Opinion
2:22-cv-351-DCC-MGB
10-07-2022
Manuel A. Marin, Petitioner, v. Warden of Lieber Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Manuel A. Marin, a state prisoner proceeding pro se, seeks habeas corpus under 28 U.S.C. § 2254. (Dkt. No. 1.) This matter is before the Court on the Warden's Motion for Summary Judgment. (Dkt. No. 24.) Under 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), the undersigned is authorized to rule on any pretrial motions and to make recommendations to the District Judge on the summary judgment motion.
For the reasons set forth below, the undersigned recommends granting the Warden's motion and dismissing this case with prejudice.
BACKGROUND
In August 2008, a Spartanburg County Grand Jury indicted Marin for murder and possession of a firearm during the commission of a violent crime. (Dkt. No. 23-6 at 38-39.) On October 25-27, 2010, Marin, who was represented by Tanya R. Jones, Esq. (“trial counsel”), was tried before the Honorable J. Derham Cole and a jury. (Dkt. No. 23-1 at 4 through Dkt. No. 23-2 at 102.) The jury found Marin guilty as charged. (Dkt. No. 23-2 at 91-93.) Judge Cole sentenced Marin to life imprisonment for the murder conviction. (Id. at 101.)
Because a life sentence was imposed for murder, no sentence was imposed for the possession of a firearm conviction, pursuant to S.C. Code Ann. § 16-23-490.
Marin appealed. In his direct appeal, Marin was represented by Robert M. Dudek, Chief Appellate Defender with the South Carolina Commission on Indigent Defense, Division of Appellate Defense (“appellate counsel”), who filed a brief raising the following issues:
1.
Whether the court erred by refusing to instruct the jury on self-defense that a defendant acting in self-defense had the right to continue shooting until it was apparent that the danger of death or serious bodily injury had ended since this was a widely accepted correct instruction on the law, and appellant had a right to have the instruction crafted to the facts of the case?
2.
Whether the court erred by refusing to charge South Carolina Code § 16-11-450(a) that a person protected by the Castle Doctrine who was acting lawfully was immune from criminal or civil prosecution, since the judge erred by refusing to give a full jury instruction on the Castle Doctrine where it was raised by the evidence in this case?(Dkt. No. 23-2 at 108.) The State filed a brief, as well. (Id. at 123-63.) In an opinion filed July 3, 2013, the South Carolina Court of Appeals affirmed Marin's convictions and sentence. (Id. at 164-72.) Appellate counsel filed a petition for rehearing, which was denied. (Id. at 173-79.)
Following that, Dudek and David Alexander, an appellate defender with the South Carolina Commission on Indigent Defense, Division of Appellate Defense, filed a petition for writ of certiorari in the South Carolina Supreme Court asking, “Whether petitioner was entitled to a jury charge on a correct statement of law fitting the facts of this self-defense case: that one acting in self-defense has the right to continue shooting until it was apparent that the danger of death or serious bodily injury had ended?” (Id. at 180-85; Dkt. No. 23-3 at 4-12.) The State filed a return. (Dkt. No. 23-3 at 14-42.) The petition for writ of certiorari was granted. (Id. at 43.) Thereafter, the parties filed separate briefs. (Id. at 45-88.) On March 23, 2016, the South Carolina Supreme Court modified but affirmed the decision of the court of appeals. (Id. at 89101.) The matter was remitted to the lower court on April 8, 2016. (Id. at 102.)
On July 28, 2016, Marin filed an application for post-conviction relief (“PCR”) in state court, alleging ineffective assistance of trial and appellate counsel, prosecutorial misconduct, and errors by the state trial and appellate courts. (Dkt. No. 23-3 at 103-34.) Marin, who was then represented by James H. Price, III, Esq. (“PCR counsel”), subsequently amended his claims multiple times. (Id. at 135-59.) The Honorable Grace Gilchrist Knie held a hearing on the application on February 1, 2018. (Id. at 177-78.) Marin was represented by PCR counsel at the hearing, at which time the following witnesses testified: Marin, trial counsel, a law enforcement officer who testified at Marin's trial, a crime scene analysis expert, and an attorney who represented the State in the direct appeal. (Dkt. No. 23-3 at 177 through Dkt. No. 23-4 at 145.) In an order filed June 5, 2018, the PCR court rejected Marin's claims and denied his PCR application. (Dkt. No. 23-6 at 9-36.)
Marin appealed. In his PCR appeal, Marin was represented by Ashley A. McMahan, who filed a Johnson petition for writ of certiorari. (Dkt. No. 23-7.) The single issue raised in the Johnson petition was as follows: “Did the PCR court err in finding trial counsel was effective when counsel failed to call an expert witness regarding self defense?” (Id. at 3.) Marin filed a pro se brief outlining additional claims of error by the PCR court. (Dkt. No. 23-8.) The state supreme court transferred the case to the court of appeals. (Dkt. No. 23-9.) That court denied certiorari and granted PCR appellate counsel's request to withdraw on November 2, 2021. (Dkt. No. 23-10.) It issued the remittitur on November 18, 2021, and the circuit court filed the remittitur on November 23, 2021. (Dkt. No. 23-11.)
PCR appellate counsel filed the petition pursuant to Johnson v. State, 364 S.E.2d 201 (1988), indicating that, in her opinion, the appeal was without legal merit, and further moving to be relieved as counsel. (Dkt. No. 23-7 at 13.)
PROCEDURAL HISTORY
Marin filed his pro se habeas petition in February 2022. (Dkt. No. 1.) In his petition, Marin raises the following grounds for relief (supporting facts excerpted verbatim from habeas petition attachment):
Ground One: Suppression of Exculpatory Evidence (Violation of Due Process of Law)
Supporting Facts: During the PCR hearing Petitioner's counsel presented to the court, chain of custody forms sending a steering wheel cover to SLED.
The forms requested DNA analysis of the cover to be compared with the victim and Petitioner. (App. p. 918919).
At the request of Petitioner's counsel, the PCR court issued an Order of Discovery requiring SLED to provide writen confirmation as to whether any DNA analysis of the steering wheel cover (SLED Lab No.: L08-11693) was ever performed. (App. p. 671-672).
Pursuant to the Order, SLED provided a letter to the effect that the matter was sent back to Spartanburg County Sheriff's Office's Investigator Demetric Glen (App. p. 917).
In the aforementioned letter SLED informed Investigator Demetric Glen that their protocol was not followed, and requested that a blood sample, or bucal swab be submitted for comparison purposes: “Please submit a bucal swab (preferred) or liquid blood from the subject(s) for comparison purposes.
If the requested DNA standards are not submitted within three months, the evidence will be returned to the submitting agency without analysis.” (App. p. 917).
Which is exactly what occurred. No further action was performed. The State neglected to, or failed to submit the requested samples for DNA analysis on SLED Lab No.: L08-11693 (steering wheel cover)....
Ground Two: Ineffective Assistance of Trial Counsel
Supporting Facts: During the State's closing argument, the State's only argument that Petitioner was guilty of malice murder was the fact that Petitioner fired two shots instead of one. ....
Absent an objection by trial counsel, and absent an exmero motu curative instruction by the trial judge, the jury took this submission of wrongful law by the prosecutor into deliberations with the assertion that Petitioner was guilty of malice murder because two shots were fired instead of one....
Ground Three: Ineffective Assistance of Trial Counsel
Supporting Facts: Trial counsel Tanya R. Jones was ineffective when she failed to object to prosecutor's highly prejudicial closing argument that the Petitioner would not stop the vehicle while being attacked by the victim, thereby negating his no duty to retreat....
Ground Four: Ineffective Assistance of Appellate Counsel
Supporting Facts: Chief appellate defender was ineffective when he failed to raise the issue on the directed verdict on self-defense....Self defense was proven in this case as a matter of law and the Appellate court could have ruled that trial court erred in not granting the Directed Verdict.
Ground Five: Prosecutorial Misconduct
Supporting Facts: Prosecutor Ghent abused his discretion and committed prosecutorial misconduct by misstating and injecting disinformation into the State's brief to the Court of Appeal, and the Supreme Court in orde[r] to create bias, and prejudice against Petitioner, and to introduce the element of malice in order to obstruct Petitioner's claims on his appeal.(Dkt. No. 1 at 5, 7, 8, 10; Dkt. No. 1-2 at 6-7, 12, 17, 20-21, 22.) On July 15, 2022, the Warden filed a return and motion for summary judgment. (Dkt. Nos. 23, 24.) Marin filed a response in opposition to the motion for summary judgment on August 22, 2022. (Dkt. No. 30.) On September 7, 2022, the Warden filed a reply. (Dkt. No. 35.)
The motion is ripe for habeas review.
LEGAL STANDARD
Habeas corpus in federal court exists to “guard against extreme malfunctions in the state criminal justice systems.” Harrington v. Richter, 562 U.S. 86, 102 (2011) (citation and internal quotation marks omitted). Federal habeas is neither an alternative to state-court relief nor an additional chance to appeal erroneous state-court rulings. See id. That preference for, and deference to, state courts is borne out in the various constraints placed on federal courts. See Shoop v. Hill, 139 S.Ct. 504, 506 (2019) (per curiam) (stating § 2254 “imposes important limitations on the power of federal courts to overturn the judgments of state courts in criminal cases”); see also Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (stating § 2254 “reflect[s] a presumption that state courts know and follow the law” (citation and internal quotation marks omitted)).
For instance, state prisoners who challenge matters “adjudicated on the merits in State court” cannot get relief in federal court unless they show that the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law” announced by the Supreme Court or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” § 2254(d). That means a state court's ruling must be “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. Federal courts must also defer to state courts' factual determinations, which are presumed correct until the prisoner rebuts that presumption with clear and convincing evidence. § 2254(e)(1).
In addition, before state prisoners may try to clear those high hurdles, two rules steer them to first pursue all relief available in the state courts. See § 2254(b)(1). The first, known as exhaustion of remedies, requires a prisoner to present his claims to the highest state court with jurisdiction to decide them. Stewart v. Warden of Lieber Corr. Inst., 701 F.Supp.2d 785, 790 (D.S.C. 2010). A federal court cannot grant a prisoner's habeas corpus petition until he exhausts his state-court remedies. § 2254(b)(1), (c). The second rule, called procedural default, comes into play when a prisoner failed to present a claim to the state courts at the appropriate time and has no means of doing so now. Stewart, 701 F.Supp.2d at 790. Federal courts may not consider a procedurally defaulted claim unless the prisoner shows either that he has cause for defaulting and that the alleged violation of federal law prejudiced him or that not addressing the claim would be a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
The ultimate issue in this case is, of course, whether Marin should receive habeas relief under these standards. However, the Warden's summary judgment motion and briefing presents narrower questions. Summary judgment is appropriate only if the moving party shows that “there is no genuine dispute as to any material fact” and that he is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Rule 12, Rules Governing § 2254 Cases (stating courts may apply in habeas cases any of the Federal Rules of Civil Procedure to the extent they are not inconsistent with statutes or the § 2254 rules). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Viewing the habeas rules through the lens of Rule 56, the Court has three questions to answer at this juncture:
(1) Are there genuine issues of fact as to whether Marin's claims are properlybefore the Court?
(2) Are there genuine issues of fact as to the merits of Marin's claims?
(3) If the answer to either (or both) of the first two questions is “no,” is the Warden entitled to judgment as a matter of law?
In answering those questions, the undersigned has carefully considered the record before the Court.
DISCUSSION
The Warden contends that Marin's habeas petition is timely and that he exhausted his state-court remedies. (Dkt. No. 23 at 6-7.) Thus, the petition is properly before the Court.
Furthermore, according to the Warden, Grounds One through Four of the petition were properly raised to and ruled upon by the state courts during Marin's PCR action. (Id. at 7.) Ground Five, on the other hand, was found to be procedurally barred by the PCR court, and, as such, the Warden argues it is procedurally barred here, as well. (Id.) The Court addresses each of the grounds below. However, first, it is helpful to review the facts presented at Marin's trial as found by the South Carolina Supreme Court:
On July 20, 2008, both Marin and Nelson Tabares (Victim) attended a Colombian Independence Day festival, followed by an after-party at a Greenville nightclub. According to Christopher McDonald, the nightclub's bouncer, Victim was extremely intoxicated and had difficulty standing and walking, but was not
aggressive. Due to Victim's condition, nightclub staff members, including McDonald and owner Larry Rodriguez, determined that it would not be safe for Victim to drive. As a result, McDonald and Rodriguez attempted to find Victim a ride home.FN1
FN1. Rodriguez testified that Victim was not drunk, but merely ill. However, tests taken after his death revealed that Victim's blood-alcohol concentration was 0.323%, more than four times the legal limit to drive a motor vehicle. See S.C. Code Ann. § 56-5-2933(A) (Supp. 2015) (making it unlawful to drive a motor vehicle with a blood-alcohol concentration of 0.08% or higher).
Marin told McDonald that he knew where Victim lived and volunteered to drive Victim home. However, after McDonald helped Victim into the back seat of Marin's vehicle, Marin said that he needed Victim's address so that he could put it in his navigation system. McDonald looked at Victim's identification and gave the address to Marin. Marin, accompanied in the front seat by his former brother-in-law, Alfredo Jimenez, then began driving Victim home.
Marin testified that Victim was unruly and combative during the drive. According to Marin, Victim told him, “I'm sorry, but you got to go,” then reached over the backseat and placed him in a headlock. Marin said he then decided not to take Victim home, but to drive to a public location and seek help. Marin further testified that Victim attempted to grab the steering wheel. However, Jimenez stated that Victim became upset and began fighting with Marin over control of the steering wheel after Marin drove past the road on which Victim's home was located and would not stop.FN2
FN2. While Jimenez did not testify at trial, his statements were admitted into evidence as excited utterances. See Rule 803(a), SCRE (excepting from the prohibition against hearsay “statement[s] relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition”).
It is undisputed that Marin drove into Spartanburg County, retrieved a gun from the glove compartment, and shot Victim twice in the back of the head. Rather than stopping immediately, Marin continued driving until he arrived in downtown Spartanburg. Several witnesses observed Marin and Jimenez arguing in the street and a passerby called the police.State v. Marin, 783 S.E.2d 808, 809-10 (S.C. 2016).
I. Ground One
In Ground One, Marin alleges that exculpatory evidence was suppressed in his case. In particular, he asserts the State suppressed evidence by not properly complying with South Carolina Law Enforcement Division (“SLED”) protocols, which were required to have the steering wheel cover from his car tested for DNA. (Dkt. No. 1 at 5; Dkt. No. 1-2 at 6-11.) The Warden argues the PCR court properly considered and rejected this assertion of error. (Dkt. No. 23 at 9-12.)
Marin's testimony at trial and during the PCR evidentiary hearing was that Victim attacked him and grabbed the steering wheel to try to run Marin off the road. (See Dkt. No. 23-4 at 8-9.) In his PCR hearing testimony, Marin initially alleged the State “maliciously suppressed the steering wheel cover ....” (Id. at 31.) PCR counsel then provided Marin with a letter from SLED, which indicated the State had not complied with SLED's testing protocols. (Id. at 3237.) PCR counsel informed the PCR court that he had emailed SLED to confirm that no additional testing was done on the steering wheel cover, but he had not received a response. (Id. 34-36.) Marin then testified there was still error by the prosecution, explaining
Well, if the testing was done, and it was not presented, that would be a suppression violation. If testing was not done and it was rejected, that is a Brady violation because I've never heard-I've never seen that letter. I've never-my trial counsel never mentioned anything about that, and she just said they just recently sent that letter.(Id. at 38.)
When trial counsel was asked if she recalled anything about the steering wheel cover being sent to SLED for DNA analysis, she stated, “I don't recall that.” (Id. at 98.) When she was told the steering wheel cover was textured, trial counsel testified, “[U]sually, if you have that situation, the State will try to get touch DNA rather than the fingerprints because touch DNA's a little bit easier to get off of those kinds of surfaces, and I don't think-I don't think that they did that.” (Id. at 99.)
The PCR court considered a slightly different claim than the one presented to this Court.
The PCR court found as follows:
Applicant also alleged prosecutorial misconduct, in that the State failed to disclose DNA testing performed on the Applicant's steering wheel cover. This Court granted Applicant discovery to resolve whether such DNA testing had been done. SLED thereafter provided all documentation surrounding the testing of a sample collected from the steering wheel cover which revealed no testing had ever been done, because the requirements for routine analysis had not been met. Therefore, Applicant has failed to prove this allegation.(Dkt. No. 23-6 at 30.)
Briefly, to the extent Marin is making the same argument considered by the PCR court, the AEDPA requires that this Court give deference to the PCR court's conclusion on this issue. Marin may only be granted habeas relief if he demonstrates either that the PCR court's determination (1) is “contrary to, or involve[s] an unreasonable application of, clearly established Federal law, as determine by the Supreme Court . . . [,]” or (2) is “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). He has not done so here.
Again, the issue Marin now raises in Ground One is not that the State failed to disclose DNA testing that was performed but that the State failed to disclose that no DNA testing was performed because they did not follow SLED protocols. According to Marin,
Petitioner and his trial counsel were provided with the chain of custody forms sending the steering wheel cover to SLED and requesting DNA examination of same. Petitioner was not provided with the letter from SLED informing the Prosecution's Investigator Demetric Glen that its protocol was not followed, nor was the Applicant provided with any documentation that no DNA analysis of the steering wheel cover was performed.
Because Applicant was not provided with this information, he lost the opportunity to specifically request the court to order DNA testing of the steering wheel cover, which he feels would have provided him confirmation that the victim grabbed the steering wheel with his hands thereby placing Applicant in danger, and in fear for his life and justifying Applicant's self-defense shooting of the victim.(Dkt. No. 1-2 at 9-10.)
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment ....” Brady, 373 U.S. at 87. To show a Brady violation, the Petitioner must show: (1) the evidence was favorable to the accused; (2) the evidence was suppressed by the State, either willfully or inadvertently; and (3) prejudice ensued. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
The Warden points out that Marin's argument is flawed in multiple respects. First, because trial counsel was given the information that the steering wheel cover was submitted for DNA testing but was not given any results for such testing, trial counsel would have known no testing was done on the steering wheel cover. It was not necessary for the State to provide the letter from SLED explaining why the steering wheel cover would not be tested. See Bates v. Cartledge, C/A No. 3:11-2198-TMC, 2012 WL 1968932, at *3 (D.S.C. June 1, 2012) (finding no Brady violation where the State did not turn over a letter from SLED that firearms evidence had not been examined and further noting “‘the Government has no obligation under Brady to turn over evidence which does not actually exist but might be produced as a result of as-yet-unperformed testing'” (quoting Banks v. United States, C/A No. 5:08cv162, 2010 WL 3855065 (N.D. W.Va. 2010))). Trial counsel could have requested a DNA analysis of the steering wheel cover with the information that had been provided. Thus, no evidence was suppressed. Cf. State v. Sauvain, 958 N.W.2d 237, 2021 WL 811175, at **3 (Iowa Ct. App. Mar. 3, 2021) (finding no Brady violation because the prosecution did not suppress evidence where “[t]he State did not conceal the fact that the sheet was seized but not tested”) (Table).
Second, as Marin did not have the steering wheel cover tested during his PCR action, it is speculative as to whether or not the DNA analysis would have produced any results. United States v. Caro, 597 F.3d 608, 619 (4th Cir. 2009) (“Because Caro can only speculate as to what the requested information might reveal, he cannot satisfy Brady's requirement of showing that the requested evidence would be ‘favorable to [the] accused'” (quoting Brady, 373 U.S. at 87)). Thus, Marin failed to show the evidence would have been favorable to him.
Third, even assuming a DNA analysis would have shown the victim's DNA on the steering wheel cover, there is no prejudice here since there was no real dispute over whether the victim grabbed the steering wheel during the struggle that occurred in the car. As noted by the Warden, the prosecutor conceded in his closing statement that the victim grabbed the steering wheel. (Dkt. No. 23-2 at 51 (“[Victim] grabs the steering wheel, ladies and gentlemen. But make no mistake. He's the one that was trying to defend himself.”).) A DNA analysis showing the victim's DNA on the steering wheel cover would have been consistent with the position by the State and by Marin. Accordingly, no prejudice resulted from the failure to test the steering wheel cover or the failure to advise the defense that no testing had been done. See McHone v. Polk, 392 F.3d 691, 701 (4th Cir. 2004) (finding undisclosed evidence is not material when “at best it would be cumulative to [an] undisputed fact”).
During the PCR evidentiary hearing, trial counsel also confirmed there was never a dispute about the victim going for the steering wheel. (Dkt. No. 23-4 at 94 (“Q. ‘So, the State was never disputing that the victim may have been reaching in the front seat?' A. ‘Right. There was no, there was no testimony contradicting that because they got in Mr. Jimenez's excited utterance they were trying to take the wheel, trying to take the wheel.'”).)
For all of the above reasons, Marin has failed to demonstrate a Brady violation occurred when the State failed to provide the letter from SLED.
Additionally, to the extent Marin now attempts to raise a more general due process violation based on the State's failure to test the steering wheel cover, he has not met his burden. According to the United States Supreme Court, “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Arizona v. Youngblood, 488 U.S. 51, 58 (1988).
As set forth above, Marin has failed to demonstrate that he is entitled to relief under § 2254. As such, the undersigned recommends that summary judgment be granted as to Ground One.
II. Ground Two
Marin next argues trial counsel was ineffective for failing to object to the prosecutor's closing argument that the fact that Marin shot the Victim twice in the back of the head showed malice. (Dkt. No. 1-2 at 12-16.) Marin asserts “[t]he jury had no theory of motive or malice other than the firing of two shots instead of one equaling malice murder.” (Id. at 13.) Without an objection from trial counsel or a curative instruction from the trial court, Marin believes “the jury took this submission of wrongful law by the prosecutor into deliberations with the assertion that Petitioner was guilty of malice murder because two shots were fired instead of one.” (Id. at 12.) The Warden contends the PCR court reasonably and correctly found counsel's performance was reasonable in not objecting to that part of the prosecutor's closing argument. (Dkt. No. 23 at 13-17; Dkt. No. 35 at 17-23.)
The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). A petitioner proves ineffective assistance by showing his attorney's performance was deficient and prejudiced him. Id. at 687. An attorney's performance is deficient if it was unreasonable under the circumstances of the case and under then-prevailing professional norms. Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). Prejudice 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” means “a probability sufficient to undermine confidence in the outcome.” Kimmelman, 477 U.S. at 384.
Strickland is highly deferential to counsel, and § 2254(d) is highly deferential to state courts. Harrington, 562 U.S. at 105. That means when a state court has adjudicated an ineffective-assistance claim on the merits, this Court's review is “doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). In other words, the question becomes “not whether counsel's actions were reasonable,” but “whether there is any reasonable argument that [Marin's] counsel satisfied Strickland's deferential standard.” Harrington, 562 U.S. at 105.
Subsection 2254(d)'s standards are to be applied to the decision from the highest state court to decide the claim at issue on the merits. See Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). When the highest state court rules summarily, the federal habeas court should “look through” that unexplained decision to the last state-court decision that provides a relevant rationale, and “should then presume that the unexplained decision adopted the same reasoning.” Id. In this case, the PCR court was the only one to issue a reasoned decision on most of Marin's claims. As such, the undersigned considers the PCR court's reasoning in analyzing Marin's claims.
As pointed out by Marin, there were multiple times during the State's closing argument where the prosecutor referenced that Marin shot the victim two times in the back of the head. (See, e.g., Dkt. No. 23-2 at 46 (“Ladies and gentlemen, I submit this is malice. Two shots, not one, two shots to the back of the head. One of them tight contact, barrel up against the head.”).) The prosecutor argued that showed malice. (See id. at 46, 51.) Trial counsel did not object during the State's closing argument.
During his PCR hearing testimony, Marin argued trial counsel should have objected to the State's closing argument when it was suggested the jury could infer malice from that fact that the victim was shot twice. (Dkt. No. 23-3 at 234-35.) Marin further alleged trial counsel was ineffective for not “argu[ing] and explain[ing] why the second shot was fired.” (Dkt. No. 23-4 at 4.) Later, while discussing appellate counsel's performance, Marin again testified that trial counsel should have argued that malice could not be implied by two shots being fired. (Id. at 17.)
Trial counsel was also asked about the prosecutor's argument that two shots to the back of the head was indicative of malice. (Id. at 89-90.) She confirmed that she requested the “continuing to shoot” charge in response to the prosecutor's argument. (Id.) Trial counsel was then asked, “Did you find her argument objectionable?” (Id. at 90.) And she responded, “I- well, I, I do-I think it's-you can object. Certainly. Do I think it's a proper argument maybe for a prosecutor to make? Sure. I've heard that argument here many times, but . . . I do believe and still believe that the jury instruction should have been given.” (Id.)
The PCR court found Marin failed to prove deficiency or prejudice with regard to this claim,
Applicant also complains that Counsel did not object to the prosecutor's argument that the two shots was evidence of malice. This issue was also used to support Applicant in his arguments on appeal. However, this Court finds the argument was proper and not objectionable. Counsel did not find the argument objectionable, but, rather, in response to it, she argued for the “continue to shoot” charge. The Court finds her performance in this regard was reasonable, despite Applicant's allegation Counsel should have argued why the second shot was “necessary.” Not only does this Court find the evidence did not support such an argumentFN3, but such an argument was not likely to change the outcome of the trial.
FN3. At trial, Applicant testified he shot twice, “real fast-boom, boom” (Tr. p. 313-314) within seconds. Therefore, how could he have known if the second shot was “necessary”
Lastly, this Court notes that the law from Hendrix states that “when a person is justified in firing the first shot, he is justified in continuing to shoot until it is apparent that the danger to his life and body has ceased.” Hendrix, [244 S.E.2d 505,] 507 [(S.C. 1978)]. The more relevant issue for the jury to determine in this case, was if Applicant was even justified in shooting the heavily intoxicated victim in the back of the head two times after the victim has, on more than one occasion, pleaded for Applicant to stop or turn around after Applicant had passed his home at 3:00 AM and continued to drive farther and farther from the victim's home. The victim had even “attacked” Applicant from the backseat prior to the fatal attack and Applicant was able to push him off and into the backseat. At no point in time between that attack and the 10 miles Applicant continued to drive did he consider pulling over and kicking Applicant out of the car. Nor did Applicant consider simply slowing down and kicking Applicant out of his car during the second “attack,” in which Applicant alleged the victim was trying to “kill them all” by running the car off the road. Instead, Applicant chose to reach over to his glove compartment,FN4 pull out a pouch containing a gun, put the pouch between his legs, unzip the pouch, pull out the gun, then press the gun firmly against the back of the victim's head/neck and fire two rapid shots, all while still driving the car while passenger Jiminez sat by idly offering no assistance in subduing the alleged “attacker” that was trying to “kill them all.” In this Court's reading of the record, the most relevant issue was the credibility of Applicant's self-defense claim, rather than whether there was malice because he fired two shots. Counsel was not deficient. Had Counsel done any of the things Applicant insists she should have, the facts would not have changed, and therefore the outcome would not have changed.
FN4. The evidence seems to indicate that Applicant would have had to reach to his glove compartment for the secured gun while Applicant was not “attacking” him, but, rather, while he was subdued in the backseat.(Id. at 22-23.)
Again, in accordance with the AEDPA, the Court must focus on whether the PCR court's rejection of this claim was unreasonable. As set forth above, the PCR court's rejection of this claim is based partly on credibility findings, which are entitled to deference here. See Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (“[F]or a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear.”); Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (“28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.”). Under § 2254, factual findings, such as those made by the PCR court, are presumed to be correct, and a petitioner has the “burden of rebutting the presumption . . . by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Wilson v. Ozmint, 352 F.3d 847, 860 (4th Cir. 2003) (“These facts do not compel the credibility determination reached by the state court, but they certainly provide sufficient basis, for purposes of section 2254(d)(2), to support such a determination.”). As excerpted above, the PCR court's findings are consistent with the record-trial counsel deemed the prosecutor's argument to be proper. Marin has not identified any clear and convincing evidence to rebut the facts as found by the PCR court.
Marin has further failed to identify how the PCR court's determination is contrary to, or an unreasonable application of, federal law. In particular, the PCR court found it was reasonable for trial counsel to request the “continue to shoot” instruction and not object to the prosecutor's argument. Although Marin may disagree with that assessment, he has failed to show it was an unreasonable application of federal law. See United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir. 1993) (“Because many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements, the failure to object during closing argument and opening statement is within the ‘wide range' of permissible professional legal conduct.” (quoting Strickland, 466 U.S. at 689)). As discussed in further detail below, Marin's arguments depend primarily on state law.
For example, he cites State v. Burdette, 832 S.E.2d 575 (S.C. 2019), a state case that prohibits the jury instruction that malice can be inferred from the use of a deadly weapon. However, that case does not prohibit the prosecution from arguing that malice should be inferred from the use of a deadly weapon (or, in this case, from the fact that the victim was shot twice in the back of the head). See Burdette, 832 S.E.2d at 582 (“Of course, whether the deed was done with a deadly weapon or not, the State and the defendant are free to argue the existence or nonexistence of malice based on the evidence in the record.”). Additionally, in Marin's case, the trial court did not give the inference-of-malice jury instruction.
With regard to Marin's contention that the jury should have been charged with the “continuing to shoot” instruction, as set forth in State v. Hendrix, 244 S.E.2d 503, 507 (1978), the state supreme court found the trial court's jury instructions went “well beyond” the general elements of self-defense. State v. Marin, 783 S.E.2d 808, 813 (S.C. 2016). The South Carolina Supreme Court found the “continuing to shoot” charge requested by trial counsel was appropriate, but its absence did not mandate reversal. Id. Marin disagrees with the state supreme court, but he has provided no authority that compels habeas relief on that issue. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state law questions.”).
Further, to the extent Marin believes Hendrix stands for the proposition that malice cannot be inferred from the fact that the victim was shot twice instead of once, that is not the case. As noted by the PCR court, Hendrix states, “the rule is . . . that ‘when a person is justified in firing the first shot, he is justified in continuing to shoot until it is apparent that the danger to his life and body has ceased.'” 244 S.E.2d at 507 (quoting 40 C.J.S. Homicide § 131(b) at 1020 (1944)). In Hendrix, the South Carolina Supreme Court found Hendrix was acting in selfdefense as a matter of law. However, in this case, both the trial court and the PCR court determined there was a jury question as to self-defense-that is, there was a question as to whether Marin was justified in firing the first shot. (See supra pp. 16-17 (excerpting the PCR court's questions and conclusion that “the most relevant issue was the credibility of Applicant's self-defense claim”).) Thus, Marin's case is distinguishable from Hendrix.
Finally, while Marin asserts the jury was misled by the prosecutor's statements, that is speculative. But also, the trial court informed the jury that he would instruct them as to matters of law. (Dkt. No. 23-2 at 56 (“You must however under your oath as a juror accept the law as I provide it to you as being the law that is applicable in this particular case.”)); see United States v. Runyon, 707 F.3d 475, 497 (4th Cir. 2013) (“Our analysis is governed, first and foremost, by the ‘almost invariable assumption of the law that jurors follow their instructions.'” (quoting Richardson v. Marsh, 481 U.S. 200, 206 (1987))).
Because Marin has failed to show the PCR court's decision was unreasonable in light of the facts presented or the relevant law, he has failed to meet his burden under § 2254. Accordingly, the undersigned recommends the Warden's motion for summary judgment be granted as to Ground Two.
III. Ground Three
In Ground Three, Marin argues trial counsel “was ineffective when she failed to object to prosecutor's highly prejudicial closing argument that the Petitioner would not stop the vehicle while being attacked by the victim, thereby negating his no duty to retreat.” (Dkt. No. 1-2 at 17.) The Warden contends the PCR court reasonably found trial counsel was not deficient in failing to object to the prosecutor's closing arguments. (Dkt. No. 23 at 18.)
Multiple times during the course of her closing argument, the prosecutor mentioned that Marin did not stop the car even after he was attacked by the victim. (See, e.g., Dkt. No. 23-2 at 45 (“He didn't stop the car. Instead he chooses to go and get his gun.”), 48 (“Stop the car, stop the car. Then you're not in imminent fear. Stop the car.”), 51 (“He's asked him to stop. And he continued to drive.”). Trial counsel did not object.
During the PCR evidentiary hearing, Marin testified,
[T]he Prosecutor said I would not stop when, in fact, I did testify that I was planning to stop. I was looking for a place to stop, and-but the deceased attacked me before I could. He had already attacked me once in East North Street, and, when he attacked me, I was looking for a place to stop, but he attacked me again before I had a chance to stop. So, when the prosecutor said that, that I would not stop, it was after I had been attacked once. I had already been attacked by, by the deceased.(Dkt. No. 23-3 at 251.)
Although she was not asked about the prosecutor's closing argument that Marin would not stop the car, trial counsel recalled that she made a directed verdict motion and requested a jury instruction based on a state law codification of the Castle Doctrine. (Dkt. No. 23-4 at 9091.) The state of the law at that time was somewhat unsettled, and trial counsel recalled she made those motions later in the case to surprise the State. (Id. at 91-92.) She recalled that the trial judge removed “the duty to retreat” in the jury charge as a result of her request. (Id. at 91.)
The PCR considered this same claim but found Marin has not met his burden for the following reasons:
Applicant alleged Counsel should have objected when the prosecutor stated in closing that Applicant “would not stop.” (Tr. p. 349). However, Applicant has failed to present any evidence as to why this comment was objectionable. The comment was in reference to evidence presented at trial. Jiminez's excited utterances were admitted. Jiminez said Applicant was supposed to take the victim home, passed the victim's home, the victim got upset and tried to get Applicant to stop the car, and Applicant “just wouldn't stop.” (Tr. p. 122). Applicant himself testified he never stopped even after the victim allegedly kept trying to reach for the wheel and Applicant pushed him back. (Tr. p. 303). Therefore, the prosecutor's comment was not objectionable and Counsel was not deficient.(Dkt. No. 23-6 at 28-29.)
Since this issue was considered by the PCR court, this Court is concerned with whether habeas relief should be granted either because the PCR court made unreasonable factual findings or because the PCR court's determination reflects an unreasonable application of federal law. Although Marin argues generally the PCR court erred, he fails to identify how the PCR court's conclusion was based on unreasonable factual findings. As noted by the PCR court, there was evidence in the record that Marin would not stop the car after he passed the victim's house; and, as such, the prosecutor's statement did not misconstrue the evidence. (See Dkt. No. 23-1 at 125 (“And they had gone past his road and he got very upset and was trying to, to get them to stop the car, and the driver wouldn't stop. He said he just wouldn't stop.”), 306 (“A. ‘Did you think about stopping the car?' A. ‘No, ma'am.'”).)
To the extent Marin asserts the prosecutor's statements were a comment as to the law regarding his duty to retreat, the trial judge made clear to the jury he was giving them the applicable law. (Dkt. No. 23-2 at 54 (“[U]pon deciding those facts you apply the law that I will have provided to you ....”), 56 (“Under your oath as a juror you must simply accept the law as I provide it to you as being the law that is applicable in this particular case.”).) The trial court told the jury Marin had no duty retreat. (Dkt. No. 23-2 at 67 (“[A] person who is not engaged in an unlawful activity and who is attacked in a place where he has a right to be, including his home, business, or motor vehicle, has no duty to retreat and has the right to stand his ground and to meet force with force, including deadly force, if he reasonably believes it is necessary to prevent death or great bodily injury to himself or to another person.”).) The prosecutor did not contradict that statement of the law. The PCR court found the State's argument was not objectionable, and, thus, trial counsel was not deficient, and Marin has failed to show either unreasonable factual findings or an unreasonable application of federal law. See Glass v. Wetzel, C/A No. 16-3902, 2016 WL 9132009, at *9 (E.D. Pa. Dec. 14, 2016) (“Having determined that the prosecutor's comments on closing argument were entirely proper, trial counsel cannot be deemed ineffective for failing to interpose a frivolous objection.”).
For the foregoing reasons, the undersigned recommends the Warden's motion for summary judgment be granted as to Ground Three.
IV. Ground Four
In Ground Four, Marin asserts appellate counsel were ineffective for failing to raise the directed verdict issue in his direct appeal. (Dkt. No. 1-2 at 20-21.) The Warden argues the PCR court reasonably denied this same claim, and, thus, Marin is not entitled to habeas relief. (Dkt. No. 23 at 19-25.)
As with trial counsel, in order to show ineffective assistance of appellate counsel, a petitioner must show both deficiency and prejudice. Smith v. Murray, 477 U.S. 527, 535-36 (1986) (applying Strickland to a claim of ineffective assistance of appellate counsel). However, with regard to appellate counsel and the failure to raise certain claims, the Supreme Court has held “[t]his process of ‘winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.” Id. at 536 (quoting Jones v. Barnes, 463 U.S. 745, 751-51 (1983)).
The trial record shows that trial counsel moved for a directed verdict at the conclusion of the State's case and again at the conclusion of the defense's case. (Dkt. No. 23-1 at 272-75; Dkt. No. 23-2 at 3-7.) Trial counsel argued there was not sufficient evidence of malice. (Dkt. No. 23-1 at 272-74.) After Marin testified, trial counsel asserted Marin had been acting in selfdefense. (Dkt. No. 23-2 at 3.) The State disagreed, arguing the two, contact-wound shots to the back of the head demonstrated malice. (Dkt. No. 23-1 at 274.) The trial court denied the motions for a directed verdict, noting “based upon my consideration of the evidence I do find that there is substantial circumstantial evidence establishing . . . the element of malice necessary to establish the crime of murder ....” (Id. at 275.)
The directed verdict issue was not raised in the direct appeal. Instead, appellate counsel raised two issues with the trial court's jury instructions-specifically, that the trial court had erred in denying the “continuing to shoot” charge and that the trial court had erred in refusing to give a full jury instruction on the Castle Doctrine.4F (Dkt. No. 23-2 at 108.) Marin was not successful in his appeal.
These are quoted in this report and recommendation at page 2.
During his PCR evidentiary hearing, Marin testified appellate counsel “was [in]effective in failing to claim the directed motion of self-defense” since it was both preserved and, according to Marin, “dispositive of this case ....” (Dkt. No. 23-4 at 12.) Appellate counsel did not testify at the hearing.
The directed verdict issue was one of many Marin believed appellate counsel should have raised in the direct appeal, but the PCR court found Marin failed to show ineffective assistance on appellate counsel's part. Considering those many unraised issues collectively, the PCR court found
Applicant has failed to meet his burden of proving either appellate counsel was deficient or that Applicant was prejudiced by such alleged deficiencies. Applicant proposed that appellate counsel should have briefed issues that are either without basis in any authority in South Carolina law, or were actually raised, or are clearly inferior to the issues which were raised. Applicant failed to present any evidence to convince this Court that the issues raised were not the most meritorious issues available on appeal. This is evidenced by the fact that the case was called to oral argument at the Court of Appeals, resulted in a published opinion from the Court of Appeals, the Supreme Court granted certiorari to review the case, the Supreme Court called the case for oral argument, and resulted in a published opinion from the Supreme Court. Further, this Court finds none of
the case law Applicant insisted should have been used to be of any benefit to the arguments made on appeal.(Dkt. No. 23-6 at 32.)
Marin focuses more on his underlying claim rather than any alleged errors in law or fact by the PCR court. The foundation of Marin's arguments to this Court is that he was acting in self-defense and had no duty to retreat when the victim attacked him. (Dkt. No. 30 at 26-42.) Marin cites much of his testimony, which supports his version of events that he missed the victim's street through no fault of his own, and then the victim attacked him and tried to take the steering wheel and run the car off the road, and Marin then shot the victim twice in self-defense. (Id. at 30-37.) However, for purposes of the directed verdict issue, the trial court was not concerned with only one version of events. In accordance with South Carolina law,
“‘When ruling on a motion for a directed verdict, the trial judge is concerned with the existence of evidence, not its weight.'” State v. Wiggins, 500 S.E.2d 489, 492-93 (1998) (quoting State v. Long, 480 S.E.2d 62, 63 (1997)) (affirming the denial of a directed verdict on self-defense because the State presented sufficient evidence to create a jury issue as to self-defense).... “If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, the Court must find the case was properly submitted to the jury.” [State v. Weston, 625 S.E.2d 641, 648 (2006)] (citing State v. Cherry, 606 S.E.2d 475, 478 (2004)).State v. Butler, 755 S.E.2d 457, 460 (2014). Thus, the law constrained the trial court to deny the directed verdict motion if there was any direct or substantial circumstantial evidence that Marin did not shoot the victim in self-defense. The PCR court denied this claim because Marin “failed to present any evidence to convince this Court that the issues raised were not the most meritorious issues available on appeal.” (Dkt. No. 23-6 at 32.) As noted by the PCR court and as already excerpted above, see supra pp. 16-17, there were multiple reasons to doubt Marin's version of events and, further, to doubt his contention that he shot the victim in self-defense. (Dkt. No. 23-6 at 22-23.) Thus, Marin's argument that the directed verdict issue was dispositive was not convincing to the PCR court, and Marin has failed to demonstrate the PCR court made unreasonable factual findings or unreasonably applied federal law in denying this claim.
As set forth above, Marin has failed to meet his burden under § 2254 as to this claim. The undersigned recommends the Warden's motion for summary judgment be granted as to Ground Four.
V. Ground Five
Marin alleges a claim of prosecutorial misconduct in Ground Five. Specifically, he asserts that the prosecutor who handled the direct appeal for the State misstated facts in his appellate briefs “to create bias, and prejudice against Petitioner, and to introduce the element of malice in order to obstruct Petitioner's claims on his appeal.” (Dkt. No. 1-2 at 22.) The Warden argues this claim is procedurally barred because the PCR court found it was not properly raised in state court. (Dkt. No. 23 at 26.) In the alternative, the Warden asserts Marin's Ground Five lacks merit. (Id. at 25-28.)
During his testimony at the PCR evidentiary hearing, Marin explained that Russell Ghent, who briefed and argued the direct appeal on behalf of the State, had misstated the evidence. (Dkt. No. 23-3 at 248-50.) Marin testified, “Mr. Ghent claims that the, the deceased was shot while being held down and pinned down. If that would have been the case, then they would of found bullet holes or fragments on the floorboard of the car instead of on the windshield.” (Id. at 248.) Instead, a bullet went through the windshield and through a GPS unit that was hanging from the rearview mirror. (Id.) Later, Marin asserted appellate counsel should have filed a reply brief to contest Ghent's statement that Marin had pinned the victim down when he shot him. (Dkt. No. 23-4 at 14-15.) Marin testified that Ghent's characterization of the facts was both prejudicial and untrue. (Id. at 17-21.)
Russell Ghent was also called to testify at the PCR evidentiary hearing. (Id. at 117-41.) According to Ghent, one of the bullets to the back of the victim's head was on an upward trajectory and went through the windshield, but, based on the trajectory of the other shot through the head, Ghent believed “that the shooting occurred while he was down as the Defendant was struggling with him ....” (Id. at 128-29.) When asked what evidence supported the arguments that the victim was face down when he was shot, Ghent responded, “The position of the body, the bullet hole through the windshield, the trajectory of the bullets going through the head, the blood all over the Defendant, the basic largest amount of blood.” (Id. at 132.) On crossexamination, Ghent admitted there had been no trajectory testing done while the victim's body was still in the vehicle to determine the trajectory of the bullets in the car. (Id. at 137.) Ghent also agreed he was not a ballistics expert; however, he maintained that his statements on appeal were based on the evidence, circumstances, and his experience. (Id. at 138-39.)
In his PCR action, Marin had raised a number of claims of prosecutorial misconduct or malicious prosecution, and the PCR court handled those collectively. (Dkt. No. 23-6 at 33-34.) First, the PCR court held the claims were not appropriate for post-conviction relief as they could have been raised at trial or on appeal. (Id. at 33.) Thus, they were procedurally barred. (Id.) However, the PCR court further considered the merits of the claims to the extent Marin had raised them as “newly discovered.” (Id.) The PCR court found as follows:
[T]his Court finds the allegations without merit. Applicant essentially claims that every State actor “lied” in every step of his criminal case from the investigation through trial and even on appeal. Applicant has set forth no credible evidence to support his allegations of prosecutorial misconduct, other than his self-serving testimony. Furthermore, a reading of the record reveals neither Detective Arterburn, Assistant Solicitor Susan Reese, nor Assistant Solicitor Russel Ghent lied during any phase of Applicant's trial and appeal.... Ghent's arguments . . . in the briefs on appeal were based on the evidence presented at trial and reasonable inferences to be made therefrom. Therefore, Applicant has failed to
meet his burden to prove prosecutorial misconduct by a preponderance of the evidence. This allegation is denied and dismissed with prejudice.(Id. at 33-34.)
Initially, the undersigned recommends granting the Warden's motion for summary judgment as to Ground Five because the PCR court found this claim was procedurally barred from being considered in the PCR action. Coleman, 501 U.S. at 729 (“The [independent and adequate state ground] doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.”). Marin has failed to articulate cause and prejudice for the procedural default or that the failure to consider this claim would result in a fundamental miscarriage of justice. See id. at 750 (“In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.”).
The undersigned briefly considers the PCR court's review of the merits of Marin's prosecutorial misconduct claim, as well. Marin's arguments to this Court demonstrate that he disagrees with the PCR court's assessment of the facts. He believes that Ghent misstated the facts when he indicated that the victim was face down in Marin's lap at the time he was shot. (See Dkt. No. 23-3 at 78 (“justifying that he put a gun to the back of the victim's head as the victim was prone and face down in his lap”), 81 (“did not tell the jurors that having once shot an unarmed man who was pinned face down, while he was being held in a car against his will, in the back of the head at contact range”), 82 (“pulling a gun from the glove compartment while holding the victim face down”). Marin argues that it is impossible for one bullet to have gone through upper part of the windshield and one bullet to have gone through the GPS unit hanging from the rearview mirror if the victim was pinned down at the time Marin shot him in the back of the head. (Dkt. No. 30 at 45.) Marin notes that no bullet holes or lodged bullets were found on the floorboard or elsewhere in the car. (Id.) However, as noted by Marin's crime scene expert at the PCR evidentiary hearing, no testing was done at the crime scene to determine the trajectory of the bullets through the victim's head and then through the vehicle. (Dkt. No. 23-3 at 214.) Thus, it was not determined in what position the victim was at the time he was shot in the back of the head. Marin's expert testified that, based on his review, “the body just stayed right where it was. Just kind of . . . went straight down.” (Id.) Marin has failed to demonstrate that the PCR court made unreasonable factual findings when concluding Ghent's statements were either based on the evidence or reasonable inferences made therefrom. Gray v. Zook, 806 F.3d 783, 790 (4th Cir. 2015) (“An unreasonable determination of the facts is not merely an incorrect determination, but one ‘sufficiently against the weight of the evidence that it is objectively unreasonable.'” (quoting Winston v. Kelly, 592 F.3d 535, 554 (4th Cir. 2010))).
Finally, even if Marin had successfully shown that Ghent misconstrued the evidence when he described the victim as being pinned down at the time he was shot, there is no indication that those statements prejudiced him in his direct appeal. Under federal law, “[t]o succeed on a prosecutorial misconduct claim, the [petitioner] must show that the government's improper conduct ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.'” United States v. Chavez, 894 F.3d 593, 602 (4th Cir. 2018) (quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). Marin has failed to meet that standard. It is notable that Ghent's statements were made to appellate courts, who had the record at their disposal. Moreover, the South Carolina Supreme Court did not adopt the State's recitation of the facts, and there is no reason to believe the court was biased against Marin based on the factual summary provided by the State on appeal.
The undersigned recommends the Warden's motion for summary judgment be granted as to Ground Five. This ground is procedurally barred, and, alternatively, it lacks merit.
Certificate of Appealability
If the Warden's summary judgment motion is granted, the District Judge will need to decide whether to issue a certificate of appealability. See Rule 11(a), Rules Governing § 2254 Cases. A certificate may be issued only upon a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a petitioner's constitutional claims have been denied on the merits, the petitioner must demonstrate that “reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (citation and quotation marks omitted). The undersigned sees no reason to grant a certificate of appealability and would, therefore, recommend denying the certificate of appealability.
CONCLUSION
For the above reasons, the undersigned recommends the Court grant the Warden's motion, dismiss this case with prejudice, and decline to issue a certificate of appealability.
IT IS SO RECOMMENDED.
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).