Opinion
C. A. 9:22-cv-03321-TMC-MHC
05-11-2023
Tamar Yaron Bryant, Petitioner, v. Warden of Lee Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY, UNITED STATES MAGISTRATE JUDGE.
Petitioner Tamar Yaron Bryant, (“Petitioner”), a state prisoner, seeks habeas relief pursuant to 28 U.S.C. § 2254. Respondent Warden of Lee Correctional Institution (“Respondent”) filed a Motion for Summary Judgment, along with a Return and Memorandum (“Motion”). ECF Nos. 19, 20. Petitioner filed a Response in Opposition. ECF No. 21. Respondent filed a Reply. ECF No. 22. The matter is ripe for review.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the assigned district judge referred the Motion to the undersigned for a report and recommendation. For the reasons that follow, the Court recommends that Respondent's Motion be granted and the Petition be dismissed with prejudice.
I. BACKGROUND
The procedural history as described by Respondent has not been disputed by Petitioner in his Response and is set forth as follows. On May 18, 2011, Petitioner was indicted by the Georgetown County Grand Jury for murder. ECF No. 19 at 1. On March 18, 2013, Petitioner's trial commenced before the Honorable Larry B. Hyman, Jr. (“Trial Judge”). ECF No. 19 at 1. After three days of testimony, Petitioner was found guilty of murder. Petitioner was sentenced to a thirty- five-year period of incarceration. ECF No. 19 at 1-2.
On March 27, 2013, Petitioner filed a notice of appeal before the South Carolina Court of Appeals. ECF No. 19 at 2. On December 3, 2014, the South Carolina Court of Appeals issued an unpublished opinion affirming the decision of the trial court. State v. Bryant, No. 2013-000671, 2014 WL 6791848, at *1 (S.C. Ct. App. Dec. 3, 2014). The Remittitur was delivered to the Georgetown County Clerk of Court on December 19, 2014. ECF No. 19 at 2.
On December 9, 2015, Petitioner filed an application for post-conviction relief (“PCR”), and the Office of the Attorney General filed their Return on February 5, 2016. ECF No. 19-2 at 315. Petitioner then filed an amended application for PCR on August 24, 2018. ECF No. 19-2 at 16-17. Within his PCR application, Petitioner argued that his Trial Counsel was ineffective for: (a) failing to properly advise Petitioner regarding and utilizing him as a witness at his Jackson v. Denno hearing; (b) the handling of witness Shaquettia Holmes; (c) by failing to enter an objection or exception to the jury instruction on malice for lacking the general permissive instruction; and (d) failing to enter an objection or exception to the Trial Judge's comments; specifically, but not limited to, comments regarding “searching for the truth” to the jury. ECF No. 19-2 at 16. Petitioner also claimed ineffective assistance of Appellate Counsel, arguing counsel failed to raise a meritorious issue on appeal; “specifically, but not limited to: the admissibility of [Petitioner's] interrogation/confession.” ECF No. 19-2 at 17.
On March 25, 2019, an evidentiary hearing was held before a PCR Judge. ECF No. 19-2 at 18-83. Petitioner was present and testified. Petitioner's Trial Counsel and Appellate Counsel also testified. On December 5, 2019, the PCR Judge issued its order dismissing Petitioner's PCR application. ECF No. 19-2 at 86-112. On January 18, 2020, Petitioner filed a Rule 59(a) and (e) motion, which was ultimately denied by the PCR Judge on March 6, 2020. ECF No. 19-2 at 113-19.
Petitioner filed an initial notice of appeal before the Supreme Court of South Carolina on April 8, 2020. ECF No. 19-3 at 1. On January 28, 2021, Petitioner filed a petition for writ of certiorari before the Supreme Court of South Carolina. ECF No. 19-4. On April 19, 2021, the case was transferred to the South Carolina Court of Appeals. See Rule 243(1), SCACR; ECF No. 19 at 5. On August 19, 2022, the Court of Appeals issued an order dismissing Petitioner's writ of certiorari. ECF No. 19-5. The Remittitur was sent to the Georgetown County Clerk of Court on September 15, 2022, and filed within the Clerk of Court's Office on September 19, 2022. ECF No. 19-6.
On September 28, 2022, the Petitioner timely filed this § 2254 petition for writ of habeas corpus in the United States District Court. ECF No. 1. Petitioner raised the following grounds for relief:
GROUND ONE: Ineffective Assistance of Counsel for failing to advise Petitioner as to his right to testify at the Jackson v. Denno hearing.
SUPPORTING FACTS: Counsel did not advise Petitioner of his right to testify at [the] hearing, when Petitioner['s] testimony was critical to the outcome of hearing. When trial court rendered decision critical facts were not addressed and ruling was not based on adequate facts rendering decision an abuse of discretion.
GROUND TWO: Ineffective Assistance of Counsel for failure to object to jury instruction.
SUPPORTING FACTS: Counsel made no objections to trial court judge charge which lacked the general permissive inference instruction. This inference was not included when the court charged the jury and was required to be charged to jury. [This] failure deprived Petitioner and failing to [object] contributed to the verdict.
GROUND THREE: Ineffective Assistance of Counsel [for] failure to object to comments.
SUPPORTING FACTS: Counsel made no objections to court comments “searching for the truth” [which] is an: (1) appeal for the sympathy of jurors; (2)
prejudicial to the Petitioner when such comments shift the burden to the defense.
GROUND FOUR: Ineffective Assistance of Counsel
SUPPORTING FACTS: During trial, counsel improperly handled Shaquettia Holmes before and during trial, [denying Petitioner the] right to a full adversarial test as required. Counsel abandoned Petitioner at a critical stage.ECF No. 1-3 at 6-11
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 a court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can a 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”). 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).
III. DISCUSSION
Petitioner raises four grounds for relief in his petition, all of which allege his Trial Counsel was ineffective.
A. Ineffective assistance of counsel
The United States Supreme Court has said that a meritorious ineffective assistance of counsel claim must show two things: first, that counsel's performance was deficient and, second, that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-96 (1984).
As to the first prong, a court's evaluation of counsel's performance under this standard must be “highly deferential,” to not “second-guess” the performance. Id. at 689. “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (internal quotation marks and citation omitted); see also Bowie v. Branker, 512 F.3d 112, 119 n.8 (4th Cir. 2008); Fields v. Att'y Gen. of Md., 956 F.2d 1290, 1297-99 (4th Cir. 1992).
To establish the second prong of Strickland, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable probability” has been defined as “a probability sufficient to undermine confidence in the outcome.” Id.
While Strickland itself is a deferential standard, when both § 2254(d) and Strickland apply, review is “doubly” deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011). “Thus, [t]he question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Valentino, 972 F.3d at 580 (citation and internal quotation marks omitted). Indeed, when § 2254(d) applies, the question becomes “whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id. (citation and internal quotation marks omitted).
B. Petitioner's arguments
With the “doubly” deferential standard in mind, the Court turns to each Ground in the petition. Petitioner argues that his Trial Counsel was ineffective by: (1) failing to advise Petitioner of his right to testify at the Jackson v. Denno hearing; (2) not objecting to the Trial Judge's jury instructions; (3) not objecting to the Trial Judge's comments about “searching for the truth” in his opening remarks to the jury; and (4) not properly handling witness Shaquettia Holmes.
Respondent generally argues that the PCR Judge's rejection of the above grounds was neither contrary to, nor was it an unreasonable application of, clearly established United States Supreme Court precedent under § 2254(d)(1). For the reasons that follow, the Court agrees with Respondent.
Respondent concedes that the Petition is not barred by the statute of limitations and that all Grounds raised in the Petition were fully exhausted in state court. ECF No. 19 at 9-11.
1. Ground One - Jackson v. Denno hearing
Petitioner asserts that his Trial Counsel was ineffective by failing to advise Petitioner of his right to testify at the Jackson v. Denno hearing. The undersigned finds that Petitioner has failed to meet his burden under the “doubly” deferential standard of § 2254(d) and Strickland and recommends Respondent's Motion be granted on this Ground.
A Jackson v. Denno hearing is a pretrial hearing held to determine the admissibility of a criminal defendant's confession or statements to law enforcement. The purpose of the hearing is to assess the voluntariness of the confession and to ensure that it was obtained without coercion, threats, or promises. See Jackson v. Denno, 378 U.S. 368, 376-77 (1964) (noting a criminal defendant has a “constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession”).
Trial Counsel testified as to this claim at the PCR hearing. The PCR Judge accurately summarized Trial Counsel's testimony on this issue as follows:
At the evidentiary hearing, Trial Counsel testified he met with [Petitioner] on fifteen occasions prior to trial, and that he reviewed with [Petitioner] the video recording of [Petitioner's] interrogation many times. Trial Counsel testified that he explained to [Petitioner] that he had a right to testify and that there would be no jury present at the Denno hearing, but [Petitioner] did not want to testify. Trial Counsel opined that [Petitioner's] testimony at the Denno hearing would have been great, as he could have established that he was under the influence of both drugs and alcohol at the time of his statements to law enforcement.
On cross-examination, Trial Counsel explained that he arranged to transport [Petitioner] on November 30, 2012, to an otherwise empty Courtroom 3B at the Georgetown County Judicial Center and discuss the statement with him in the courtroom in an effort to impress upon him the severity of the situation, but [Petitioner] simply would not grasp the gravity of his situation. Counsel recalled he asked [Petitioner] how to deal with the statement, to which [Petitioner] offered the simple and bewildering answer that he had told the cops he did it, so he would just tell the cops he didn't do it. Counsel testified during the same meeting he reviewed with [Petitioner] his right to remain silent, and that [Petitioner] would not entertain plea offers extended by the State.
[]
Counsel testified he next met [Petitioner] on December 4, 2012, at which time he attempted to discuss with [Petitioner] his prior convictions, but [Petitioner] was not forthcoming. [Petitioner] indicated he did not wish to testify, but Counsel nonetheless “coached” him on how to testify during a trial. Counsel testified he again met with [Petitioner] on December 17, 2012, when they appeared before Judge Culbertson, where [Petitioner] again indicated he did not wish to testify. Counsel testified that he once again discussed [Petitioner's] options regarding testifying and calling witnesses on March 1, 2013, and [Petitioner] again indicated he did not wish to testify and further did not wish to call witnesses.
[]
Trial Counsel explained that [Petitioner] was a pleasant client and never argumentative, but otherwise refused to discuss or acknowledge the case against him. [Petitioner's] detachment was so great that Trial Counsel sought to have [Petitioner] mentally evaluated, but his motions were rejected by both Judges John
and Culbertson.ECF No. 19-2 at 95-96 (paragraph breaks added for ease of reading).
Petitioner also testified as to this claim at the PCR hearing. The PCR Judge accurately summarized Petitioner's testimony on this issue as follows:
[Petitioner] testified he only met Trial Counsel six or seven times, and that he could not remember reviewing the video recording of his statements to law enforcement in the courtroom. [Petitioner] denied Counsel ever discussed testifying or not testifying during the Denno hearing. [Petitioner] claimed he did not know he could testify during the Denno hearing, and then not testify during trial. [Petitioner] testified that when he told the trial court that he did not wish to testify, he did not understand the scope of the court's questions. [Petitioner] agreed he and Trial Counsel “had a disconnect” throughout representation, and explained it was due to remarks made by Trial Counsel about bond early in the representation.
[Petitioner] testified to his recollection of events at the time of his arrest and interview by law enforcement. [Petitioner] recalled that when he was arrested he denied involvement and laughed, which angered the police. The police took him into a room, but [they] did not say anything about recording him. [Petitioner] testified that he fabricated a statement to the police that he did not know why he shot the victim. [Petitioner] emphasized that he made the whole thing up, and that he fabricated further answers because the police continued to ask questions when he said he didn't know anything. [Petitioner] testified he gave information he knew to be false. Near the end of the interview, one officer gave him a business card, such that [Petitioner] thought the police did not believe him. [Petitioner] testified he told the police whatever they wanted to hear in order to get it over with and move on. On cross-examination, [Petitioner] admitted that he was aware of his rights, including his right to remain silent.ECF No. 19-2 at 96-97.
After considering the testimony, judging the credibility of the witnesses, and reviewing the materials presented, the PCR Judge found that Petitioner failed to demonstrate Trial Counsel was deficient, or that Petitioner suffered from any prejudice from the alleged deficiency. ECF No. 192 at 97. Specifically, the PCR Judge detailed four reasons Petitioner was not entitled to relief on this claim. ECF No. 19-2 at 97-98. First, the PCR Judge found that Petitioner fully understood his right to testify at the Denno hearing, and that any testimony he might give at that hearing would not be exposed to the jury. The PCR Judge found that both Trial Counsel and the Trial Judge “repeatedly endeavored to impress the fact upon [Petitioner] and could do no more to explain it,” such that Trial Counsel performed within the scope of reasonably effective assistance in advising Petitioner of his rights ECF No. 19-2 at 97.
Second, the PCR Judge noted that Petitioner himself refused to testify, despite efforts by Trial Counsel to fully appraise Petitioner of his rights to testify at the Denno hearing. The PCR Judge found that Petitioner, knowing his rights, chose not to testify, and that Trial Counsel could not make Petitioner testify. ECF No. 19-2 at 98.
Third, the PCR Judge found that, even if Petitioner's testimony was taken as true, it did not establish that Petitioner's confession to police was involuntary because Petitioner admitted to understanding that he had the right to remain silent. ECF No. 19-2 at 98. In other words, the PCR Judge concluded that even if Petitioner had testified during the Denno hearing, the outcome of that hearing would not have been different, and Petitioner's confession would still have been admissible as evidence during trial.
Fourth, the PCR Judge did not find Petitioner's testimony credible, and was “struck” by Petitioner's relaxed, nonchalant, and nonserious demeanor during his testimony at the PCR hearing. ECF No. 19-2 at 98. The PCR Judge found that had Petitioner provided the same sort of testimony at the Denno hearing, Petitioner would have self-destructed his own credibility and likely would have harmed his chances in successfully suppressing his confession. ECF No. 19-2 at 99.
Taking all the above into consideration, the PCR Judge found that Trial Counsel “performed as capably as could be expected given an uncooperative and dishonest client,” and concluded that even if “Trial Counsel had done anything different so as to elicit [Petitioner's] testimony during the Denno hearing, the testimony would not have changed the outcome of the hearing.” ECF No. 19-2 at 99.
Upon review, the undersigned finds that the PCR Judge did not apply Strickland unreasonably or base his adjudication on an unreasonable determination of the facts in finding Trial Counsel not deficient. See 28 U.S.C. § 2254(d); Valentino, 972 F.3d at 580 (noting the question is not whether a federal court considers the state court's determination under the Strickland standard to be incorrect, but whether that determination was unreasonable). The PCR Judge found that Trial Counsel credibly testified as to his repeated efforts to apprise Petitioner of his rights leading up to the Denno hearing. See McWee v. Weldon, 283 F.3d 179, 186 (4th Cir. 2002) (affording deference to a state court's credibility determination on testimony establishing underlying facts). Furthermore, the Denno hearing transcript reflects that both Trial Counsel and the Trial Judge explained to Petitioner his right to testify, but Petitioner ultimately chose not to. ECF No. 19-1 at 26-27. Thus, given Trial Counsel's testimony and the record which plainly reflects Petitioner's acknowledgement of his right to testify, the PCR Judge did not apply Strickland unreasonably in finding Trial Counsel's efforts fell within the scope of reasonably effective assistance.
The PCR Judge found that Trial Counsel's testimony was more credible than Petitioner's. Such a factual finding on credibility is presumed to be correct, and Petitioner has the “burden of rebutting the presumption . . . by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Petitioner has not done so here.
The undersigned likewise finds no error in the PCR Judge's prejudice analysis. The PCR Judge found that Petitioner's testimony at the PCR hearing did not provide any information that established his statement was not voluntarily given to police. To the contrary, the PCR Judge found, and the PCR transcript reflects, that Petitioner asserted that he knew he had a right to remain silent, and that he knowingly and deliberately gave a false statement to law enforcement. The PCR Judge further found Petitioner's testimony not credible and was “struck” by Petitioner's “cavalier attitude toward the truth” which the PCR Judge concluded would have “more likely harmed his chances of prevailing upon the motion to suppress.” ECF No. 19-2 at 98-99. Taking this together, the undersigned finds that the PCR Judge did not unreasonably apply Strickland or base his adjudication on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (noting “federal habeas courts [have] no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them” (citation and quotation marks omitted)). That is, the PCR Judge reasonably determined that Petitioner failed to show that, but for Trial Counsel's alleged deficiency, the result of the Denno hearing-and, by extension, the trial-would have been different. See Ladner v. Pate, No. 5:13-CV-02811-JMC, 2015 WL 690248, at *18-22 (D.S.C. Feb. 18, 2015) (finding, in a case where Trial Counsel admitted to making a mistake in failing to call Petitioner as a witness during a Denno hearing, the PCR Judge did not apply Strickland unreasonably because Petitioner did not establish that his testimony could have shown his statements were not given freely and voluntarily such that the result of the Denno hearing would have been different). Accordingly, the undersigned recommends that Respondent's Motion be granted as to this Ground in the Petition.
2. Ground Two - jury instruction
Petitioner argues that Trial Counsel was ineffective for not objecting to the Trial Judge's failure to give a “permissive inference jury instruction.” ECF No. 21 at 4.
The PCR Judge found Trial Counsel was not ineffective as to this claim. First, the PCR Judge accurately detailed the history of South Carolina case law surrounding this issue as follows:
The Court finds Applicant cannot show ineffectiveness on the part of Trial Counsel for failing to object to the exclusion of the “general permissive inference instruction” from the trial court's jury instructions regarding malice. In State v. Elmore, 279 S.C. 417, 803 S.B.2d 781 (1983), overruled on other grounds by State v. Torrence,
305 S.C. 45, 69 n.5, 406 S.E.2d 315, 328 n.5 (1991), the Supreme Court of South Carolina held that the trial court's instruction on malice as it related to the use of a deadly weapon constituted a mandatory presumption, and set forth a jury charge consistent with the Due Process Clause for trial courts to utilize in the future:
The law says if one intentionally kills another with a deadly weapon, the implication of malice may arise. If facts are proved beyond a reasonable doubt, sufficient to raise an inference of malice to your satisfaction, this inference would simply [be] an evidentiary fact to be taken into consideration by you, the jury, along with other evidence in the case, and you may give it such weight as you determine it should receive.
Elmore, 279 S.C. at 421, 308 S.E.2d at 784. The Elmore Court firmly advised the bench “that hereafter only slight deviations from this charge will be tolerated.” Id.
The Supreme Court returned to the inference of malice from the use of a deadly weapon more than 25 years later in State v. Belcher and held that the first sentence of the above charge could not be instructed to juries where the record contained evidence to reduce, excuse, mitigate, or justify a homicide or assault and battery with intent to kill. 385 S.C. 597, 685 S.E.2d 802 (2009). The Court distinguished the remainder of the charge as the “general permissive inference instruction,” and noted that it remained valid. Id. [at 612 n.9], 685 S.E.2d at 810 n.9.
A few years later, in Gibson v. State, the Supreme Court reversed a denial of postconviction relief where the trial court charged the inference of malice from the use of a deadly weapon, but failed to include the remainder of the Elmore charge. 416 S.C. 260, 785 S.E.2d 121 (2016). Gibson was decided in simple fashion, without briefing or oral arguments, based on the very reasonable observation that total omission of the general permissive inference language was no “slight deviation” from the Elmore charge, in clear disregard for Elmore's admonition.ECF No. 19-2 at 104-05.
At trial, the relevant jury charge language that the Trial Judge gave was:
Malice aforethought may be express or inferred. These terms, expressed and inferred[,] do not mean different kinds of malice, but merely the manner in which malice may be shown to exist, that is either by direct evidence or by inference from the facts and the circumstances which are proved. Expressed malice is shown when a person speaks words which express hatred or ill will for another or when the person prepared beforehand to do the act which was later accomplished; for example, lying in wait for a person or any other acts of preparation going to show that the deed was in the Defendant's mind would be express malice. Malice may be inferred from conduct showing a total disregard for human life.ECF No. 19-1 at 318-19 (emphasis added).
The PCR Judge considered this language and noted that the Trial Judge did not instruct the jury on the inference of malice from the use of a deadly weapon. In finding that Trial Counsel was not deficient, the PCR Judge noted the general permissive inference of malice portion of the Elmore charge is only “required as part of a complete instruction on the inference of malice from the use of a deadly weapon,” and further noted there has “never been any requirement to charge the language in a stand-alone fashion.” ECF No. 19-2 at 106 (emphasis added). The PCR Judge reasoned:
The language of the Elmore charge is specifically tailored to deal with the perceived and real dangers in instructing the jury that inference may be inferred from the use of a deadly weapon, and represents a solution to the then-recurring problem of jury instructions which provided for burden-shifting presumptions in violation of the United States Constitution. The second part of the Elmore charge serves as a cautionary restraint on the first part, and is of little instructional value standing alone. Standing alone, the instruction demanded would be confusing.ECF No. 19-2 at 106 (emphasis in original).
The PCR Judge further found that, even if the charge were required, Petitioner failed to show prejudice. The PCR Judge noted he “[could] not conceive of how [Petitioner] was prejudiced by the absence of the general permissive inference instruction,” as the instruction that Petitioner demanded “says little more than what is already instructed to the jury: that they may use evidence and give it such weight as they determine it should receive.” ECF No. 19-2 at 107.
Upon review, the undersigned agrees with the PCR Judge's reasoning. As noted above, and as Petitioner argues, the Elmore Charge consists of two sentences: the first sentence of the charge is the “standard implied malice charge” and the second sentence is the “general permissive inference instruction.” See ECF No. 21 at 5; ECF No. 19-2 at 105-06. The Trial Judge in this case never instructed the jury that malice can be inferred from the use of a deadly weapon. See ECF No. 19-1 at 318-19. In other words, the first sentence of the Elmore Charge-i.e., the “standard implied malice charge”-was not given to the jury. As the PCR Judge noted, the general permissive inference instruction-i.e., the second sentence of the Elmore Charge-is only required in those situations where the trial court instructs the jury that malice could be inferred from the use of a deadly weapon. Thus, here, the general permissive inference instruction was not needed, and Trial Counsel was not deficient by not requesting any further jury instruction on that issue. Petitioner has not shown that the PCR Judge's finding as to deficiency was unreasonable.
As recognized by both the PCR Judge and Petitioner, the Supreme Court of South Carolina has since definitively held that “a trial court shall not instruct the jury that it may infer the existence of malice when the deed was done with a deadly weapon.” State v. Burdette, 832 S.E.2d 575, 582 (S.C. 2019). The Supreme Court of South Carolina reasoned that a jury instruction on inferred malice from the use of a deadly weapon is an improper court-sponsored emphasis of a fact in evidence. See id. Again, however, the Trial Judge here did not instruct the jury it could infer malice from a deadly weapon. Thus, Burdette's core holding has little relevance to whether Trial Counsel was deficient in failing to object to the instruction given in Petitioner's case, despite what Petitioner appears to suggest. See ECF No. 21 at 6. Moreover, as the PCR Judge also noted, even if the Supreme Court of South Carolina subsequently holds that the general permissive inference instruction was required in every case involving malice aforethought, the absence of any clear precedent with a holding to that effect at the time of Petitioner's trial provides that Trial Counsel could not have possibly known to demand that language or object to its exclusion. See ECF No. 19-2 at 106-07.
As to prejudice, the undersigned is unable to see how Petitioner was possibly prejudiced by the absence of this general permissive inference instruction. Again, the Trial Judge did not instruct the jury on the inference of malice from the use of a deadly weapon-i.e., the first sentence of the Elmore Charge. The general permissive inference that Petitioner argues was required is: “If facts are proved beyond a reasonable doubt, sufficient to raise an inference of malice to your satisfaction, this inference would be simply an evidentiary fact to be taken into consideration by you, the jury, along with other evidence in the case, and you may give it such weight as you determine it should receive.” ECF No. 21 at 5. Petitioner insists the absence of this instruction changed the outcome of the trial, but he fails to explain how. Indeed, the undersigned agrees with the PCR Judge's observation that this instruction does little more than tell the jury what it already knows: that they may use evidence and give it such weight as they determine it should receive. ECF No. 19-2 at 107. Consequently, the undersigned finds that the PCR Judge did not apply Strickland unreasonably or base his adjudication on an unreasonable determination of the facts in finding Trial Counsel not deficient, nor was the PCR Judge's determination with regard to prejudice unreasonable. See 28 U.S.C. § 2254(d). The undersigned recommends that Respondent's Motion be granted as to this Ground in the Petition.
3. Ground Three - Trial Judge's comment “search for the truth”
Petitioner argues that Trial Counsel was ineffective for not objecting to the Trial Judge's opening remarks to the jury. ECF No. 21 at 7-9. Specifically, Petitioner maintains that Trial Counsel should have objected to the Trial Judge's statement about the trial being a “search for the truth.” ECF No. 21 at 7.
During his opening remarks to the jury at the beginning of trial, the Trial Judge stated:
I want to thank you for being here and serving as jurors in this court. It seems that every time we turn on the TV there is a trial going on of some sort [or] some sort of TV show or movie, and every one of those trials seem to be the most riveting and exciting things that you can imagine. In reality that's not necessarily how a trial really goes. The search for the truth is often tedious, repetitive and slow and that's as it should be for we have here at stake this, this day, this week is not only the right of the State to punish those that it feels has or have violated the laws of this State, but also we have the liberty of this Defendant at stake and he has plead not guilty to the indictment that I presented to you earlier, and again, I want to make sure that you understand that this indictment is not evidence in this case, it is just the document by which he is charged.ECF No. 19-1 at 76-77 (emphasis added). Later in the opening remarks, the Trial Judge discussed judging witness credibility with the jury:
Now, you as jurors are the sole and exclusive judges of the facts in this case. At the end of the case you and you alone will determine or say what happened, what transpired during this event. You as jurors will judge the credibility or believability of every witness who testifies in this trial. In doing so you can apply just about any
test that you in your experience have determined to be a fair and reasonable and responsible way of determining what the truth is.ECF No. 19-1 at 77-78 (emphasis added).
At the PCR hearing, Trial Counsel noted that he did not have a strategic reason for not objecting to the Trial Judge's comments about searching for the truth. ECF No. 19-2 at 38-39. Rather, he noted that the case occurred before the Supreme Court of South Carolina's admonition against using truth-seeking language when addressing the jury. ECF No. 19-2 at 38.
The PCR Judge found that Petitioner failed to show deficiency or prejudice on the part of Trial Counsel. ECF No. 19-2 at 107-09. The PCR Judge discussed the South Carolina case law that delves into this issue and noted that the Trial Judge's ultimate instructions “charged the jury, repeatedly, that [Petitioner] was presumed innocent unless and until the State proved his guilt beyond a reasonable doubt.” ECF No. 19-2 at 108. The PCR Judge found:
The Court finds [Petitioner] has failed to show any deficiency on the part of Trial Counsel or any prejudice from the deficiency alleged. [The Trial Judge's] remarks did not impress upon the jury any impression that their duty was to seek the truth, but rather (1) explained that real trials were much more time intensive than those reflected on television, and (2) that jurors had wide discretion in making credibility determinations. The “truth seeking” language employed by [the Trial Judge] appears to be precisely of the kind held to be acceptable in Aleksey, and substantially less concerning than the comments addressed in Beaty, which affirmatively described a trial as “a search for the truth in an effort to make sure that justice is done.” Beaty, 423 S.C. at 32, 813 S.E.2d at 505. If the comments at issue in Beaty were not sufficient to prejudice the defendant, the comments at issue here absolutely do not prejudice [Petitioner]. Accordingly, the Court finds no deficiency on the part of Trial Counsel by way of this allegation, nor prejudice therefrom, and [Petitioner's] request for relief is DENIED.ECF No. 19-2 at 109.
Upon review, the undersigned finds that the PCR Judge's rejection of this claim of ineffective assistance of counsel is not contrary to, or an unreasonable application of, clearly established federal law, nor did the PCR Judge's adjudication result in an unreasonable determination of the facts. As argued by Respondent, the language used by the Trial Judge was used during his preliminary remarks to the jury and were not used during jury charges instructing the jury on the law. ECF No. 19 at 16. The South Carolina case law at the time of Petitioner's trial dealing with the “search the truth” language focused on jury instructions that ran the risk of unconstitutionally shifting the burden of proof to the defendant. See, e.g., State v. Needs, 508 S.E.2d 857, 867 (S.C. 1998) (“[T]he trial judge's circumstantial evidence charge was erroneous because it instructed jurors to seek a reasonable explanation other than the guilt of the accused.”); State v. Aleksey, 538 S.E.2d 248, 251 (S.C. 2000) (“Jury instructions on reasonable doubt which charge the jury to ‘seek the truth' are disfavored because they ‘[run] the risk of unconstitutionally shifting the burden of proof to a defendant.'” (quoting Needs, 508 S.E.2d at 867-68)); see also State v. Daniels, 737 S.E.2d 473, 475 (S.C. 2012) (instructing discontinuance of charge that jury's duty is to return a verdict that is “just” and “fair” to all parties). It was not until 2018 that the Supreme Court of South Carolina expressed that trial courts should not use “search for the truth” language when addressing the jury in opening remarks. See State v. Beaty, 813 S.E.2d 502, 506 (S.C. 2018) (agreeing that “a trial judge should refrain from informing the jury, whether through comments or through a charge on the law, that its role is to search for the truth, or to find the true facts, or to render a just verdict.”). Thus, the PCR Judge's determination that Trial Counsel was not deficient in failing to object to this language during the Trial Judge's opening remarks was not unreasonable.
Even if Trial Counsel should have objected, the undersigned agrees with the PCR Judge that Petitioner nevertheless failed to show prejudice. Although the Supreme Court of South Carolina found that the trial judges in Aleksey and Beaty erred in using such language in jury charges and opening remarks, that court ultimately found no prejudice in both cases because the language would not have informed the jury's understanding of the burden of proof. See Aleksey, 538 S.E.2d at 252 (holding jury charge on reasonable doubt that charged the jury to “seek the truth” caused no prejudice where it was “given in the context of the jury's role in determining the credibility of witnesses” and there was “not a reasonable likelihood the jury applied the challenged instruction in a manner inconsistent with the burden of proof beyond a reasonable doubt”); Beaty, 813 S.E.2d at 506 (S.C. 2018) (finding opening remarks that referenced a “search for the truth,” “true facts,” and “just verdict” did not warrant reversal where the comments were not included in a charge on the law and had no connection to the charges on reasonable doubt or circumstantial evidence).
Here, as noted by the PCR Judge, the Trial Judge's “ultimate instructions charged the jury, repeatedly, that [Petitioner] was presumed innocent unless and until the State proved his guilt beyond a reasonable doubt.” ECF No. 19-2 at 108 (citing Trial Tr. 310-11; Trial Tr. 312, ll. 1517; Trial Tr. 315, ll. 2-9; Trial Tr. 316, ll. 3-6; Trial Tr. 317-18; Trial Tr. 319, ll. 21-22). Thus, Petitioner failed to show how the brief use of the “search for the truth” language at the opening of trial undermined or otherwise infected the Trial Judge's repeated instructions to the jury at the close of trial as to the burden of proof for beyond a reasonable doubt. Consequently, the PCR Judge's finding as to prejudice was not unreasonable. See, e.g., Gethers v. Stirling, No. CV 1:19-1088-TMC-SVH, 2019 WL 9656381, at *15 (D.S.C. Oct. 17, 2019) (finding the PCR Judge's application of Strickland was not unreasonable where Petitioner failed “to show the trial court's brief reference to a search for truth at the beginning of trial was objectionable or undermined the court's proper instructions on the burden of proof in its jury charge”), report and recommendation adopted, No. 1:19-CV-01088-SAL, 2020 WL 3026468 (D.S.C. June 5, 2020); Stanfield v. Reynolds, No. 2:16-CV-01066-CMC-MGB, 2016 WL 11190486, at *11 (D.S.C. Dec. 6, 2016) (same), report and recommendation adopted, No. CV 2:16-1066-CMC-MGB, 2017 WL 104131 (D.S.C. Jan. 11, 2017). Accordingly, the undersigned recommends granting Respondent's Motion as to this Ground.
4. Ground Four - ineffective handling of witness
Petitioner argues Trial Counsel was ineffective for his handling of Saquettia Holmes, one of the State's witnesses. ECF No. 21 at 10-12. Specifically, Petitioner argues that Trial Counsel failed to sufficiently cross-examine Holmes on her various statements to law enforcement about the identity of the shooter. Petitioner maintains that statements Holmes made in an interview with Trial Counsel's investigator could have served as impeachment evidence, and Trial Counsel was deficient by not using this evidence during cross-examination. Petitioner argues this evidence would have had a “great impact” on the State's case against him. ECF No. 21 at 11.
At trial, Trial Counsel cross-examined Holmes and walked her through her version of the events that evening. The PCR Judge accurately summarized Holmes's testimony on cross-examination as follows:
[Holmes] arrived at the club sometime before 10:30 p.m. alongside Mark and Jonathan Greer. (Trial Tr. 127-28). While at the club, her uncle Laverne entered the building toting the long gun alongside Cameron Green and quickly moved towards the victim [Deon Myers] and the restroom; the sight of the gun alarmed those who saw it. (Trial Tr. 128-30). Myers [the victim] and two women with him retreated into the restroom and Laverne followed. (Trial. Tr. 132-34). Holmes testified she heard Laverne question Myers over threats he supposedly made to Laverne's family; Myers denied any such threats. (Trial Tr. 130-31; Trial Tr. 13233). Holmes told Laverne to leave Myers alone. (Trial Tr. 132, ll. 2-4). Laverne complied, and departed leaving Myers, Holmes, and the two women in the restroom when [Petitioner] entered with his own gun. (Trial Tr. 135-36). Holmes recalled that Myers wanted to follow Laverne and talk out the dispute, but Holmes warned him about the guns. (Trial Tr. 136, ll. 11-14). [Petitioner] entered the restroom and indicated all was good; Myers indicated he knew [Petitioner] and Holmes let him exit the restroom. (Trial Tr. 136-37). Myers was shot before he reached the front door. (Trial Tr. 136-37).ECF No. 19-2 at 100-01 (footnote omitted).
During this cross-examination, Trial Counsel inquired if Holmes gave a statement to law enforcement, which she initially denied. ECF No. 19-1 at 140. Trial Counsel pressed her on the subject, and Holmes explained she never told any police officer that she knew Petitioner or that she saw him with a gun. Holmes stated:
When I was on the phone with the 911 people all I could think was it was my uncle that shot him and with me screaming that someone else was like he didn't shoot him, it was the other boy and the 911 call the lady was saying that they were on their way or whatever and she was trying to calm me down because, I mean I just couldn't sit there, but ---ECF No. 19-1 at 140. Trial Counsel followed up, and Holmes reaffirmed she had been screaming that she thought her uncle Laverne had shot the victim. ECF No. 19-1 at 140-41. On redirect examination, Holmes testified she did not know who shot the victim, but she had heard others exculpate Laverne and inculpate Petitioner. ECF No. 19-1 at 141-42.
At the PCR Hearing, Trial Counsel testified as to his discussions with Petitioner on whether Holmes could be a potential witness for the defense and Holmes's statements to law enforcement. The PCR Judge accurately summarized Trial Counsel's testimony as follows:
At the evidentiary hearing, Trial Counsel testified he and [Petitioner] discussed [Petitioner's] version of what occurred the night of the killing. [Petitioner] admitted to Trial Counsel he was present at the club on the night of the killing, and that he had been in the bathroom with Holmes, two other women, and the victim. [Petitioner] told Trial Counsel that Holmes would be able to confirm that [Petitioner] was not in the restroom at the time of the shooting. Trial Counsel recalled that Holmes gave two statements to law enforcement. Holmes' first statement neither confirmed nor denied [Petitioner] shot the victim. Trial Counsel directed a private investigator in the employ of the public defender's office, F. Jerome Randall, to separately interview Holmes, which occurred on December 11, 2012. Randall reported to Trial Counsel:
Ms. Holmes states that on the night of the incident at the club in Plantersville she was in the bathroom with the victim Mr. Myers and [Petitioner]. Ms. Holmes states that [Petitioner] and the victim had a conversation inside the bathroom; however it was not a hostile meeting. She cannot remember what was said exactly. She does remember telling the victim to calm down and just be cool because
she knew the guys did not run up in there for NO reason. She knew or suspected that they all had guns. She knew that [Petitioner] had a gun from being in the bathroom with him. Mr. Myers and [Petitioner] walked out of the bathroom ahead of Ms. Holmes and as soon as she reached the door the shots rang out. She cannot sa[y] who did the shooting, she remain[ed] inside the restroom until things calm[ed] down.
(Applicant's Exhibit #1). Holmes' second statement to law enforcement and the prosecution in March 2013, however, unequivocally confirmed [Petitioner] shot the victim. (Applicant's Exhibit #2). Trial Counsel conveyed the substance of the statements to [Petitioner] and discussed them with him. When asked why he did not confront Holmes with Randall's affidavit, Trial Counsel noted that Holmes did not state that [Petitioner] committed the crime. Trial Counsel additionally noted the affidavit was a synopsis of what Holmes told Randall, and not her own sworn statement. Trial Counsel explained that he would have needed to call Randall as a witness in order to get the affidavit in for a very small gain, and in the process would have lost the right to the final closing argument.
On cross-examination, Trial Counsel testified that during his March 1, 2013, meeting with [Petitioner], [Petitioner] indicated he did not wish to call witnesses in his own defense. With respect to Holmes, [Petitioner] opined that he did not want her due to her connections to the victim. On redirect examination, Trial Counsel acknowledged that Holmes testified no ill words were exchanged between [Petitioner] and the victim prior to the shooting.ECF No. 19-2 at 102-03.
Petitioner also testified at the PCR hearing about Holmes. He testified that Holmes could have testified that Petitioner was not present at the club at all. ECF No. 19-2 at 63-64. Petitioner testified that he told Trial Counsel to cross-examine Holmes to show that she was lying repeatedly, that she did not see him, and that he was not the shooter. ECF No. 19-2 at 64. Petitioner acknowledged that he discussed Holmes's first statement to police in the 911 call and her statements to the private investigator with Trial Counsel, but Petitioner denied ever discussing Holmes's statement to the solicitor's office. ECF No. 19-2 at 64-66.
After considering the testimony, judging the credibility of the witnesses, and reviewing the materials presented, the PCR Judge found that Petitioner failed to demonstrate Trial Counsel was ineffective with his handling of Holmes. The PCR Judge found:
The Court finds [Petitioner] has failed to meet his burden of showing ineffectiveness. [Petitioner's] claim appears to take two forms: failure to adequately cross-examine Holmes with her prior statements, and failure to elicit from her more favorable testimony.
[]
As to Trial Counsel's use of Holmes' first statement to authorities, he did confront Holmes with her initial statements to first responders, which she ultimately admitted, such that he could not have introduced any extrinsic evidence of the first statement. As to Trial Counsel's use of Holmes' statement to the private investigator, Holmes['s] testimony was largely consistent, such that her prior consistent statement would have constituted hearsay. Additionally, Trial Counsel articulated a valid strategic reason to not introduce the statement to the private investigator-it was of limited value to his client and would have cost him the final argument. As to Trial Counsel's use of Holmes' second statement to authorities, the summation provided to Trial Counsel inculpated his client more than Holmes' trial testimony, where she never identified [Petitioner] as the shooter, such that any attempt to bring it in would have doubtlessly harmed [Petitioner's] defense.
[]
As to Trial Counsel's failure to elicit more favorable testimony, attorneys cannot choose the facts available to them or make a witness testify in a particular fashion. Holmes testified in a reasonably consistent manner that [Petitioner] was present at the club on the night of the shooting, was armed with a gun, and was in the proximate vicinity of the victim. There is nothing before this Court to suggest she was ever a potential alibi witness. Assuming for the sake of argument that Holmes repeatedly fabricated a story and could today provide [Petitioner] an alibi, she did not testify at the evidentiary hearing as would be necessary for [Petitioner] to meet his burden of proving so.
[]
Finally, it is difficult to discern how any change in Holmes' testimony, realistic or fantastic, could have changed the outcome at trial where the other evidence which would have been unaffected conclusively pointed to [Petitioner's] guilt: Cameron Green testified [Petitioner] confessed to shooting Myers while being assailed by Lavern[e], [Petitioner] himself confessed to law enforcement, and the bullet recovered from the victim was of the same caliber as the revolver identified by [Petitioner] as the one he used in the killing. For all of these reasons, the Court finds [Petitioner] has failed to demonstrate any deficiency in Trial Counsel's handling of Holmes as a witness, or any reasonable possibility that but for the deficiencies alleged the outcome at trial would have been different, and his request for relief by way of this allegation is DENIED.ECF No. 19-2 at 103-04 (paragraph breaks added for ease of reading).
Upon review, the undersigned finds that the PCR Judge did not apply Strickland unreasonably or base his adjudication on an unreasonable determination of the facts in finding Trial Counsel not ineffective. See 28 U.S.C. § 2254(d). In reviewing Trial Counsel's actions, there is a “‘strong presumption' that counsel ‘made all significant decisions in the exercise of reasonable professional judgement.'” Cullen, 563 U.S. at 196 (quoting Strickland, 466 U.S. at 689-90). This presumption requires the Court not only to “give the attorneys the benefit of the doubt, but [also] to affirmatively entertain the range of possible reasons [Petitioner's] counsel may have had for proceeding as they did.” Id. (internal citations and quotations omitted); see also Harrington, 562 U.S. at 110 (“Strickland [] calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind.”). Petitioner must overcome this presumption by showing that no fair-minded jurist could find one of those reasons to be sound trial strategy. See 28 U.S.C. § 2254(d); Harrington, 562 U.S. at 105 (“The question is whether there is any reasonable argument that counsel satisfied Strickland's standard.”).
Here, Trial Counsel's articulated reason for not introducing Holmes's statement to the private investigator was that the introduction of the statement (which was contained in an affidavit from the private investigator) would have been for a “very minor gain,” and would have lost their right to the final closing argument. ECF No. 19-2 at 35-36. Indeed, because the affidavit was a synopsis of what Holmes told the private investigator-and not her own sworn statement-Trial Counsel would have needed to call the private investigator as a witness to get the affidavit into evidence. The PCR Judge found, and the undersigned agrees, that declining to do this was a valid trial strategy and did not constitute deficient performance. See Senn v. Cartledge, No. CV 6:15-235-MGL-KFM, 2016 WL 806097, at *9 (D.S.C. Jan. 26, 2016) (finding Petitioner failed to show deficiency where Trial Counsel presented valid strategic reasons to not call a witness at trial because, inter alia, the defense would have lost the right to make the final closing argument had Trial Counsel called the witness), report and recommendation adopted, No. CV 6:15-235-MGL-KFM, 2016 WL 795931 (D.S.C. Feb. 29, 2016). Additionally, in Holmes's statement to the solicitor's office, she stated that she had actually seen Petitioner shoot the victim. ECF No. 19-2 at 33, 85. The PCR Judge found, and the undersigned agrees, that introducing this statement would have harmed, rather than helped, Petitioner's defense.
Nevertheless, Petitioner appears to contend that Trial Counsel should have put Holmes's three statements (the 911 call, the statement to the private investigator, and the statement to the solicitor's office) into the jury's focus, pointing out that Trial Counsel testified that it “possibly” would have been beneficial to juxtapose her statements against the 911 call, and that Trial Counsel testified “in a perfect world” it would have been helpful to show the different details in the statements. See ECF No. 21 at 10-11. Despite Trial Counsel's apparent concession that he could have done more in defending Petitioner, “Strickland does not guarantee perfect representation” but rather only a “reasonably competent attorney.” Harrington, 562 U.S. at 110 (noting that “there is no expectation that competent counsel will be a flawless strategist or tactician” and that “an attorney may not be faulted for a reasonable miscalculation or lack of foresight”); Bell v. Evatt, 72 F.3d 421, 429 (4th Cir. 1995) (“Standing alone, unsuccessful trial tactics neither constitute prejudice nor definitively prove ineffective assistance of counsel.”). Accordingly, the PCR Judge did not apply Strickland unreasonably or base his adjudication on an unreasonable determination of the facts in finding that Trial Counsel was not deficient. See 28 U.S.C. § 2254(d); Valentino, 972 F.3d at 580 (noting the question is not whether a federal court considers the state court's determination under the Strickland standard to be incorrect, but whether that determination was unreasonable); Wilson v. Greene, 155 F.3d 396, 404 (4th Cir. 1998) (“Decisions about what types of evidence to introduce ‘are ones of trial strategy, and attorneys have great latitude on where they can focus the jury's attention and what sort of mitigating evidence they can choose not to introduce.'” (citation omitted)).
Even if the undersigned were to assume Trial Counsel was deficient as to his handling of Holmes's testimony, Petitioner has failed to show prejudice. The PCR Judge found, and the undersigned agrees, that it is difficult to discern how any change to Holmes's testimony would have changed the outcome of the trial. The PCR Judge found that a change in Holmes's testimony would have had no effect on the other evidence that conclusively pointed to Petitioner's guilt, including: testimony from Cameron Green that Petitioner confessed to shooting the victim while being assailed by Laverne; Petitioner's own confession to shooting the victim; and the bullet recovered from the victim was of the same caliber as the revolver identified by Petitioner as the one he used in the killing. ECF No. 19-2 at 104. Given the above findings of fact, the PCR Judge's determination with regard to prejudice was not unreasonable. See 28 U.S.C. § 2254(e)(1); Evans, 220 F.3d at 312 (noting state court factual findings are given a presumption of correctness that can be rebutted only by clear and convincing evidence, and that 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 based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding); see also Bowman v. State, 809 S.E.2d 232, 246 (S.C. 2018) (agreeing there was no reasonable probability of a different result where there was overwhelming evidence of guilt, which supported the PCR Judge's determination that Petitioner had failed to establish prejudice). Thus, the PCR Judge did not apply Strickland unreasonably or base his adjudication on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); Valentino, 972 F.3d at 580 (noting the question is not whether a federal court considers the state court's determination under the Strickland standard to be incorrect, but whether that determination was unreasonable). Accordingly, the undersigned recommends that Respondent's Motion be granted as to Ground Four in the Petition.
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's Motion for Summary Judgment (ECF No. 20) be GRANTED and that the Petition be DISMISSED with prejudice.
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).