced would have brought about a different result at trial. We don't know if that's the case here. We don't even know if it is exculpatory evidence. The rules of criminal procedure, you did make the request but it says that they have to give you the test results, which they gave you the test results. I'm going to go ahead and deny any motion by the Defendant to exclude the evidence or declare a mistrial or anything of that nature and go ahead and proceed.Id. at 112-13.
McClelland later testified he analyzed two of the 30 prints. Id. at 118. He explained he stopped his analysis after determining the second print was a match to the print from the crime scene. Id.
The Court of Appeals affirmed the trial court's denial of counsel's motions, finding:
The Brady disclosure rule requires the prosecution to provide the
defendant with any evidence in the prosecution's possession that may be favorable to the accused and material to guilt or punishment. Hyman v. State, 397 S.C. 35, 45, 723 S.E.2d 375, 380 (2012). Favorable evidence is either favorable exculpatory evidence or favorable impeachment evidence. United States v. Bagley, 473 U.S. 667, 676 (1963). Materiality of evidence is based on the reasonable probability that the result of the proceeding would have been different had the evidence been disclosed to the defense. Hyman, 397 S.C. at 45, 723 S.E.2d at 380. A reasonable probability is shown when the government's evidentiary suppression undermines confidence in the outcome of the trial. Id. at 45-46, 723 S.E.2d at 380. Furthermore, the prosecution has the duty to disclose such evidence even in the absence of a request by the accused. United States v. Agurs, 427 U.S. 97, 107 (1976). Thus, an individual asserting a Brady violation must demonstrate the evidence was (1) favorable to the accused; (2) in the possession of or known by the prosecution; (3) suppressed by the State; and (4) material to the accused's guilt or innocence, or was impeaching. Kyles v. Whitley, 514 U.S. 419, 419 (1995).Anderson, 754 S.E.2d at 286-87.
In our opinion, Brady does not require the State to turn over the unmatched prints to Anderson. In response to Anderson's discovery request, the State provided the AFIS results screenshot, which showed AFIS had produced thirty responses to McClelland's query. Anderson makes no showing that if he obtained the individual printouts of the unmatched fingerprints, they would constitute exculpatory or favorable impeachment evidence. Because the exculpatory value of the unmatched prints was entirely speculative, we find it does not fall within the rule enunciated by Brady. See Agurs, 427 U.S. at 109-10 (holding the mere possibility that an item of undisclosed information may have been helpful to the defense in its own investigation is insufficient to establish constitutional materiality under Brady). Accordingly, we hold the trial court did not err in this respect.
Petitioner argues the Court of Appeals "overlooked or misapprehended the evidence of the prints themselves and how the AFIS worked." [ECF No. 26-3 at 3]. Petitioner asserts AFIS returns results in descending order of similarity to the unknown print. Id. Thus, according to the AFIS algorithm, the first print, which McClelland rejected, was actually more similar than the second, which McClelland declared a match. Id. Further, AFIS ranked the third print, which McClelland did not examine, almost as similar as the second print. Id. Petitioner contends, had he had access to the other prints, he could have impeached McClelland with specificity regarding his "arbitrary rejection" of the first print and obtained an expert to impeach McClelland's methods and opinion. Id. at 4.
Respondent asserts Petitioner's reliance on an unsupported, speculative, and conclusory allegation that the additional prints could have revealed a closer match to another unknown individual is not enough to entitle him to habeas relief. [ECF No. 26 at 23-24]. In addition, Respondent argues, because McClelland reviewed the AFIS results on a computer screen and did not print copies of the file, the prosecution was not in possession of the unmatched prints and, therefore, could not turn them over to the defense. Id. at 24.
The fingerprint analysis and McClelland's testimony were key aspects of the State's case against Petitioner. Thus, the ability to further impeach either would have benefited Petitioner. However, Petitioner has not demonstrated the materiality of the remaining 29 prints and, accordingly, has not shown the Court of Appeals unreasonably interpreted Supreme Court precedent or based its decision on an unreasonable interpretation of the facts. See 28 U.S.C. § 2254(d).
Petitioner asserts he could have used the AFIS rankings and scores to impeach McClelland. [ECF No. 26-3 at 3-4]. However, by Petitioner's own admission, that information appeared on the printout the State produced and was implicit in AFIS's mechanics and algorithm. Id. at 3 (stating the printout the State provided contained each print's AFIS score). In addition, trial counsel vigorously cross-examined McClelland regarding his lack of experience, lack of certification, the potential for error in his analysis, his decision to only compare two fingerprints, and the possibility that one of the other prints was more similar than Petitioner's. [ECF No. 26-1 at 115-130]. Despite counsel's questions, McClelland remained firm in his opinion there was a zero percent chance he misidentified the print. See id. at 119, 134-35.
Based on this record, Petitioner fails to show how additional information concerning the 29 other prints could "put the whole case in such a different light as to undermine confidence in the verdict." See Kyles, 514 U.S. at 435. Thus, Petitioner fails to show the Court of Appeals erred in finding the additional fingerprint evidence immaterial under Brady and fails to show he is entitled to habeas relief on this ground.
2. Ground Four
In Ground Four, Petitioner asserts Trial Counsel was ineffective for failing to investigate or adequately cross-examine one of the State's witnesses, J.E. [ECF No. 20-3 at 11]. Petitioner raised this issue in his PCR application and the PCR court addressed it on the merits. [See ECF No. 26-1 at 353-54].
Approximately one week prior to trial, the prosecution identified J.E., a minor who saw the burglar in the hotel room, as a potential witness. [ECF No. 26-1 at 251]. The prosecution indicated J.E. could not identify the perpetrator and knew only that he was a black male of average height. Id. at 305-06. Based on that information, Trial Counsel assumed J.E.'s testimony could not hurt his client and did not investigate further or request to interview J.E. prior to trial. Id. at 312-13.
At trial, J.E. testified he was on the couch in the living room area of the hotel suite, texting friends, when he saw "an average dark male" coming through the kitchen toward him. Id. at 52-53. J.E. stated he stood up and the man turned and ran out of the hotel room. Id. at 52. He described the man as a little bit shorter than six feet, darker-skinned, with dark hair. Id. at 54. The prosecutor then asked J.E. what he did after he observed "the Defendant" leave the hotel room. Id.
Expecting to impeach J.E.'s suggestion that he recognized Petitioner as the burglar, Trial Counsel opened his cross-examination with the following exchange:
Q [Pointing to Petitioner] Is that the person that was in your room?Id. at 55. Trial Counsel then questioned J.E. regarding his initial inability to identify Petitioner to the police, the hotel room's lightning, and the distance between him and the burglar. Id. at 55-59.
A Looks about the same height and the - - -
Q Is that the same person that was in the room?
A Yes, sir.
Q No doubt in your mind?
A No doubt.
Q No doubt whatsoever.
A No doubt, sir.
At the PCR evidentiary hearing, Trial Counsel testified he expected J.E. to respond that he did not definitively know Petitioner was the man from the hotel room. Id. at 306. Trial counsel thought J.E. waivered in his identification during direct examination and knew he was not previously able to positively identify Petitioner or describe the burglar with any specificity. Id. Trial Counsel explained his goal on cross-examination was to elicit testimony that J.E. did not know Petitioner was the man in the hotel room and he was surprised by J.E.'s contradictory statement. Id. at 306-07.
Trial Counsel also indicated he would not have investigated J.E. or his potential testimony, even if allotted more time. Id. 314-15. As far as he knew, J.E. could state only that the man in the hotel room was black and of average height, maybe a little shorter than himself. Id. Trial Counsel did not believe additional time or investigation would have generated different information or better prepared him for cross-examination. Id. at 313-15.
The prosecutor testified J.E. told her in their pre-trial interview that he would not be able to identify Petitioner. Id. at 324-25. As a result, she purposefully avoided asking him to identify Petitioner during her examination and was also surprised by J.E.'s positive identification on cross-examination. Id. at 325-27.
The PCR court considered the merits of this issue and, after reciting the applicable legal standards, found as follows:
This Court finds Applicant has failed to meet his burden to prove Counsel was ineffective for failing to investigate[] the facts and circumstances surrounding eye witness testimony. J[]E identified the defendant during direct examination by the State. Counsel sensed some uncertainty in J[]E's identification and pursued that during cross examination. Counsel also impeached [J.E.] by using his prior statement to law enforcement in which he could not identify Applicant. This Court finds Counsel's cross examination of the witness not only reasonable in light of the circumstances, but an effective impeachment to call into question the witness's credibility for the jury to consider.Id. at 353-54 (citations to the record omitted).
This Court finds Counsel and [the prosecutor's] testimony that J[]E's prior statement was inconsistent with his identification testimony at trial is credible. Based on the discovery that was provided to Counsel, it was reasonable to view J[E]'s statement as favorable to his defense and opt not to pursue an interview with the minor witness. Counsel is not expected to have the foresight to know a witness will testify to something different than their statement to law enforcement. With such a surprise, Counsel was astute in his decision to cross examine him based on his prior inconsistent statement and impeach his credibility. Ultimately, the credibility of his testimony was for the jury to determine. Therefore, this Court finds these allegations are without merit and are denied and dismissed with prejudice.
As support for this ground, Petitioner resubmits his Johnson petition for a writ of certiorari. [ECF No. 20-3 at 11]. In his Johnson petition, Petitioner claimed the PCR court erred in not finding Trial Counsel ineffective for not fully investigating his case because
Trial counsel was the one to find information by investigating the evidence provided by the state even if it was six days before trial. Trial counsel was experienced enough to know that witnesses change their stories. It was counsel's duty to talk with the witness J[]E., especially since he was a minor, to determine if counsel believed the witness to be credible and reliable.[ECF No. 26-7 at 10]. Relying on state law, Petitioner asserted "[f]ailure to investigate possible defenses constitutes ineffective assistance of counsel" and trial counsel had a "duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case." Id. at 9 (citing Cobbs v. State, 408 S.E.2d 223 (1991); State v. Sanders, 534 S.E.2d 696 (2000); Ard v. Catoe, 642 S.E.2d 590 (2007)).
Notably, Petitioner's Johnson petition did not address Petitioner's assertion that Trial Counsel failed to adequately cross-examine J.E. [See generally ECF No. 26-7]. Nor does Petitioner argue that portion of Ground Four in his response to Respondent's motion for summary judgment. [See generally ECF No. 30]. Accordingly, Petitioner appears to have abandoned that claim. See Eady v. Veolia Transp. Servs., Inc., 609 F. Supp. 2d 540, 560-61 (D.S.C. 2009) ("The failure of a party to address an issue raised in summary judgment may be considered a waiver or abandonment of the relevant cause of action.").
Strickland and its progeny demand a more nuanced and context-dependent analysis of attorney performance. Under Strickland, "Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary" so that "a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691. "Counsel must ordinarily 'investigate possible methods for impeaching prosecution witnesses,' and in some instances failure to do so may suffice to prove a claim under Strickland." Huffington v. Nuth, 140 F.3d 572, 580 (1998). However, "[t]he Sixth Amendment . . . does not always compel counsel to undertake interviews and meetings with potential witnesses where counsel is familiar with the substance of their testimony." Id. (collecting cases).
Here, the PCR court found Trial Counsel reasonably believed he was familiar with the substance of J.E.'s testimony and that the testimony would be favorable to Petitioner. The court found, based on the information available to him at the time, Trial Counsel made a reasonable tactical decision not to further investigate that accorded appropriate deference under Strickland. Petitioner fails to show how the PCR court's decision was an unreasonable application of clearly established Supreme Court precedent or based on an unreasonable interpretation of the facts. See 28 U.S.C. § 2254(d). Accordingly, Petitioner fails to show he is entitled to habeas relief on Ground Four.
3. Grounds Five and Six
In Grounds Five and Six, Petitioner asserts claims of prosecutorial misconduct for the prosecution's failure to (1) identify J.E. as a potential witness sooner and (2) provide trial counsel with the unmatched fingerprints from AFIS. [ECF No. 20-3 at 12]. Petitioner raised both claims at PCR and also raised the fingerprint claim on direct appeal. The PCR court found neither claim appropriate and deferred to the Court of Appeals' finding that no Brady violation occurred concerning the fingerprint issue. [ECF No. 26-1 at 355-56]. However, the PCR court did address the merits of Petitioner's claim regarding the prosecution's delay in identifying J.E. as a potential witness. Id. at 356.
The undersigned already examined the Court of Appeals' Brady finding in her discussion of Ground Two and the only additional argument Petitioner advances in support of this claim in Ground Six are citations to portions of the trial transcript the undersigned considered in her prior analysis. [See ECF No. 20-3 at 12]. Nor does Petitioner address this claim in his response to Respondent's motion for summary judgment. [See generally ECF No. 30]. Accordingly, the undersigned incorporates discussion of Ground Two and finds Petitioner fails to show the Court of Appeals erred in finding the additional AFIS hits immaterial under Brady.
Regarding the timing surrounding the prosecution's identification of J.E. as a potential witness, at the PCR evidentiary hearing, in addition to the testimony already discussed in Ground Four, the prosecutor stated she did not know J.E. was in the hotel room at the time of the burglary until another witness provided his name during an interview. [ECF No. 26-1 at 323]. She testified J.E.'s father did not want her to speak with J.E., so she was unable to interview him until close to trial. Id. at 324. She recalled preparing a letter to Trial Counsel identifying J.E. and two other people as potential witnesses as soon as she discovered them and knew what they might say. Id. at 326. She said she wanted to alert Trial Counsel right away because the three witnesses were not named in the police report and she wanted to ensure he knew they existed. Id.
In denying Petitioner's claim, the PCR court found:
[W]ith regard to Applicant's complaint that the State failed to make a timely disclosure of certain witnesses and statements, this Court finds this prosecutorial conduct claim is not proper for PCR. Regardless, this Court finds [prosecutor]'s testimony that she turned over the witness list and statement as soon as she obtained it to be credible. Counsel's testimony that he would not have benefited from receiving it earlier is also credible. This Court finds the State provided Applicant with all of the discovery in this case and committed no error by disclosing discovery the week before trial, where the State was not aware of the discovery beforehand.Id. at 356.
Petitioner claims the PCR court based its decision on an unreasonable interpretation of the facts because J.E. spoke with officers the night of the burglary, so the prosecution must have been aware of his statement. [ECF No. 20-3 at 12]. In support, Petitioner references portions of the trial transcript where J.E. identifies Petitioner as the burglar and describes his statement to police after the burglary. Id. (citing ECF No. 26-1 at 55-56). Petitioner also relies on the letter the prosecutor sent Trial Counsel identifying J.E. as a potential witness. Id.
Petitioner's conclusory allegation and references to the record are insufficient to call into question the PCR court's finding that the prosecutor's testimony was credible and factual determination that the prosecutor identified J.E. as a witness as soon as practicable. See Marshall v. Lonberger, 459 U.S. 422, 434 (1983) ("federal habeas courts [have] no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them"); Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) ("for a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear"); 28 U.S.C. 2254(e)(1) (instructing a federal habeas court to presume the correctness of a state court's factual findings, unless the petitioner proves otherwise by "clear and convincing evidence").
Accordingly, Petitioner fails to show the PCR court's decision was based on an unreasonable determination of the facts or unreasonably applied established Supreme Court precedent, and he is not entitled to habeas relief on this ground. III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends Respondent's motion for summary judgment be granted and the petition be dismissed with prejudice.
IT IS SO RECOMMENDED. September 25, 2019
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).