Opinion
CA 9:21-cv-01143-BHH-MHC
12-10-2021
Edward R. Anthony, Petitioner, v. South Carolina Department of Probation, Pardon, and Parole Services, Respondent.
REPORT AND RECOMMENDATION AND ORDER
Molly H. Cherry United States Magistrate Judge
Petitioner Edward R. Anthony, (“Petitioner”), proceeding pro se, petitions the Court for a writ of habeas corpus under 28 U.S.C. § 2254 (“Petition”). 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 September 23, 2021, 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 for Summary Judgment within 31 days. ECF No. 27. On October 28, 2021, Petitioner responded to Respondent's Motion for Summary Judgment by filing a Motion to Reverse and Vacate, along with a CD containing video evidence he alleges was withheld throughout his state court proceedings. ECF Nos. 29, 31. Respondent filed a Response in Opposition to Petitioner's Motion Reverse and Vacate and moved to strike the CD. ECF Nos. 32, 33. Petitioner has not responded to Respondent's Motion to Strike or replied to Respondent's Response in Opposition to his Motion to Reverse and Vacate and the time to do so has expired.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 26, be granted, Petitioner's Motion to Reverse and Vacate, ECF No. 29, be denied, and the Petition, ECF No. 1, be dismissed. In addition, for the reasons stated below, Respondent's Motion to Strike, ECF No. 33, is granted.
I. BACKGROUND
The parties agree on the following facts. The evening of March 16, 2014, Petitioner entered a Belk Department Store in North Augusta, South Carolina. The loss prevention officer thought she recognized Petitioner from three prior thefts and watched him on the camera as he selected clothing from the men's department, entered the dressing room with the clothing, exited the dressing room without the clothing, but with a possible bulge in his sweatshirt, and proceeded toward the exit. The loss prevention officer called the police, who arrived just as Petitioner was about to exit the store. Petitioner immediately turned around and headed back into the store as the police came through the doors. The loss prevention officer found multiple items of clothing with their alarms removed and an associate located the alarms in the dressing room. The police frisked Petitioner and found a pair of pliers in his right front pocket. Petitioner was arrested and taken to the Aiken County Detention Center.
In July 2014, the Aiken County Grand Jury indicted Petitioner for shoplifting (2017-CP-02213). ECF No. 25-2 at 55-57. Petitioner proceeded to trial before the Honorable R. Lawton McIntosh on April 14, 2015, represented by M. Bradley McMillian and Barry L. Thompson. ECF No. 25-1 at 3. The jury found Petitioner guilty, and Judge McIntosh sentenced him to six years in prison, suspended upon service of forty-five months, and five years' probation. ECF No. 25-1 at 259-60, 267. Petitioner is currently on probation.
Petitioner timely appealed and, through Appellate Defender Tiffany L. Butler, raised the following issue:
Did the trial judge err by refusing to exclude evidence that Appellant allegedly shoplifted from the Belk Department Store on three separate occasions prior to the March 16, 2014 incident date, where the prior bad act evidence was not a common scheme or plan, was not necessary to establish Appellant's identity, had no probative value, and even if the prior bad act evidence was relevant, any probative value it had was substantially outweighed by its prejudicial effect against Appellant?ECF No. 25-3 at 4. After response briefing by the State, the South Carolina Court of Appeals affirmed Petitioner's conviction and sentence. State v. Anthony, Op. No. 2016-UP-507 (S.C. Ct. App. Dec. 7, 2016); ECF No. 25-5. The court issued the remittitur on December 28, 2016. ECF No. 25-6.
Petitioner filed an application for Post-Conviction Relief (“PCR”) on February 7, 2017 and presented the following grounds:
(1) Probable cause never existed to make arrest or detain
(2) Trial judge allowed hearsay testimony at trial
(3) Both officer and store clerk gave perjured testimony during trial
(4) Brady violation - prosecutor withheld exculpatory evidence
(5) Ineffective assistance of counsel
a. Counsel failed to make timely objections
b. Counsel failed to motion for dismissal of charges
c. Counsel labored under conflict of interest
d. Trial counsel demonstrated deficient performance on part of failure and the result of prejudice from him prejudiced the defendantECF No. 25-1 at 272. The State filed a Return and Partial Motion to Dismiss on May 16, 2017, ECF No. 25-1 at 277-82, and the Honorable William P. Keesley conducted an evidentiary hearing on January 23, 2018, ECF No. 25-1 at 283-25-2 at 37. Petitioner was represented at the hearing by Lance S. Boozer. ECF No. 25-1 at 283. During the hearing, Petitioner amended his first three grounds to allege related claims of ineffective assistance of counsel and prosecutorial misconduct. ECF No. 25-1 at 287-88. Judge Keesley dismissed Petitioner's application on April 9, 2018. ECF No. 25-2 at 38-54.
Appellate Defender LaNelle Cantry DuRant appealed the PCR court's decision through a Johnson petition for writ of certiorari and presented one issue:
Johnson v. State, 364 S.E.2d 201 (S.C. 1988) (applying the factors in Anders v. California, 386 U.S. 738 (1967), to post-conviction appeals). Anders requires that counsel who seeks to withdraw after finding the “case to be wholly frivolous” following a “conscientious examination” must submit a brief referencing anything in the record that arguably could support an appeal; furnish a copy of that brief to the defendant; and after providing the defendant with an opportunity to respond, the reviewing court must conduct a full examination of the proceedings to determine if further review is merited. Anders, 386 U.S. at 744.
Did the PCR court err in finding that Petitioner Anthony was not prejudiced by trial counsel failing to object to the solicitor asking Petitioner Anthony if he were called “Freddy the Polo guy” who sold Polo shirts on the street corner although the PCR court found that trial counsel was deficient in failing to object to the solicitor's question or moving for a mistrial or curative instruction?ECF No. 25-7. The Supreme Court of South Carolina transferred the case to the Court of Appeals. ECF No. 25-8. Petitioner filed two pro se briefs on his behalf. ECF Nos. 25-9, 25-10. The Court of Appeals denied certiorari on November 17, 2020. ECF No. 25-11. Petitioner sought certiorari review of the Court of Appeals' decision, and the South Carolina Supreme Court denied his petition as impermissible on December 4, 2020. ECF No. 25-12. The Court of Appeals issued the remittitur on April 27, 2021. ECF No. 25-13.
II. STANDARDS OF REVIEW
A. Summary Judgment Standard
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, 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, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Id. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). However, the requirement of liberal construction does not mean the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
B. Federal Habeas Review under 28 U.S.C. § 2254
Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). ECF No. 1. Therefore, in considering Petitioner's claims, the Court's review is limited by the deferential standard of review set forth in 28 U.S.C. § 2254(d). See Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under § 2254(d):
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 with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim-
(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 State court proceeding.28 U.S.C. § 2254(d); see also Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (explaining federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, ” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding”).
A state court's decision is contrary to clearly established federal law if that court “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Evans, 220 F.3d at 312 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). A state court decision unreasonably applies clearly established federal law if the state court “identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. (quoting Williams, 529 U.S. at 413).
Because “review under § 2254(d)(1) focuses on what a state court knew and did, ” this Court measures the reasonableness of the state court's decision based on the information in the record before the state court. Valentino v. Clarke, 972 F.3d 560, 575 (4th Cir. 2020) (quoting Cullen v. Pinholster, 563 U.S. 170, 182 (2011)). “Likewise, § 2254(d)(2) provides for a limited review of factual determinations in light of the evidence presented in the State court proceeding[;] [thus, ] [t]his backward-looking language similarly requires an examination of the state-court decision at the time it was made.” Id. (citation and internal quotation marks omitted).
Accordingly, “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. Further, factual findings “made by a State court shall be presumed to be correct, ” and Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
C. 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 default/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 a petitioner has appropriately exhausted available state-court remedies or after a petitioner has otherwise defaulted/bypassed seeking relief in the state courts will be dismissed absent unusual circumstances, as detailed below.
1. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies. See 28 U.S.C. § 2254(b)-(c). The statute requires that, before seeking habeas corpus relief, a petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). Stated plainly, in the interest of giving state courts the first opportunity to consider alleged constitutional errors in state proceedings, a § 2254 petitioner is required to “exhaust” all state remedies before a federal district court can entertain his claims. Thus, a federal habeas 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 S.C. Code Ann. § 1727-80, 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 generally result in the application of a procedural bar by the South Carolina Supreme Court. See Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009) (discussing procedural bar and noting the “general rule” in South Carolina is that where a party fails to file a Rule 59(e) motion, the argument is forfeited). Furthermore, strict time deadlines govern direct appeal and the filing of a PCR application in the South Carolina courts. A PCR application 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 South Carolina, 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. See Remedies in Criminal and Post-Conviction Relief Cases, 321 S.C. 563, 564, 471 S.E.2d 454 (S.C. 1990) (“[W]hen the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies.”).
2. Procedural Default/Bypass
When a federal habeas petitioner has failed to raise a claim at the appropriate time in state court and has no further means of bringing that issue before the state courts, the claim will be considered procedurally defaulted, and he will be procedurally barred from raising the issue in his federal habeas petition. Smith v. Murray, 477 U.S. 527, 533 (1986). This situation is sometimes referred to as procedural bypass, as the petitioner has “bypassed” his state remedies. In other words, procedural default/bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See id. Procedural default/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. See, e.g., Evans v. State, 611 S.E.2d 510, 515 (S.C. 2005) (noting an “issue or argument which is neither raised at PCR hearing nor ruled upon by the PCR court is procedurally barred from appellate review” (citation omitted)). Further, if a prisoner has failed to file a direct appeal or a PCR application 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:
[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). If a federal habeas petitioner has procedurally defaulted his opportunity for relief in the state courts, the exhaustion requirement is technically met and the rules of procedural bar apply. See Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), overruled on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011); Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). Thus, where the state court has not had the opportunity to apply its own procedural bar, the federal court will nevertheless bar the claim where application of the bar is clear. Teague v. Lane, 489 U.S. 288, 297-98 (1989).
3. Cause and Actual Prejudice
Notwithstanding the foregoing, a federal court may consider claims that have not been presented to the highest South Carolina court with jurisdiction in very limited circumstances. See Granberry v. Greer, 481 U.S. 129, 131 (1987). Indeed, because the requirement of exhaustion is not jurisdictional, this Court may consider claims that have not been presented to the state's 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 by “prov[ing] that failure to consider the claims will result in a fundamental miscarriage of justice.” Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008).
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. Murray v. Carrier, 477 U.S. 478, 488-97 (1986). 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, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error. 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. Id. at 496.
III. DISCUSSION
Petitioner raises the following grounds for relief in his Petition:
Ground One: 4th Amendment violation on the grounds of the “Fruits of the Poisonous Tree[”] Doctrine. The evidence against the Petitioner is illegally obtained by the cops involved and the prosecution. 14th Amendment violation as well.
Supporting Facts: 4th Amendment Violation. The facts are the evidence entered at trial. If the Petitioner was arrested on March 16, 2014. Then the evidence entered is for May 21, 2014, now th[ere] was no evidence found on the Petitioner in the month of March. The police report states no evidence was found and if you look at the video evidence of the search, no evidence was found. Under oath by the cop, there was no evidence.
Ground Two: 5th Amendment and 6th Amendment Rights were Violated Under Law.
Supporting Facts: Petitioner was arrested and no evidence was found on March 16, 2014. So the evidence that was obtained on May 21, 2014 has put his protected rights in danger. Doing the search looking at video tapes, there was no evidence by the cops. But the evidence of May 21, 2014, is proof of the Petitioner's claim two months after the alleged crime that has been committed by the courts depriving him of his rights. Plus the prior times to establish something out of nothing.
Ground Three: 8th Amendment Violation by the Courts. Cruel and Unusual Punishment.
Supporting Facts: The judge erred by giving the Petitioner 6 yrs suspended to 45 months and 5 yrs probation. This is uncontitution[al]. Once the judge capped off the 6 yrs. You can't go over the 6 yrs. Now if you add up 45 months and 5 yrs, that's a total of 9 yrs in violation of the 8th Amendment. A suspended sentence is a violation of the constitution and cruel punishment.
Ground Four: Brady Violation by the prosecutor, police officer and the
Public Defender. Knowingly withheld evidence to prove Petitioner's innocen[ce]. Newly Discovered Evidence.
Supporting Facts: The jury requested to see the evidence police report for March 16, 2014. But when the judge asked the prosecutor for the paper working, he stated that he did not have it. Now second, the judge asked the Public Defender for the newly discovered evidence that he knew about, but he failed to hand it over but talked about it to the accuser and cop, making him ineffective assistance of counsel by not turning over the evidence.ECF No. 1 at 6-8.
Respondent asserts Grounds One and Two are procedurally barred and Grounds Three and Four are preserved for review. ECF No. 25 at 1.
A. Ground One
In Ground One, Petitioner alleges violations of his Fourth Amendment rights because the police did not have probable cause to arrest him and, because his arrest was illegal, any evidence resulting from the arrest was inadmissible. ECF Nos. 1 at 6, 1-1 at 1. Respondent argues Ground One is barred from federal review by the Stone doctrine and is procedurally defaulted. ECF No. 25 at 1, 21.
Under the Stone doctrine, a federal court will not grant habeas relief based on a Fourth Amendment violation if the State provided an opportunity for full and fair litigation of the claim. See Stone v. Powell, 428 U.S. 465, 482 (1976). Here, Petitioner had the opportunity to raise his Fourth Amendment claim to the trial court and on direct appeal but failed to do so. Rather, Petitioner improperly raised this claim for the first time in his PCR application, see ECF No. 25-1 at 272, and, to avoid dismissal of the claim in its entirety, amended it to allege ineffective assistance of trial counsel for failing to challenge the probable cause underlying his arrest, see ECF No. 251 at 287. Accordingly, Petitioner's freestanding Fourth Amendment claim is both procedurally defaulted and barred by the Stone doctrine, and the Court recommends grating Respondent's Motion for Summary Judgment as to Ground One.
B. Ground Two
In Ground Two, Petitioner alleges (1) a challenge to the evidence supporting his conviction, (2) he was not given a Miranda warning, (3) a Batson violation, and (4) ineffective assistance of trial counsel for failing to call a witness. ECF Nos. 1 at 7, 1-1 at 2-3. Petitioner contends these constitute violations of his Fifth and Sixth Amendment rights. Id.
Miranda v. Arizona, 384 U.S. 436 (1966) (holding statements obtained from defendants during incommunicado interrogation in police-dominated atmosphere without full warning of constitutional rights inadmissible).
Batson v. Kentucky, 476 U.S. 79 (1986) (holding Equal Protection Clause forbids prosecutor from challenging potential jurors solely on account of their race).
1. Insufficient Evidence
Petitioner alleges he “was arrested and no evidence was found on March 16, 2014, ” the police did not find any evidence “[d]oing the search looking at video tapes, ” and “the evidence of May 21, 2014, is proof of the Petitioner's claim two months after the alleged crime.” ECF No. 1 at 7. Respondent asserts Petitioner's evidentiary challenge is a state evidentiary matter, procedurally defaulted, a reiteration of his argument in Ground One, and is not a cognizable ground for habeas relief. ECF No. 25 at 1, 21-22.
Petitioner is referring to a receipt dated May 21, 2014 showing the items the loss prevention officer alleged Petitioner attempted to steal. The arresting officer, Officer Smith, testified that, as part of his investigation, he returned to Belk on May 21, 2014 to obtain a copy of the receipt and surveillance video. ECF No. 25-1 at 176.
To the extent Petitioner re-alleges his Fourth Amendment claim from Ground One, the Court has already addressed that claim and incorporates its analysis above. To the extent Petitioner is alleging his conviction was not supported by substantial evidence, other than trial counsel's motions for directed verdict and the trial court's denial of those motions, see ECF No. 25-1 at 19192, 220, this claim was not specifically or properly presented to the state courts and is, thus, procedurally defaulted.
2. Miranda
Regarding his Miranda rights, Petitioner asserts:
Looking at the video evidence tapes you would clearly see that the cop[] never pulled out his Miranda card. He stated that the petitioner was sitting down in a chair holding on not letting go. But if the petitioner walk to the back with handcuffs on then the police officer has lied on his police report and under oath.ECF No. 1-1 at 2. Respondent contends this claim is not cognizable as presented and is procedurally defaulted. ECF No. 25 at 22.
Prior to trial, the court conducted a Jackson v. Denno hearing, wherein the arresting officer testified that he read Petitioner his Miranda rights from a card he kept in his pocket while he and Petitioner were outside the Belk loss prevention office. See ECF No. 25-1 at 44-47. The arresting officer, Officer Smith, testified that Petitioner was being detained at the time based on the information he had received from Belk's loss prevention officer while he and two other officers further investigated the shoplifting allegation. Id. at 47-48. Officer Smith offered similar testimony during the trial and stated Petitioner grabbed onto the chair he was sitting in and would not get up after being informed he was under arrest. Id. at 163-65. In closing arguments, trial counsel questioned the truthfulness of Officer Smith's testimony and the reason he apparently did not have an audio or video recording of his entire interaction with Petitioner. Id. at 231-32.
Officer Smith further testified regarding the techniques he and two other officers employed to effectuate Petitioner's arrest, including using a taser twice. ECF No. 25-1 at 165-68. In his motion to reverse and vacate, Petitioner alleges the police manufactured evidence after-the-fact to cover up their use of excessive force and lack of probable cause for his arrest. ECF No. 29 at 4-5. Petitioner has not otherwise raised a claim of excessive force in this action or the state court proceedings relevant to this action. Accordingly, the court takes no position on whether the arresting officers used excessive force.
Petitioner did not raise this issue on direct appeal but did discuss it briefly at the PCR evidentiary hearing. See id. at 306-07 (“If I'm already detained, how can you pull out a Miranda card in the back of the store when you look at the video, you never see him pull out a Miranda card. So . . . he lied.”), 315 (“[Trial counsel] should have stated, well, did you read the Miranda Rights then. He should have objected to that when they didn't, why would you issue Miranda Rights when he's lied under oath.”). However, the PCR court did not address the merits of this specific claim, and Petitioner did not file a Rule 59(e) motion to alter or amend the PCR court's order, so Petitioner's Miranda claim was not preserved for appellate review, either as a freestanding claim or as one of ineffective assistance of counsel and is now procedurally defaulted.
3. Batson
Regarding his Batson claim, Petitioner summarizes the Supreme Court's holding in Batson v. Kentucky, 476 U.S. 79 (1986), and asserts: “I'm African [and] the jury were all white people and not a jury of the petitioner's peers” and that the court sent home the one “black lady” without Petitioner's consent. ECF No. 1-1 at 3. Respondent contends this claim is procedurally defaulted as presented. ECF No. 25 at 23. The Court agrees. Petitioner did not raise this claim in his direct appeal, and he referenced Batson during the PCR evidentiary hearing, but only as related to his ineffective assistance of counsel claim. See ECF No. 25-1 at 310-12. To the extent Petitioner now asserts a freestanding Batson claim, it is procedurally defaulted.
Moreover, trial counsel did raise a Batson challenge and moved to set aside the jury selection based on the prosecution striking the only African American jurors. ECF No. 25-1 at 36. The prosecutor offered race-neutral explanations-each juror had a prior arrest or conviction for a crime of dishonesty. Id. at 37-38.
4. Ineffective Assistance of Counsel
In Ground Two, Petitioner also alleges his trial counsel “was ineffective assistance of counsel. By not calling the petitioners counsel when there was witness that seen what the corrupted cops were doing wrong.” ECF No. 1-1 at 2-3. Respondent does not specifically address Petitioner's ineffective assistance of counsel allegation but states: “[Respondent] interprets the reference to the 5th and 6th Amendments to correlate to the other allegations set forth under Ground Two. To the extent additional arguments were intended but unsupported, Respondent denies the same as lacking merit within the record.” ECF No. 25 at 25 n.3.
The Court liberally construes Petitioner's claim to allege ineffective assistance of trial counsel for failing to call a witness. At the PCR evidentiary hearing, Petitioner testified about a man named Carl Gaskins whom Petitioner knew personally and was present in the store when Petitioner was arrested. ECF No. 25-1 at 296-97. Trial counsel testified Petitioner told him Mr. Gaskins was a family friend whom he spotted just before exiting the store. ECF No. 25-2 at 2122. Petitioner's story at trial was that he saw Mr. Gaskins as he was about to leave the store and that is why he turned around abruptly at the exit doors-not because he was running from the police. Id. Trial counsel testified he recognized this witness could corroborate Petitioner's story and that identifying him was important, but neither counsel nor Petitioner could not locate him. Id. Trial counsel stated Petitioner was only able to provide a name, an old address, and the telephone number for somebody who knew Mr. Gaskins at some point and trial counsel was unable to find him using the Public Defenders Office's resources. Id.
The PCR court found Petitioner's testimony not credible and trial counsel's credible and persuasive. ECF No. 25-2 at 45. The court did not specifically address the merits of this claim but did summarize Petitioner's testimony regarding trial counsel's failure to fully investigate and trial counsel's testimony about his attempts to locate Carl Gaskins. Id. at 40, 42-43. The PCR court then applied Strickland v. Washington, 466 U.S. 668 (1984), and found:
Applicant has asserted several allegations of ineffective assistance of counsel. This Court finds these claims to be meritless and they should be denied and dismissed with prejudice. After considering the testimony, judging the credibility of the witnesses, and reviewing the materials presented to the court, this Court finds Applicant has failed to meet his burden of proof.Id at 44-45.
Under Strickland, 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, 466 U.S. at 687-96. A court's evaluation under this standard must be “highly deferential, ” so as to not “second-guess” counsel's 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). To show prejudice, “[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.” Id. at 694. A “reasonable probability” is “a probability sufficient to undermine confidence in the outcome.” Id.
Petitioner has not alleged what more trial counsel could or should have done to locate Mr. Gaskins. In fact, Petitioner himself was unable to locate Mr. Gaskins despite having a personal connection to him. Nor has Petitioner obtained an affidavit from Mr. Gaskins, proffered testimony, or otherwise produced evidence that Mr. Gaskins' trial testimony would have benefited Petitioner's defense and, thus, has failed to show any resulting prejudice from trial counsel's allegedly deficient conduct. See Strickland, 466 at 693; Beaver v. Thompson, 93 F.3d 1186, 1195 (4th Cir. 1996) (“[A]n allegation of inadequate investigation does not warrant habeas relief absent a proffer of what favorable evidence or testimony would have been produced.”); Bassette v. Thompson, 915 F.2d 932, 941 (4th Cir. 1990) (finding appellant could not establish that counsel was ineffective for failing to call certain witnesses without advising the court of what an adequate investigation would have revealed or what testimony the witness might have provided).
Accordingly, Petitioner's claims in Ground Two are either procedurally defaulted or without merit, and the Court recommends granting summary judgment as to these allegations.
C. Ground Three
In Ground Three, Petitioner alleges his sentence violates the Eighth Amendment's ban on cruel and unusual punishment. ECF Nos. 1 at 7, 1-1 at 3. Respondent asserts this claim is preserved for review but that the PCR court's denial was not unreasonable. ECF No. 25 at 29-30.
At the evidentiary hearing, Petitioner testified:
I received a 6 year suspended to 45 months and 5 years probation. But here's the problem with the sentencing. It's in error because you cap something off at 6 and you do 45 months, that's almost four years. And you give me 5 years probation, you had already done - - that's . . . 9 years.ECF No. 25-1 at 292. As part of its discussion of Petitioner's ineffective assistance of counsel claims, the PCR court found that
the sentence imposed by the trial court was reasonable under the circumstances o[f] this case, and Applicant has failed to prove that the trial court abused his discretion or used any improper factors to enhance Applicant's sentence.ECF No. 25-2 at 49. The PCR court also noted that “[a]lthough [the trial court] could have sentenced Applicant to ten years' imprisonment, the sentence he imposed required Applicant to serve only 45 months in prison, with a five year term of probation.” Id. at 51.
Petitioner now argues it was unconstitutional for the trial court to impose a sentence in excess of six years and that suspended sentences are unconstitutional. ECF No. 1 at 7. As a matter of state law, Petitioner's three prior shoplifting convictions subjected him to a potential 10-year sentence. See S.C. Code Ann. §§ 16-13-110 (defining shoplifting), 16-1-57 (“A person convicted of [shoplifting] must, upon conviction for a third or subsequent offense, be punished as prescribed for a Class E felony.”), 16-1-20(A)(5) (stating a person convicted of a Class E felony “must be imprisoned” for “not more than ten years”). Petitioner has not presented any well-established federal law suggesting his statutorily permissible sentence was cruel and unusual and the court is unaware of any such law. In fact, the United States Supreme Court has upheld much harsher sentences for property crimes. See Ewing v. California, 538 U.S. 11, 26 (2003) (affirming sentence of 25 years to life for theft of three golf clubs based on state's three-strike law and noting “[s]electing the sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts”). Thus, Petitioner fails to show the PCR court unreasonably applied federal law or based its decision on an unreasonable determination of the facts, and the Court recommends granting summary judgment as to Ground Three.
D. Ground Four
In Ground Four, Petitioner asserts the prosecutor, police, and trial counsel knowingly withheld evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). ECF Nos. 1 at 8, 1-1 at 3-4. Respondent admits this ground is preserved for review and asserts the PCR court's denial is not unreasonable. ECF No. 25 at 31.
In Brady, the Supreme Court held “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.” 373 U.S. at 87. Reversal for a Brady violation is required “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419, 433-34 (1995). The question is not whether the defendant would more likely than not have received a different verdict with the concealed evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. United States v. Bagley, 473 U.S. 667, 678 (1985).
At trial, Officer Smith testified that while he was transporting Petitioner to the detention center, Petitioner said that “[c]ould have would have thought about it” was not the same as shoplifting. ECF No. 25-1 at 169. On cross-examination, Officer Smith referenced a supplemental report indicating he returned to Belk on May 21, 2014 to obtain a copy of the surveillance video and the itemized receipt. Id. at 176-77. His report also allegedly requested that a copy of Officer Smith's in-car video be added to evidence, but that the video was never produced. Id. at 177. Trial counsel noted that without the video, there was no evidence supporting Petitioner's alleged statement on the way to the detention center. Id. at 177. During its deliberations, the jury asked if Officer Smith's supplemental report was entered into evidence and the court told them it was not and that the jurors were to base their decision on the evidence in the record. Id. at 256-57.
Petitioner alleged in his PCR proceedings that the failure to produce Officer Smith's supplemental report and in-car video prior to trial violated Brady. See ECF No. 25-1 at 297-98, 302-03, 305-07. Trial counsel testified he inherited Petitioner's case from another attorney and when he realized his file did not include a copy of the store surveillance video, he requested a copy from the solicitor and received it promptly. ECF No. 25-2 at 6. Specifically regarding Brady material, trial counsel stated he did not have the supplemental report or in-car video but that he did not know if either of those things were ever dropped into evidence and that they were not introduced at trial. Id. at 19-20. The prosecutor, Jay Slocum, testified he turned over all Rule 5 discovery and Brady materials to the defense and that, to his knowledge, trial counsel had everything the prosecution had. Id. at 32-33. Neither the supplemental report nor the in-car video were introduced at the PCR hearing or otherwise made part of the state court record. See id. at 35-36.
In considering this claim, the PCR court applied Brady and found:
This allegation is meritless.
...
This Court finds Applicant has failed to prove the existence of any Brady materials that were not turned over to the defense in Applicant's case. The testimony presented and the record before the court show Solicitor Slocum delivered all Rule 5 and Brady material to Trial Counsel and Applicant before the trial and did not withhold any exculpatory information he was required to provide. Accordingly, this allegation is denied and dismissed with prejudice.Id. at 53.
Petitioner fails to show any error by the PCR court. Brady requires the accused to demonstrate the materiality of the evidence and that the prosecution had the evidence in their possession or knew of it. Based on the record before it, the PCR court reasonably found Petitioner failed to satisfy these key Brady requirements. Nothing in the record suggests the supplemental police report or in-car video would have aided Petitioner's defense. Further, trial counsel was able to use the lack of evidence to impeach Officer's Smith's testimony at trial. And trial counsel and the solicitor credibly testified at the PCR hearing that all Rule 5 discovery and Brady material was shared with the defense. To the extent the PCR court relied on its credibility findings, Petitioner has failed to show any reason this court should question those determinations. See Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (noting, absent “stark and clear” error, federal habeas courts cannot overturn a state court's credibility determination, and have no license to redetermine credibility of witnesses whose demeanor has been observed by the state court). Accordingly, the Court recommends granting summary judgment as to Ground Four.
E. Petitioner's Motion to Reverse and Vacate
Petitioner's Motion to Reverse and Vacate appears to assert the same arguments as the Petition. See ECF No. 29 at 2-5 (alleging false arrest based on a lack of evidence or illegally obtained evidence and that evidence was improperly admitted at trial). Whether Petitioner's motion was intended as a response to Respondent's Motion for Summary Judgment or as a separate motion, the Court has addressed Petitioner's arguments above and found them without merit or that they are not properly before the Court. The Court recommends denying Petitioner's Motion to Reverse and Vacate for the same reasons.
F. Respondent's Motion to Strike
Along with his Motion to Reverse and Vacate, Petitioner provided two discs purportedly containing video evidence. Respondent moves to strike these materials. ECF No. 33.
“[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181-84 (2011). Expansion of the state record is sometimes permitted if the petitioner can show his claim relies on (1) “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” or (2) “a factual predicate that could not have been previously discovered through the exercise of due diligence.” § 2254(e)(2).
Petitioner has not responded to Respondent's Motion to Strike and has not argued elsewhere in his briefing that any of his claims rely on a new constitutional rule or factual predicate. Accordingly, the Court GRANTS Respondent's Motion to Strike, ECF No. 33, and limits its review to the record before the state courts.
IV. CONCLUSION
For the reasons set forth above, Respondent's Motion to Strike (ECF No. 33) is GRANTED.
Further, it is RECOMMENDED that Respondent's Motion for Summary Judgment (ECF No. 26) be GRANTED, Petitioner's Motion to Reverse and Vacate (ECF No. 29) be DENIED, and the Petition be DISMISSED with prejudice.
The parties are directed to the next page for their rights to file objections to this 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
Post Office Box 835
Charleston, South Carolina 29402
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).