Opinion
C. A. 9:23-cv-03401-JDA-MHC
07-15-2024
Andra B. Jamison, Petitioner, v. Warden Peeples, Respondent.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
Petitioner Andra B. Jamison (“Petitioner”), a state prisoner proceeding pro se, seeks habeas relief pursuant to 28 U.S.C. § 2254. Respondent Warden Peeples (“Respondent”) filed a Motion for Summary Judgment, along with a Return and Memorandum (“Motion”). ECF Nos. 32, 33. Petitioner filed a Response in Opposition. ECF No. 44. 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
In January 2009, the Lexington County Grand Jury indicted Petitioner for felony driving under the influence (“DUI”) resulting in death. App. at 1305-06. The case was called for trial on October 12, 2009, before the Honorable R. Knox McMahon (“Trial Judge”). App. at 1-823. Petitioner was represented by attorneys Robert T. Williams and Benjamin A. Stitley (collectively, “Trial Counsel”). The jury found Petitioner guilty as charged. App. at 803. The Trial Judge sentenced Petitioner to eighteen years' incarceration and a fine of $10,000. App. at 821.
Citations to the appendix refer to the PCR appendix page numbers from the state court record. See ECF No. 32-1 at 2 (table of contents). Respondent cites to “ECF #1(bb) App. pp. 1259-1260” for the location of this information. It is unclear to what ECF No. 1(bb) refers, as the first docket entry is the Petition for a writ of habeas corpus, which does not have an attachment “bb.” See ECF No. 1. Respondent's citation to appendix pages 1259-60 is likewise erroneous, as these pages are transcript pages from Petitioner's PCR hearing. See App. at 1259-60. Indeed, much of Respondent's citations to the docket, record, or otherwise, appear to be incorrect and/or cite to other filings.
Petitioner timely appealed to the South Carolina Court of Appeals. In the direct appeal, Petitioner raised the following issue:
The trial judge erred in denying appellant's motion to suppress the state's blood test results because the vial of appellant's blood that was given to him at the hospital and later placed in the custody of the detention center where he was jailed was subsequently mysteriously unavailable when appellant requested his vial of blood three days later. The nonexistence of this vial of blood denied appellant his statutory right to obtain an independent blood test in the case and also prejudiced his case because sans the state's blood test results there was no forensic corroborative evidence that could be presented by the state, which in turn meant that there was insufficient evidence of proof beyond a reasonable doubt of appellant's guilt on the felony DUI charge.App. at 827. In an unpublished per curiam opinion, the South Carolina Court of Appeals found “the State denied [Petitioner] a reasonable opportunity to obtain testing of his blood sample, and therefore the trial court erred in admitting the results of testing the State performed on its sample of [Petitioner's] blood.” App. at 1310. However, the court further found the error was harmless and affirmed Petitioner's conviction. Id.; State v. Jamison, Op. No. 2012-UP-058 (S.C. Ct. App. filed February 1, 2012).
On April 9, 2012, the State filed a petition for writ of certiorari with Supreme Court of South Carolina, arguing the court of appeals had erred in finding error by the trial court. App. at 876-97. Petitioner likewise filed a petition for a writ of certiorari. App. at 899-913. The Supreme Court of South Carolina denied both petitions on August 23, 2013. App. at 965.
On July 10, 2014, Petitioner filed an application for post-conviction relief (“PCR”). App. at 966; see also App. at 1019. Petitioner alleged the following:
1. Trial Counsel's investigation was both inadequate and incomplete.
2. Trial [C]ounsel failed to interview any potential witnesses.
3. Trial counsel did not disclose to [Petitioner] that Counsel knew the family of the victim.
4. Trial Counsel failed to disclose to the defendant that Judge McMahon had a daughter working for the Lexington County Solicitor's Office.
5. Trial Counsel failed to object to the jury instructions regarding an erroneous reading.
6. Counsel's decision [to stipulate to the admission of the DUI on-site video, affidavit, breath test video, and certain photographs] was not reasonable.
7. Defense counsel failed to request a Jackson v. Denno hearing in regards to statements made by [Petitioner] on both DUI videos and to statements [Petitioner] made to the police and paramedics.
8. Defense Counsel failed to require the state to play the remainder of the on scene roadside video.
9. Defense Counsel accepted the judge's ruling and did not contemporaneously make an additional objection to the sufficiency of the curative charge.
10. Defense [C]ounsel did not properly explain whether or not he should testify at trial.
11. Neither Mr. Williams nor Mr. Stitely advised Mr. Jamison about whether they or the State had discussed plea negotiations and never discussed the availability of taking a plea.
12. Neither Mr. Williams nor Mr. Stitely advised Mr. Jamison about the need to consult with and retain independent expert witnesses to oppose the findings of the state's M.AJ.T. expert witnesses... Defense Counsel laid no foundation and introduced no evidence to the jury that Mr. Gamble died of a tragic accident or through some action of Mr. Gamble in causing the accident.
13. Defense Counsel failed to request a jury view of the crime scene.
14. Trial counsel was ineffective when he failed to argue that Petitioner had a statutory right to a reasonable opportunity to independent blood test and that right was denied when the blood was lost. This denial of independent blood testing necessitated dismissal of the case.
15. Trial counsel was ineffective for stipulating that the pictures of pavement marks because such stipulation relieved the state of its burden to prove that the accident happened in the bike Jane.
16. Appellate counsel was ineffective for failing to answer in reply of the state's harmless error claim.
17. Appellate counsel was ineffective for failing to argue that the State's failure to provide “reasonable opportunity for independent testing” was substantial error instead of harmless error.
18. Appellate counsel was ineffective for failing to request a rehearing at the Court of Appeals.App. at 1058-59.
On April 20, 2018, an evidentiary hearing was held before the Honorable William A. McKinnon (“PCR Judge”). App. at 1101. Petitioner was represented by Glenn Walters, Sr. (“PCR Counsel”). Representing the State of South Carolina was Assistant Attorney General Al Simon of the Office of the Attorney General. Petitioner, Trial Counsel, and Jeremy Thompson (“Appellate Counsel”) testified during the hearing. App. at 1101-1302.
On August 29, 2018, the PCR Judge issued an order of dismissal. App. at 1056-71. Petitioner submitted a motion to alter or amend, for a new trial, or for a judgment notwithstanding the verdict. App. at 1072-77. The PCR Judge denied this motion in December 2018. App. at 109092.
On January 11, 2019, Petitioner filed a notice of appeal before the Supreme Court of South Carolina. App. at 1093-94. Petitioner subsequently filed a petition for writ of certiorari on October 9, 2019. ECF No. 32-16. Pursuant to Rule 243(1), SCACR, the petition was transferred to the South Carolina Court of Appeals on October 30, 2020. ECF No. 32-17. On June 7, 2023, the Court of Appeals dismissed the petition for writ of certiorari. ECF No. 32-18. According to Respondent, the remittitur was delivered to the Lexington County Clerk of Court's Office on June 23, 2023, and filed on June 29, 2023. ECF No. 32 at 7.
These filings do not appear to be among the attachments to Respondent's Return. Respondent cites to “ECF #7” as the location of this document. See ECF No. 32 at 7. It is unclear to what Respondent is citing, as ECF No. 7 on the docket is a docket entry signifying the mailing of a previous Report and Recommendation. See ECF No. 7.
On October 23, 2023, Petitioner filed the current petition for a writ of habeas corpus. ECF No. 1. Petitioner raises the following Grounds for relief:
GROUND ONE: The State denied the Petitioner a reasonable opportunity to independent blood testing as per § 56-5-2946, 2950. Petitioner [is] actually innocent, there's a miscarriage of justice.
Supporting Facts: South Carolina Court of Appeals ruled that the State denied the Petitioner a reasonable opportunity to independent blood testing. S.C. Supreme Court affirmed. The State lost the Petitioner's blood sample intended for his independent blood testing after it was placed in their custody. The State used their illegal blood test result to gain a conviction, where there was no legal evidence admitted proving intoxication beyond a reasonable doubt.
GROUND TWO: The Court erred in admitting the results of testing the State performed on their sample of Petitioner's blood, creating a miscarriage of justice.
Supporting Facts: The S.C. Court of Appeals correctly ruled that trial court erred in admitting the results of testing that the state performed on its sample of the Petitioner's blood as per statute (§ 56-5-2946, 2950). S.C. Supreme Court affirmed. The State failed to present any evidence that conclusively proved that the Petitioner drove a vehicle while over the legal limit of intoxication. The S.C. Court of Appeals and S.C. Supreme Court ruled incorrectly that Ground One and Ground Two were harmless.
GROUND THREE: The court erred by failing to rule on Summary Judgment that S.C. failed its Constitutional duty to prove all elements of Felony DUI/Death beyond a reasonable doubt.
Supporting Facts: The State failed its Constitutional duty to prove all elements of Felony DUI/Death beyond a reasonable doubt. No competent evidence legally admitted capable of proving illegal concentration level of .08 as per statute. No eyewitnesses to consumption of alcohol, no admission to drinking alcohol, no open container charge, no eyewitness to driving before accident. Aside from illegal blood test the State put forth, no evidence proving driving under the influence of alcohol conclusively.
GROUND FOUR: Trial Judge committed constitutional error when he failed to disclose that his daughter worked in the Lexington County 11th Circuit as an Assistant Solicitor and neglected to offer the opportunity to have himself recused as he had done before.
Supporting Facts: Trial Judge wrote the advisory committee seeking guidance on presiding in the 11th Circuit where his daughter was an Assistant Solicitor. Trial Judge failed to disclose, and give the opportunity to have himself recused as advised or like he's done in the past, because of his daughter working in 11th Circuit. Trial Judge's sworn statement in transcript of public hearings merit selection commission dated 11/15/2011 Exhibit #27 Question #6 concerning his philosophy on recusal with his daughter in the 11th Circuit was to disclose to each party and withdraw if either objects.ECF No. 1 at 5-10 (errors in original).
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.
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”). “Section 2254(d)(1) describes the standard of review to be applied to claims challenging how the state courts applied federal law, while § 2254(d)(2) describes the standard to be applied to claims challenging how the state courts determined the facts. Both provisions direct federal courts to assess the reasonableness of the state court determinations, and both assessments must be made in light of the evidence the state courts had before them.” Winston v. Kelly, 592 F.3d 535, 553 (4th Cir. 2010).
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).
A state court's decision is contrary to clearly established federal law under § 2254(d)(1) 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). “In order for a state court's decision to be an unreasonable application of [the Supreme] Court's case law, the ruling must be objectively unreasonable, not merely wrong; even clear error will not suffice.” Virginia v. LeBlanc, 582 U.S. 91, 94 (2017) (citation and internal quotation marks omitted).
A similar analysis applies to § 2254(d)(2). “For a state court's factual determination to be unreasonable under § 2254(d)(2), it must be more than merely incorrect or erroneous.” Winston, 592 F.3d at 554. Thus, “the question is not whether the state court's determination was incorrect but whether it is ‘sufficiently against the weight of the evidence that it is objectively unreasonable.'” Allen v. Stephan, 42 F.4th 223, 246 (4th Cir. 2022) (citation omitted), cert. denied sub nom. Chestnut v. Allen, 143 S.Ct. 2517 (2023). 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). To be clear, § 2254(e)(1) “does not concern itself with the reasonableness of factual determinations by the state courts but with the correctness or incorrectness of those determinations.” Winston, 592 F.3d at 554 (noting the “apparent tension” between §§ 2254(d)(2) and (e)(1) and noting both sections provide “independent requirements” for federal habeas review). Consequently, to secure habeas relief, a petitioner must “demonstrate that a state court's factual finding was incorrect by clear and convincing evidence, 28 U.S.C. § 2254(e)(1), and that it was ‘objectively unreasonable' in light of the record before the court.” Id. at 555 (cleaned up) (quoting Miller-El v. Cockrell, 537 U.S. 322, 348 (2003)).
III. DISCUSSION
Respondent argues the Petition should be dismissed because Petitioner has failed to raise cognizable claims addressable in a federal habeas petition. Specifically, Respondent argues that each Ground raised by Petitioner alleges a violation of South Carolina state law, such that he has failed to show he is being held in violation of the United States Constitution or any federal law. ECF No. 32 at 20-23.
A state prisoner collaterally attacking his state conviction in federal court must show he is in custody in violation of federal law. See 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (noting “it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts” (emphasis in original)). Indeed, § 2254(a) “unambiguously provides that a federal court may issue the writ to a state prisoner ‘only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'” Wilson, 562 U.S. at 5 (quoting 28 U.S.C. § 2254(a)). Thus, a federal habeas petition that does not assert a violation of the Constitution, laws, or treaties of the United States, does not present a cognizable claim to a federal court conducting federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (emphasizing that “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions,” but rather habeas review is “limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States”).
For the reasons that follow, Respondent is entitled to summary judgment, although not for every reason Respondent argues. The Court turns to each Ground raised in the Petition.
Although Respondent's position is that all Grounds raised are state law matters, Respondent also appears to assert that Petitioner has also failed to show the Trial Judge's decision was based on an unreasonable determination of facts under § 2254(d)(2). ECF No. 32 at 23-24. However, to the extent Respondent may be arguing otherwise, this Court cannot review state law matters for unreasonableness under § 2254(d)(2). Section 2254(d)(2) “allows habeas petitioners to avoid the bar to habeas relief imposed with respect to federal claims adjudicated on the merits in state court by showing that the state court's decision was ‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Wilson, 562 U.S. at 5-6 (emphasis added). This provision “does not repeal the command of § 2254(a) that habeas relief may be afforded to a state prisoner ‘only on the ground' that his custody violates federal law.” Id. (emphasis added). Thus, if a claim does not raise issues of federal law (and is therefore not cognizable), § 2254(d)(2) does not somehow provide an avenue for a federal court to review a state court's factual determinations that underly the state law holding.
A. Grounds One and Two
Petitioner's Ground One and Two both deal with the blood samples collected from Petitioner on the night he was arrested for DUI. Specifically, Ground One maintains that the “State” denied Petitioner a reasonable opportunity to independently test the blood sample pursuant S.C. Code Ann. §§ 56-5-2946 and -2950. Ground Two argues that the Trial Judge erred by admitting the results of the testing conducted by the State. Neither Ground presents a cognizable claim for relief.
Regarding Ground One, Petitioner argues that his rights under a state statute were violated by the prosecutors in his case. Because this Ground fails to assert a violation of the Constitution, laws, or treaties of the United States, it is not cognizable for federal habeas review. See Estelle, 502 U.S. at 67-68 (emphasizing that “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions,” but rather habeas review is “limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States”). Whether Petitioner's rights under state statute were violated are, clearly, matters of state law and are not addressable in a federal habeas petition. See id.; Humphries v. Ozmint, 397 F.3d 206, 226 (4th Cir. 2005) (noting Petitioner was “raising an issue of state law, which is not cognizable on federal habeas review”).
As to Ground Two, Petitioner presents a question of state evidentiary law and the admissibility of evidence, which are generally considered state law matters. See Spencer v. Murray, 5 F.3d 758, 762 (4th Cir. 1993) (“[A] claim about the admissibility of evidence under state law rarely is a claim upon which federal habeas corpus relief can be granted.”). Absent a claim that the admission of the evidence ran afoul of Petitioner's constitutional rights, this Ground is not cognizable in a federal habeas proceeding. See Burket v. Angelone, 208 F.3d 172, 186 (4th Cir. 2000) (“In federal habeas actions, we do not sit to review the admissibility of evidence under state law unless erroneous evidentiary rulings were so extreme as to result in a denial of a constitutionally fair proceeding.” (emphasis added)); see also Barbe v. McBride, 521 F.3d 443, 452 (4th Cir. 2008) (“It is only in circumstances impugning fundamental fairness or infringing specific constitutional protections that a federal question is presented.” (citation omitted)).
Here, as a general matter, this Ground fails to assert a violation of the Constitution, laws, or treaties of the United States, such that it is not cognizable for federal habeas review. See Estelle, 502 U.S. at 67-68. Furthermore, Petitioner does not argue that this error was so extreme that it ran afoul of his constitutional right to due process. See Burket, 208 F.3d at 186; Moulton v. Cartledge, No. 6:14-CV-2666 DCN, 2015 WL 2357263, at *6 (D.S.C. May 15, 2015) (noting “the only proper inquiry, if any, is whether the admission of the evidence itself so infected the entire trial that the resulting conviction violated due process”). Indeed, the South Carolina Court of Appeals found that, to the extent the Trial Judge erred in admitting the results of the testing, such error was harmless because Petitioner's intoxication was demonstrated by other evidence introduced at trial. See App. at 1310. Accordingly, Petitioner has failed to show the Trial Judge's error was “so extreme” that it implicated federal due process concerns. See, e.g., Burket, 208 F.3d at 186 (“[E]ven if the Virginia Supreme Court's evidentiary ruling was erroneous, the ruling was not so extreme as to result in the denial of a constitutionally fair proceeding.”); Johnson v. Warden, Broad River Corr. Inst., No. CV 0:22-3210-CMC-PJG, 2023 WL 4349151, at *4 (D.S.C. May 4, 2023) (finding Grounds that argued a trial court erred in admitting evidence raised a state evidentiary law issue-rather than an issue of federal law-and that the petitioner failed to show the alleged error violated federal law), report and recommendation adopted, No. CV 0:22-3210-CMC, 2023 WL 4196935 (D.S.C. June 27, 2023), appeal dismissed, No. 23-6753, 2024 WL 1405886 (4th Cir. Apr. 2, 2024).
B. Ground Three
Petitioner's Ground Three argues that the Trial Judge erred in failing to “grant summary judgment” because the State failed to prove its case beyond a reasonable doubt. Thus, Petitioner appears to argue that the State failed to show the necessary elements for a felony DUI conviction under South Carolina law. See ECF No. 1 at 8.
Construing the Petition liberally, this Ground challenges the sufficiency of the evidence.Challenges to the sufficiency of the evidence are cognizable on collateral review; “however, a federal court's review of such claims is ‘sharply limited.'” Wilson v. Greene, 155 F.3d 396, 405 (4th Cir. 1998) (citation omitted). “Federal review of the sufficiency of the evidence to support a state court conviction is not meant to consider anew the jury's guilt determination or to replace the state's system of direct appellate review.” Id. at 405-06. When reviewing such a claim, a federal court must consider both circumstantial and direct evidence and presume the jury resolved any conflicts in the State's favor. Jackson v. Virginia, 443 U.S. 307, 326 (1979). Thus, a petitioner “is entitled to relief only if ‘no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'” Wilson, 155 F.3d at 406 (quoting Jackson, 443 U.S. at 324); see also George v. Angelone, 100 F.3d 353, 357 (4th Cir. 1996).
Respondent appears to assert that Petitioner's Ground Three is not cognizable on federal habeas review because Petitioner is raising a claim that pertains to South Carolina's DUI statute. See ECF No. 32 at 20, 23 (arguing that “none” of the grounds raised pertains to the Constitution or federal law). This position, however, was rejected by the Supreme Court nearly forty-five years ago. See Jackson v. Virginia, 443 U.S. 307, 321 (1979) (noting “it is clear that a state prisoner who alleges that the evidence in support of his state conviction cannot be fairly characterized as sufficient to have led a rational trier of fact to find guilt beyond a reasonable doubt has stated a federal constitutional claim” and that “such a claim is cognizable in a federal habeas corpus proceeding”).
“The Jackson standard ‘must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.'” Wilson, 155 F.3d at 406 (quoting Jackson, 443 U.S. at 324 n. 16). In South Carolina, felony DUI occurs when:
A person who, while under the influence of alcohol, drugs, or the combination of alcohol and drugs, drives a motor vehicle and when driving a motor vehicle does any act forbidden by law or neglects any duty imposed by law in the driving of the motor vehicle, which act or neglect proximately causes great bodily injury or death to another person[.]S.C. Code Ann. § 56-5-2945(A).
Here, Petitioner has failed to show that no rational trier of fact could have found him guilty of felony DUI. As set forth in Respondent's Return, there was ample evidence upon which a jury could (and did) find him guilty of the indicted offense. At trial, a Mr. Randall Todd Fitzgerald (a bystander to the accident), testified he walked up to Petitioner and observed that Petitioner seemed very confused, disoriented, and appeared intoxicated. App. at 701. Mr. Fitzgerald further testified that Petitioner smelled of alcohol, was staggering, had glassy eyes, and was too intoxicated to tell him what had happened. App. at 700-02. Officer Michael Stone testified that he observed Petitioner as unsteady on his feet, had slurred speech, and smelled of alcohol. App. at 170-71. EMS worker Daniel Boyce testified that Petitioner appeared intoxicated, smelled of alcohol, and his speech was so slurred that Mr. Boyce had difficulty understanding him. App. at 607-08. Officer Adam Smith also testified that Petitioner's speech was slurred, he had a strong odor of alcohol, and was unsteady on his feet. App. at 285. Detective John Reece testified that he observed a beer bottle under Petitioner's vehicle. See App. at 426. He also found two twelve-packs of beer, with one package open and missing several bottles. App. at 435-36. All the above serves as sufficient evidence to support the jury's finding that Petitioner was intoxicated when he hit the victim with his vehicle, causing the victim's death. The Court of Appeals agreed, finding-even if his blood test was excluded-his intoxication was demonstrated by other evidence introduced at trial. See App. at 1310.
Taking all the above into account, Petitioner has failed to show that no rational trier of fact could have found him guilty of felony DUI. Thus, the Court of Appeals' dismissal of his appeal was not contrary to, nor an unreasonable application of, clearly established federal law, nor was it based upon an unreasonable determination of facts in light of the record at trial. See Coleman v. Johnson, 566 U.S. 650, 656 (2012) (“The jury in this case was convinced, and the only question under Jackson is whether that finding was so insupportable as to fall below the threshold of bare rationality. The state court of last review did not think so, and that determination in turn is entitled to considerable deference under AEDPA, 28 U.S.C. § 2254(d).”).
C. Ground Four
Petitioner's Ground Four alleges that the Trial Judge “committed constitutional error” by not informing the parties that his daughter worked for the Eleventh Circuit Solicitor's Office. This claim fails for two reasons.
First, it is unclear what “constitutional error” the Trial Judge committed, and Petitioner does not clarify or otherwise show how this alleged failure amounts to a violation of the Constitution, laws, or treaties of the United States. Indeed, as Respondent argues, it appears that Petitioner is taking issue with the Trial Judge allegedly running afoul of South Carolina's Rules and Codes of Judicial Conduct. See ECF No. 32 at 21 nn. 6-7. Petitioner does not contest this assertion in his Response in Opposition. Thus, this claim does not appear to be cognizable for federal habeas review. See Estelle, 502 U.S. at 67-68.
Second, to the extent Petitioner is attempting to raise the claim that his Trial Counsel was ineffective for failing to apprise him of this potential conflict of interest, that claim fails. Indeed, the PCR Judge considered this issue as follows:
Applicant claims the trial judge had a conflict of interest because his daughter and his son-in-law worked for the Eleventh Circuit Solicitor's Office. Applicant further argues that the alleged conflict was not disclosed before trial, and that he would have asked Judge McMahon to recuse himself if he had known.
First, Applicant's claim that Judge McMahon had a conflict of interest because of his son-in-law is wholly without merit. There could not have possibly been a conflict because Judge McMahon's son-in-law did not start working for the Eleventh Circuit Solicitor's Office until almost two years after Applicant's trial.
Second, this court finds that Judge McMahon did not have a conflict based on his daughter's employment with the Eleventh Circuit Solicitor's Office. This finding is based on an opinion from the Advisory Committee on Standards of Judicial Conduct, issued on November 28, 2011; holding that “[a] circuit court judge may preside in criminal matters where the judge's daughter and son-in-law are employed by branches of the solicitor's office that do not appear before the circuit court.”
At the PCR hearing, Applicant failed to produce any evidence that established Judge McMahon's daughter was practicing in General Sessions Court during the time of Applicant's trial in October 2009. In fact, trial counsel testified that Judge McMahon's daughter only appeared in family court for juvenile matters at the time of Applicant's trial. Thus, Judge McMahon did not have a conflict of interest in hearing this case. Any motion to recuse Judge McMahon based upon his daughter's employment would have been without merit. Thus, Applicant is not entitled to relief upon this claim. See generally Ladd v. Jones, 864 F.2d 108, 110 (11th Cir. 1989) (holding where “claims were meritless, it was clearly not ineffective for counsel not to pursue them”). For these reasons, the Court denies and dismisses this allegation.App. at 1063-64 (footnote omitted).
Upon review, the undersigned finds that the state court did not apply Strickland unreasonably or base its 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).
The PCR Judge found that no conflict existed based on his reading of an opinion from the Advisory Committee on Standards of Judicial Conduct. The PCR Judge also noted that Petitioner failed to produce any evidence that established the Trial Judge's daughter was even practicing in General Sessions Court during the time of Petitioner's trial in October 2009. Further, the PCR Judge found Trial Counsel credibly testified that the Trial Judge's daughter only appeared in family court for juvenile matters at the time of the trial. This Court is bound by the underlying factual determinations noted above unless Petitioner can rebut them by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); see also McWee v. Weldon, 283 F.3d 179, 186 (4th Cir. 2002) (“This determination of fact made by the state court is presumed correct, see 28 U.S.C. § 2254(e)(1), and McWee has not attempted to rebut this presumption with clear and convincing evidence.”). He has failed to do so. Consequently, the PCR Judge did not apply Strickland unreasonably or base his adjudication on an unreasonable determination of the facts in finding that Petitioner failed to show his Trial Counsel was ineffective. See 28 U.S.C. § 2254(d); Valentino, 972 F.3d at 580. Accordingly, the undersigned recommends that Respondent's Motion be granted as to this Ground in the Petition.
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's Motion for Summary Judgment (ECF No. 33) be GRANTED and that the Petition be DISMISSED with prejudice.
The parties are directed to the next page for their rights to file objections to this recommendation.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court Post Office Box 835 Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).