Opinion
C/A 1:21-241-MGL-SVH
10-11-2021
Malcolm Brabham, #359777, Petitioner, v. Warden of Broad River Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges, United States Magistrate Judge
Malcolm Brabham (“Petitioner”) is an inmate at the Broad River Correctional Institution of the South Carolina Department of Corrections (“SCDC”) who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) 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 filed on April 22, 2021. [ECF Nos. 15, 16]. 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. [ECF No. 17]. Receiving no response, on May 27, 2021, the court directed to Petitioner to indicate whether he wished to continue the case by June 10, 2021. [ECF No. 19]. Petitioner filed a response to the motion on June 16, 2021. [ECF No. 23].
Having received no timely response, the undersigned filed a report and recommendation on June 14, 2021, recommending the case be dismissed for Petitioner's failure to prosecute. [ECF No. 21]. That report and recommendation was vacated following the court's receipt of Petitioner's response. [ECF No. 26].
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted.
I. Factual and Procedural Background
In September 2013, Petitioner was indicted by the Beaufort County grand jury for attempted murder (2013-GS-07-1230) and for possession of a weapon during the commission of a violent crime (2013-GS-07-1231). [ECF No. 15-1 at 480-85].
After a pretrial hearing to address the voluntariness of Petitioner's post-arrest statement and the admissibility of some lay witness testimony, Petitioner proceeded to a jury trial April 21-23, 2014, with South Carolina Circuit Court Judge Roger M. Young presiding. Id. at 3-52. Assistant Solicitors Mary Jordan Lempesis and Mary Concannon Jones prosecuted the case. Id. at 52. Trasi Campbell, the Chief Public Defender for Beaufort County, represented Petitioner on the charges. Id.
At trial, the State presented evidence, including the victim's testimony, that the victim, Chadwick Mitchell (“Mitchell”), left a party as a passenger in Petitioner's car. They got in an argument. Mitchell had Petitioner pull the car over so that Mitchell could exit. Petitioner also got out of the car, then proceeded to pull a gun and shoot Mitchell. Petitioner left Mitchell in the roadway, but Mitchell stumbled to a nearby dinner party where the patrons rendered aid. Police were dispatched around 9:15 p.m. and arrived on the scene around 9:23 p.m. Id. at 136. Mitchell recovered after receiving treatment.
Relevant to the resolution of Respondent's motion, the following two events occurred during the trial, one concerning the submission of a question by a juror and one concerning the testimony of Rhea Gonsalves (“Gonsalves”).
First, during the State's presentation of evidence, Juror 52 submitted a question to the court and the following interaction occurred between Juror 52 and the court:
The Court: [Name redacted], I got your message. Let me make sure I'm reading this right and I understand it. The message says:
The time line is a little fuzzy, with references to quote, unquote, ‘after dark.' It would be helpful to know what time sunset was on the date in question.
And that's your signature, right?
Juror 52: That's me.
The Court: Okay. Help me understand how you all came up with this question?
Juror 52: All right. We heard from a number of different witnesses [referencing specific times and then events occurring after dark] But there's period of time where a gentleman said, I was taking cocaine . . . over a period of two hours . . . How does that two hours fit within all of those other times? That's-that was my question.
The Court: Okay. So, the question you've come up with and asked here, is this something that you all came up with back there, or is it just your question?
Juror 52: It is my question.
The Court: Have you discussed this issue with anybody back there?
Juror 52: Other people have heard me as I talked about that question, yes.Id. at 220-21. Discussing the issue solely with counsel, the trial judge determined he would not allow any witness to be recalled to address the timeline issue, found no prejudice to the Petitioner, and denied his motion for a mistrial. Id. at 225.
Thereafter, the trial judge stated as follows to the entire jury:
I want to address the matter of the witness-the juror question. We don't, generally speaking, encourage juror questions during the course of a trial. If you do want to submit one, do it as [Juror 52] did. Write it down. Give it to the bailiff. They'll bring it to my attention, and then, I have to bring the attorneys in and ask them how they want to respond, et cetera. We try to cover things the best we can, but one of the big problems is, is that it suggests that you may be deliberating the case before you've heard all of the evidence. And so, it's necessary for me to ask if there, in fact, did anybody talk[] about this case during the lunch break or deliberate with each other.Id. at 229-30. The trial judge asked the three jurors who stated they overheard Juror 52 ask the bailiff a question, whether overhearing the question “affect[s] your thoughts on the trial thus far” or “affect[s] your deliberations in any way, ” to which each juror responded no. Id. at 230-31.
Sometime thereafter, the State called Gonsalves as a witness. She testified she saw Petitioner from “9:48, 9:50ish” until 10:00 or 10:15 p.m. on the incident night. Id. at 237, 241. As elicited by Petitioner's attorney on cross-examination, this testimony was inconsistent with the timeline Gonsalves allegedly told to a responding officer, that Petitioner was at her house 45 minutes prior to the officer's arrival at 10:00 or 10:05 p.m. Id. at 247-48, see also Id. at 194. More specifically, the following exchange occurred on cross-examination:
Q: And do you recall telling that officer that: Yes, Malcom had been here at the house with me and the kids this evening, and then he left from our home about 45 minutes ago.
A: Um-hmm.
Q: And so, you are telling this jury that you do recall that, back then, before you met with the prosecutor to talk about your testimony today, you're telling the officer Malcolm's at your all's home about 9:15, correct?
A: No, I didn't say 9:15. I didn't give him any times. I said about 30 to 40 minutes. Id. at 247.
During closing arguments, Petitioner's attorney stated as follows regarding the relevant timeline:
We know that Chadwick Mitchell was at River Drive at 9:15 p.m., on 7-15-2013, with a gunshot wound to the chest. We know that. We know the 911 call came in. 9:19 was the dispatch time for EMS and BCSO . . . . We know that BCS officer Hovest went to Malcolm's home at 10:00 o'clock, right around 10:00 o'clock, on that night and talked to Reah . . . . He puts in his report what happened, I talked to her. Yes, Malcolm was home, He was here. He was with me and the children. He left our home about 45 minutes ago, which makes it about 9:15. Can't be two places at one time.Id. at 335-36.
Following the conclusion of the trial, jury found Petitioner guilty of each charge. Id. at 365. Judge Young sentenced Petitioner to concurrent terms of twenty years for attempted murder and five years for possession of a weapon during the commission of a violent crime. Id. at 377.
Through counsel, Petitioner served a notice of direct appeal. Pursuant to Anders v. California, 386 U.S. 738 (1967), appellate counsel Susan Hackett, Esq., with the South Carolina Commission on Indigent Defense perfected the brief. Counsel raised the following issue for consideration by the South Carolina Court of Appeals:
Did the trial judge err in failing to declare a mistrial when the jury sent a note during the presentation of the state's case indicating the jurors had engaged in premature deliberations by discussing the evidence presented as the note evinced a lack of clarity regarding the timeline of events?Id. at 379-98.
The South Carolina Court of Appeals dismissed Petitioner's appeal in an unpublished opinion filed October 21, 2015. State v. Brabham, Op. No. 2015-UP-498 (S.C. Ct. App. 2015). Id. at 399-401. The Court of Appeals issued the remittitur on November 6, 2015. Id. at 401.
On May 6, 2016, Petitioner filed an application for post-conviction relief (“PCR”), id. at 402, alleging ineffective assistance of trial counsel, citing the following claim of Sixth Amendment error:
. . . Shortly after the Applicant's arrival into the South Carolina Department of Corrections, Applicant learned that he could obtain his discovery materials. He wrote his trial counsel requesting a copy of his discovery. Thereafter, having received the discovery materials the Applicant discovered that a favorable formal written plea offer of ten (10) years had been offered to him by the State, a plea that Applicant would have taken had trial counsel discussed the State's plea offer. . . .Id. at 406.
The State submitted a return to the PCR application on August 3, 2017. Id. at 417-20. Through appointed PCR counsel James Falk, Esq., Petitioner amended his PCR application to include the following three additional ineffective-assistance-of-counsel claims:
1. Trial counsel failed to object to hearsay statements regarding conversations that the State's witnesses had with the victim;
2. Trial counsel failed to object when State sought to elicit negative testimony regarding the Defendant's character;
3. Trial counsel failed to request a jury charge on alibi even though she argued that defense in her closing argument.Id. at 421.
Petitioner's evidentiary hearing (“PCR hearing”) convened on January 29, 2018, before the Honorable R. Lawton McIntosh, Circuit Court Judge. Id. at 424. Petitioner and his trial counsel testified at the hearing. Id. at 426. The next day, Judge McIntosh issued a Form 4 Order denying Petitioner's PCR application on three specific grounds and directing Respondent to prepare and submit a formal written order for his consideration. [ECF No. 15-2]. Judge McIntosh denied Petitioner's PCR application in a formal written order filed April 13, 2018. [ECF No. 15-1 at 470-79].
Petitioner filed a timely notice of PCR appeal perfected by PCR appellate counsel Jennifer E. Roberts, Esq., with the South Carolina Commission on Indigent Defense. Counsel filed a petition for a writ of certiorari on the following issue:
Did trial counsel provide ineffective assistance by inexplicably failing to request an alibi jury charge when trial counsel elicited testimony from witness Reah Gonsalves that indicated Petitioner was at home during the time of the crime and argued in closing that he could not be two places at once?[ECF No. 15-3].
Through the Attorney General's Office, the State filed a return to the petition for a writ of certiorari. [ECF No. 15-4]. The Supreme Court of South Carolina thereafter transferred the case to the South Carolina Court of Appeals pursuant to SCACR 243(1).
The Court of Appeals denied certiorari in an order filed June 15, 2020. [ECF No. 15-5]. The remittitur issued on July 13, 2020, and Beaufort County filed it July 15, 2020. [ECF No. 15-6].
II. Discussion
A. Federal Habeas Issues
Petitioner asserts he is entitled to a writ of habeas corpus on the following grounds:
Ground One: Ineffective assistance of trial counsel (Failure to communicate a favorable written plea offer)
Supporting Facts: Applicant's trial counsel received a written 10 yr. plea offer from the State, but never relayed the offer to the Applicant. During PCR hearings trial counsel testified that it was done in error, despite the fact that she addressed the 10 yr. A&B 1st plea offer during the sentencing (trial transcript pg. 324/line 15-16). Applicant was unaware of the A&B 1st offer until it arrived in his discovery materials that were requested after arrival in S.C.D.C. This was a constitutional violation . . .
Ground Two:Ineffective assistance of counsel (Failure to object to hearsay testimony)
Supporting Facts: Applicant's trial counsel failed to object to improper hearsay elicited from the State's witness corporal Seronka. The PCR Court found that the Applicant was correct that the testimony constitutes improper hearsay, but erred in not granting relief on findings that the victim testified to the exact testimony prior to Seronka actually testifying. This was a constitutional violation. Public record shows that the victim didn't testify until after Seronka.
Ground Three: Ineffective assistance of counsel (Failure to request an alibi charge)
Supporting Facts: Applicant's trial counsel failed to request an alibi jury charge when she elicited testimony from witness Reah Gonsalves that Applicant was at home during the time of the crime and argued in closing that he could not be in two places at one time. The PCR judge dismissed the allegation finding there was insufficient evidence presented at trial to warrant such a request, and had one been requested it would have been denied. This was a constitutional violation and an error of law. Applicant filed a writ of certiorari in the South Carolina Supreme Court that was later denied.
Ground Four: Premature Deliberation
Supporting Facts: During the State's case-in-chief, the jury sent a note to the trial judge remarking that the timeline was a little fuzzy. The trial judge later asked the jury did anybody overhear (Juror 52) ask the Bailiff the question, and Juror 354 [redacted name] stated that she was wondering the same thing. Juror 337 [redacted name] said yes I did hear the question myself too. Juror 257 [redacted name] state um-hmm when asked the question. The trial judge erred in failing to declare a mistrial when the jury sent the note indicating that they had engaged in premature deliberations by discussing the evidence.[See ECF No. 9-1 at 5-10]. Petitioner has asked this Court to “[r]everse and remand the lower court's decision and order a new trial in this case or uphold the offer of the plea agreement.” Id. at 15.
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.
The moving party has the burden of proving 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 Fed.R.Civ.P. 56(c), set forth specific facts showing there is a genuine dispute for trial.
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 of 1996 (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Noland v. French, 134 F.3d 208, 213 (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 in 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) (internal citations 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).
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'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 v. Thompson, 501 U.S. 722, 750 (1991), 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.), cert. denied, 555 U.S. 868 (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. 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.
4. Ineffective Assistance of Counsel Claims
To prevail on his ineffective assistance of counsel claims, Petitioner must show (1) that his trial counsel's performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that but for counsel's error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). The court must apply a “strong presumption” that trial counsel's representation fell within the “wide range of reasonable professional assistance, ” and the errors must be “so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Harrington v. Richter, 562 U.S. 86, 104 (2011). This is a high standard that requires a habeas petitioner to show that counsel's errors deprived him “of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. That the outcome would “reasonably likely” have been different but for counsel's error is not dispositive of the prejudice inquiry. Rather, the court must determine whether the result of the proceeding was fundamentally unfair or unreliable. Harrington, 562 U.S. at 104; Strickland, 466 U.S. at 694.
The United States Supreme Court has cautioned that “‘[s]urmounting Strickland's high bar is never an easy task[, ]' . . . [e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult.” Harrington, 562 U.S. at 88 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). When evaluating an ineffective assistance of counsel claim, the petitioner must satisfy the highly deferential standards of 28 U.S.C. § 2254(d) and Strickland “in tandem, ” making the standard “doubly” more difficult. Harrington, 562 U.S. at 105. In such circumstances, the “question is not whether counsel's actions were reasonable, ” but whether “there is any reasonable argument that counsel satisfied Strickland's deferential standards.” Id. The unreasonableness of the state court determination must be “beyond any possibility of fairminded disagreement.” Id. at 103. “If this standard is difficult to meet, that is because it was meant to be.” Id. at 102. Section 2254(d) codifies the view that habeas corpus is a “‘guard against extreme malfunctions in the state criminal justice system,' not a substitute for ordinary error correction through appeal.” Id. at 102-103 (citing Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).
D. Analysis
1. Statute of Limitations
Under the AEDPA, a § 2254 petition must be filed within one year of the date on which the state court judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). The limitations period is tolled during the pendency of a properly-filed state post-conviction action. § 2244(d)(2).
The Court of Appeals denied Petitioner's direct appeal on October 21, 2015, and the statute of limitations began to run when Petitioner's convictions and sentence became final, fifteen days after the Court of Appeal issued its opinion, November 5, 2015. See SCACR 221(b) (remittitur to issue fifteen days after final order finally disposing of appeal). Petitioner filed his state-court PCR application 183 days later on May 6, 2016. Time therefore tolled during the pendency of this initial collateral action, which concluded on July 15, 2020, when Beaufort County filed the PCR appeal remittitur. Lyles v. Reynolds, C/A No. 6:15-04229-RMG, 2016 WL 4940319, at *3 (D.S.C. Sept. 14, 2016) (citing Beatty v. Rawski, 97 F.Supp.3d 768, 772-76 (D.S.C. 2015), appeal dismissed, 633 Fed.Appx. 832 (4th Cir. 2016) (adopting reasoning that South Carolina's highest courts have uniformly held disposition of a PCR appeal is not final until remittitur is filed in the Circuit Court)).
From that point on, the time to file for habeas relief lapsed without pause until the filing of the instant petition. The petition is considered filed on the date stamped received by prison mailroom authorities. Houston v. Lack, 487 U.S. 266 (1988). Petitioner submitted his habeas petition to the prison mailroom on January 22, 2021, 191 days after the filing of the PCR appeal remittitur. [ECF 9-1 at 23]. Accordingly, Petitioner filed after the passage of a total of 374 days. Therefore, this petition was not timely filed within the one-year or 365-day statute of limitations.
Courts may equitably toll the statute of limitations when a petitioner demonstrates “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted). In the Fourth Circuit, equitable tolling is only appropriate in those “rare instances where-due to circumstances external to the party's own conduct-it would be unconscionable to enforce the limitation period against the party and gross injustice would result.” Rouse v. Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc) (quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (internal quotation marks omitted)). Petitioner, in response to Respondent's argument that his claims are barred by the statute of limitations, argues as follows:
The party seeking summary judgment contends that the petitioner be dismissed because it was not timely filed and that my deadline was missed by nine days. I'm fully aware of the one-year deadline that I had to submit my habeas petition, but as we are all aware of, a global, not just nationwide pandemic has had everyone on extensive lockdown, including SCDC. The Petitioner failed to take into consideration that these lockdowns not only affected the prisons but the courts as well as the United States Postal Services. These are not mere excuses, but are actual events/specific circumstances that were impossible to predict . . . . I didn't receive the remittitur and order along with my habeas application for weeks after it arrived at the institution. This is documented in mailroom records . . . . The party seeking summary judgment argues that insufficient library access, lack of access to copies and legal materials, prison conditions or lockdowns are not normally grounds for equitable tolling, but they make no argument for those things combined with the mandates and restrictions that come along with the Covid-19 pandemic as if they didn't exist. For those reasons, equitable tolling should apply.[ECF No. 23 at 1-2].
Respondent argues in response that Petitioner has failed to assert a particular time or restriction at any relevant time and notes that Petitioner, being incarcerated, did not have to rely on either the courts or the post office to timely file. See Houston, 487 U.S. at 270 (prisoner pleadings considered filed at time they are “delivered . . . to the prison authorities for forwarding to the clerk of the District Court”). Respondent notes that although Petitioner delivered his petitioner less than 10 days after the expiration of the statute, he had 191 days, or over 6 months, to submit his petition to the prison mailroom. [ECF No. 24 at 2-3].
Here, Petitioner has not demonstrated that he pursued his rights diligently or that some extraordinary circumstances stood in his way to prevent him from timely filing his federal habeas petition. As this court has addressed multiple times, general allegations of COVID-19 restrictions are insufficient to show that the application of equitable tolling is proper in the context of a habeas petition. See Ja'Marcus D. Foster, Petitioner, v. Warden, Allendale Corr. Inst., Respondent, C/A No. 4:21-783-BHH-TER, 2021 WL 3195914, at *2 (D.S.C. June 1, 2021), report and recommendation adopted, C/A No. 4:21-783-BHH, 2021 WL 3190388 (D.S.C. July 28, 2021); see also Cook v. Nelsen, C/A No. 0:20-173-MGL-PJG, 2020 WL 6136619, at *4 (D.S.C. Sept. 30, 2020), report and recommendation adopted, C/A No. 0:20-173-MGL-PJG, 2020 WL 6136157 (D.S.C. Oct. 19, 2020); United States v. Sumter, C/A No. 3:02-CR-00499-CMC, 2021 WL 3173176, at *7 (D.S.C. July 27, 2021).
Accordingly, it is recommended that the § 2254 petition be dismissed with prejudice because it is untimely under the one-year limitations provision of the AEDPA, 28 U.S.C. § 2244(d). Notwithstanding, out of an abundance of caution, the undersigned will address Respondent's additional arguments found in its motion for summary judgment, that Grounds One and Two are procedurally defaulted and Grounds Three and Four should be dismissed because the claims lack merit.
2. Procedural Bar
Respondent asserts and Petitioner agrees that his Grounds One and Two are procedurally barred. [See ECF No. 23 at 2]. Petitioner does not argue cause to excuse the default or otherwise address these grounds in his response to Respondent's motion for summary judgement. Accordingly, the undersigned finds Petitioner has abandoned Grounds One and Two. 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.”).
3. Merits Analysis of Ground Three
Petitioner alleges counsel did not request a jury instruction on alibi, even though Gonsalves testified Petitioner was at home at the time of the shooting. [ECF 9-1 at 8]. The PCR court considered this claim, applied the Strickland standard, and found:
Applicant alleged Trial Counsel failed to request an alibi charge. “[S]ince an alibi derives its potency as a defense from the fact that it involved the physical impossibility of the accused's guilt, a purported alibi which leaves it possible for the accused to be the guilty person is no alibi at all.” State v. Robbins, 275 S.C. 373, 377, 271 S.E.2d 319, 321 (1980). Further, an alibi which makes it only less likely the accused is the guilty party is no alibi. See Walker v. State, 397 S.C. 226, 723 S.E.2d 610 (Ct. App. 2012). “To establish an alibi defense and thus be entitled to an instruction of alibi, a defendant must present some evidence that he was at another place at the time of the crime and could not therefrom have committed the crime.” State v. Diamond, 280 S.C. 296, 297, 312 S.E.2d 550 (1984), quoting State v. Robbins, 275 S.C. 273, 271
S.E.2d 319 (1980). “A simple denial of one's presence at the scene does not constitute an alibi.” Id. Trial Counsel testified she did not request an alibi charge because Applicant did not have an alibi. She testified she tried to argue some[ ]things related to an alibi defense in closing but did not have any alibi testimony. This Court finds there was insufficient evidence presented at trial to warrant such a request or charge on alibi and had one been requested it would have been denied. Therefore, this Court finds Applicant has failed to prove the first prong of the Strickland test-that Counsel failed to render reasonably effective assistance under prevailing professional norms. Applicant failed to present compelling evidence that Counsel committed either errors or omissions in her representation of Applicant. This Court also finds Applicant has failed to prove the second prong of Strickland-that he was prejudiced by Counsel's performance. Applicant has failed to show the outcome of his trial would have been different had Trial Counsel requested an alibi charge. This Court concludes Applicant has not met his burden of proving Counsel failed to render reasonably effective assistance. This allegation is denied and dismissed.[ECF No. 15-1 at 476-77].
The record supports the PCR court's conclusion. The record establishes trial counsel was prepared to pursue an alibi defense but did not ask for the jury instruction at the close of the trial because her alibi witness testified Petitioner was not with her at the time in question, thereby changing her story and leaving no evidence in the record to support the instruction. See State v. Smith, 706 S.E.2d 12, 14 (S.C. 2011) (“If there is any evidence to warrant a jury instruction, a trial court must, upon request, give the instruction.”).
Petitioner testified at the PCR hearing that he “definitely talked about witnesses” with trial counsel, but that “none were ever called” at trial. [ECF No. 15-1 at 444]. He did not have a list of witness names to offer to the PCR court. Id.
Trial counsel, in contrast, testified that she “went through the whole, you know, where were you, who were you with, and tracked down as many links as [she and her investigator] could” to assist in Petitioner's defense. Id. at 458. Counsel testified that when she began working with Petitioner and preparing his case, she tried “to get some sort of time line for where he was during those [ ] hours” when the shooting took place. Id. at 455. There unfortunately remained “a lot of times that [were] unaccounted for.” Id. at 456.
Specifically as to alibi, she did not ask for the charge because there was no alibi: “There was no one that could testify, or did testify, that they were with him, or know, you know, about his location at the time that [the victim] was shot in the chest. I tried, you know, again, in closing, and argued some things like that, but we were not in a position to get a charge on it.” Id. at 452. She was hopeful that her argument to the jury would inject reasonable doubt as to the timeline and Petitioner's whereabouts, but she could not elicit any evidence to back that theory up. Id. at 452-53. “[W]ithout that evidence, there was no basis to request the alibi charge.” Id. at 453.
As to Gonsalves' testimony, trial counsel stated as follows:
Rhea originally gave what I consider to be evidence that could've put [Petitioner] somewhere else at the time [the victim] is making the accusation that [Petitioner] had shot him in the chest. But
when she testified at trial, she did not testify accordingly. She placed [Petitioner] with her about forty-five minutes after the shooting occurred. It was unfortunate that she changed her version, and I challenged her on that, on cross-examination, but she didn't budge. And so, her sworn testimony at trial was that he was not with her at the time that [the victim] had been shot in the chest, which was unfortunate for [Petitioner].Id. at 450. Counsel assessed that Gonsalves “contradicted herself, multiple times” at trial, id. at 452, and that “it was quite shocking that she testified differently than she had originally reported.” Id. at 459. At the end of the trial, counsel was “stuck with” the testimony given under oath at trial, and it did not support an alibi instruction. Id.
Turning to the evidence at trial, the dispatch call for the shooting came in around 9:15 p.m. Gonsalves testified on direct examination that Petitioner came back to her house around 9:48, 9:50 that night. The police showed up at her house looking for Petitioner shortly thereafter, around 10:00 or 10:15 p.m. On cross-examination, Gonsalves did not change the timeline she provided, that Petitioner came back to her house around 9:48 p.m., even when confronted with a prior inconsistent statement that she had informed officers Petitioner had been at her house 45 minutes prior to their arrival at 10:00 or 10:15 p.m., around the time of the dispatch call.
Based on the above, during trial, no witness testified with any certainty to Petitioner's whereabouts at the time when the victim reported he had been shot by Petitioner or, more importantly, immediately prior to that time when he had been shot. Accordingly, the transcript supports that Petitioner was not entitled to a jury charge on alibi.
The PCR court also noted that Petitioner failed to establish prejudice. This, too, is supported by the record. Despite not requesting a specific charge on alibi, trial counsel stated a person “[c]an't be in two places at one time, ” providing the jury with an overview of the information provided by Gonsalves in the officer's report stating Petitioner was with her at the time of the dispatch call. [ECF No. 15-1 at 335-36]. Therefore, the jury was on notice of the defense Petitioner sought to assert. Furthermore, trial counsel and the trial court both emphasized the State had the burden of proving Petitioner was guilty beyond a reasonable doubt. See Hope v. Cartledge, 857 F.3d 518, 523 (4th Cir. 2017) (finding no prejudice under Strickland where “alibi testimony was presented to the jury, both attorneys discussed the alibi testimony in their closing arguments, the trial court repeatedly charged the jury that the State had the burden to prove each element of the charged crimes beyond a reasonable doubt and that Hope is presumed innocent, and the crucial issue was credibility because the jury could have believed either the State's witnesses or Hope's witnesses, but not both.”).
Petitioner has failed to overcome “doubly” more difficult standard of 28 U.S.C. § 2254(d) and Strickland. Harrington, 562 U.S. at 105. Petitioner has not shown counsel was ineffective for failing to request an alibi jury instruction, and, accordingly, the undersigned recommends Ground Three be dismissed.
Petitioner disagrees, arguing that because Gonsalves offered “some” evidence consistent with an alibi, trial counsel should have asked for an alibi charge, where “Gonsalves testified that I was at home forty-five minutes prior to the officers arriving . . . at ten o'clock or ten fifteen.” [ECF No. 23 at 4]. First, as stated above, that is not what Gonsalves testified. Second, an “alibi must cover the entire time when his presence was required for accomplishment of the crime . . . thus making it impossible for him to have been at the scene of the crime.” State v. Baker, 769 S.E.2d 860, 865 (S.C. 2015). Because of Gonsalves' inconsistent testimony, the evidence did not show it was impossible that Petitioner could not have committed the crimes. Petitioner additionally notes he was prejudiced in that the jury sent a message to the court inquiring about the relevant timeline. [ECF No. 23 at 4]. However, the jury sent the message prior to Gonsalves' testimony, and the message did not concern her testimony.
4. Merits Analysis of Ground Four
On direct appeal, Petitioner argued the court erred when it did not grant a mistrial after one juror submitted a note, mid-trial, asking for clarification about a perceived gap in the State's evidentiary presentation. The trial court resolved the matter by individually questioning that juror, as well as the panel, whether the jurors had prematurely talked about the case, and by issuing a curative instruction to the panel addressing the topic of premature deliberations. None of the jurors indicated that the one juror's question would affect their later deliberations. The court declined to allow the State to recall witnesses to address the one juror's question. The court denied Petitioner's motion for mistrial, finding no premature deliberations had taken place and that Petitioner suffered no prejudice.
The South Carolina Court of Appeals reviewed this issue pursuant to Anders v. California, 386 U.S. 738 (1967), and dismissed the appeal. [ECF No. 15-1 at 399-400]. As held by the South Carolina Supreme Court, “[i]n these cases, the role of the appellate court is to review the brief submitted by counsel, any pro se response submitted by the appellant, and the record on appeal to determine whether the appeal contains any issues of arguable merit.” State v. Lyles, 673 S.E.2d 811, 813 (S.C. 2009). “[I]f no issues of arguable merit are found by the appellate court, the appeal is dismissed, and the appellant's counsel is relieved.” Id. The dismissal “simply reflects that the appellate court was unable to ascertain a non-frivolous issue which would require counsel to file a merits brief.” Id. In these scenarios, “the federal court should ‘look through' the unexplained decision to the last related state-court decision that does provide a relevant rationale.” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
Therefore, turning to what occurred at Petitioner's trial, the record reveals the state trial court took the necessary steps to ensure the jury was not tainted by the one juror's inquiry and did not err in denying Petitioner's mistrial motion. Although “[p]remature deliberations may amount to misconduct that could affect fundamental fairness, ” State v. Carmack, 694 S.E.2d 224, 228 (S.C. Ct. App. 2010), “premature deliberations [do] not warrant automatic reversal” and petitioner “must demonstrate prejudice from jury misconduct in order to be entitled to a new trial.” State v. Aldret, 509 S.E.2d 811, 814 (S.C. 1999).
In Aldret, the South Carolina Supreme Court provided the “suggested procedure to follow in cases in which an allegation of premature deliberations arises, ” including that the trial judge “should conduct a hearing to ascertain if, in fact, such premature deliberations occurred, and if the deliberations were prejudicial.” Id. at 815; see also Id. (“If the court determines the misconduct did not occur, or that it was not prejudicial, adequate findings should be made so that the determination may be reviewed.”). The trial judge did so in this case, finding premature deliberations did not occur, only that one juror asked a question that was overheard by other jurors, and that no prejudice ensued. [See, e.g., ECF No. 15-1 at 225 (“I think the examination of the foreman indicates that he was not discussing it with anyone, nor was the jury engaged in any premature deliberations.”)].
Petitioner argues there is “clear evidence that there was premature deliberations going on mid-trial, ” but does not address the argument that no prejudicial impact occurred. [See ECF No. 23 at 5-6].
Accordingly, the undersigned recommends the district judge grant Respondent's motion for summary judgment as to Ground Four.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the court grant Respondent's motion for summary judgment [ECF No. 16] and dismiss the petition with prejudice.
IT IS SO RECOMMENDED.
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).