Opinion
C. A. 5:21-cv-01226-JMC-KDW
01-19-2022
Marquis Robinson, Petitioner v. Kenneth Nelson, Respondent
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Petitioner Marquis Robinson (“Petitioner”) is a state prisoner who filed this petition with the assistance of counsel for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 16, 17. On August 30, 2021, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment, ECF No. 19, and on September 1, 2021, Respondent filed a Reply, ECF No. 20. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 17, be granted.
I. Background
Petitioner is currently incarcerated in the Broad River County Correctional Institution. ECF No. 1 at 1. In 2011, Petitioner was indicted at the September term of the York County Grand Jury for armed robbery (2011-GS-46-02905); attempted murder (2011-GS-46-02906); criminal conspiracy (2011-GS-46-02907); kidnapping (2011-GS-46-02908); and possession of a firearm during the commission of a violent crime (2011-GS-46-02909). App. 1340-1354. Attorney Twana N. Burris represented Petitioner in a jury trial that convened from July 22-25, 2013, and Assistant Solicitor Misty Horton Shelton represented the State. App. 386. Petitioner was tried before the Honorable John C. Hayes, III on all charges. Id. After the trial, the jury found Petitioner guilty of armed robbery; criminal conspiracy; kidnapping; possession of a firearm during the commission of a violent crime; and assault and battery in the second degree, a lesser included offense of attempted murder. App. 386. Judge Hayes sentenced Petitioner to 30 years imprisonment for armed robbery; 30 years imprisonment for kidnapping; five years imprisonment for criminal conspiracy; five years imprisonment for possession of a firearm during the commission of a violent crime; and three years for the assault and battery conviction. App. 386; 1196-1210; 1340-1354.
Citations to “App.” refer to the Appendix for Petitioner's trial transcript and Post-Conviction Relief (“PCR”) proceedings. That appendix is available at ECF Nos. 16-1 through 16-8.
It appears Petitioner's first trial that began in January of 2013, ended in a mistrial. App. 1289.
Appellate Defender Kathrine H. Hudgins represented Petitioner on appeal and briefed the following issue: “Did the trial judge err in refusing to grant the motion for mistrial based on the prosecutor's failure to disclose evidence favorable to [Petitioner] and material to his guilt in violation of [Petitioner's] state and federal constitutional rights?” App. 1214-1225. Assistant Attorney General J. Benjamin Aplin filed the Response Brief on behalf of the State, and Petitioner submitted a Reply. App. 1226-1249. On October 14, 2015, the South Carolina Court of Appeals filed an unpublished opinion, affirming Petitioner's convictions and sentences. State v. Robinson, Op. No. 2015-UP-486. App. 1258-59. On November 4, 2015, the Court of Appeals issued the Remittitur. App. 1260.
II. Procedural History
Petitioner filed an application for Post-Conviction Relief (“PCR”) on April 13, 2016 (2016-CP-46-1144), alleging he was being held unlawfully on the following grounds:
(1) 4th, 5th, 8th, 13th, 14th Amendment[s] and violation of due process;
(2) Violation and fraud upon the court and subject matter jurisdiction;
(3) ineffective assistance of counsel in violation of Brady law.App. 1261-1267. Assistant Attorney General Justin J. Hunter filed a Return on behalf of the State. App. 1268-1273. On January 15, 2018, Attorney Ashley A. McMahan filed an Amended PCR Application on Petitioner's behalf. App. 1274-75. In the Amended Application, Petitioner raised the following issues:
(1) Ineffective Assistance of Counsel as to Twana N. Burris-Alcide, Esquire:
a. Failed to call Kayla Higgs as an alibi witness.
b. Failed to properly cross-examine Ernest Jordan regarding statements made. Had Mr. Jordan been properly cross examined he would have lost all credibility and [Petitioner] would have been exonerated at trial.
(2) Trial Judge abused discretion when he punished [Petitioner] for exercising his right to trial by giving [Petitioner] an excessive sentence. See Castro v. State, 417 S.C. 77, 789 S.E.2d 44 (2016).
(3) Juror Tamara N. Gary knew trial counsel and failed to disclose that information in voir dire. See State v. Woods, 345 S.C. 583, 550 S.E.2d 282 (2001), “[w]here a juror, without justification, fails to disclose a relationship to a party, it may be inferred, nothing to the contrary appearing, that the juror is not impartial.Id. A PCR hearing convened on January 29, 2018, before the Honorable J. Mark Hayes. App. 1276-1328. Petitioner was present and represented by Attorney McMahon, and Assistant Attorney General Justin Hunter appeared on behalf of the State. Id. Petitioner, trial counsel Twana Burris, and witness Kayla Higgs testified during the hearing. See Id. In an Order filed April 12, 2018, the PCR court denied Petitioner's PCR Application in full, making the following findings of fact and conclusions of law:
This Court has reviewed the testimony presented at the evidentiary hearing, observed the witnesses presented at the hearing, passed upon their credibility, and weighed the testimony accordingly. Further, this Court has reviewed the Clerk of Court records regarding the subject convictions, the trial transcript, Applicant's records from the South Carolina Department of Corrections, the application for post-conviction review, and the legal arguments made by the attorneys. Pursuant to S.C. Code Ann. § 17-27-80 (2003), this court makes the following findings of fact based upon all of the probative evidence presented.
Failure to Call Kayla Higgs as an Alibi Witness
Applicant alleged Counsel was ineffective for failing to call Kayla Higgs as an alibi witness at Applicant's trial. Applicant testified Ms. Higgs was supposed to testify at the trial. Ms. Higgs testified at the PCR hearing. She testified she has children with Applicant and they were together as a couple at the time of the incident. She testified that on the night of the incident, Applicant picked her up from work at 6:00PM, the two went to their home, and they went to bed at 10:30PM. She testified Applicant worked during the day. Ms. Higgs testified she would have heard if Applicant got up in the middle of the night to leave their house. She testified she told Counsel her version of events during the night in question. She testified she was not called as a witness at Applicant's trial or his prior trial that ended in a mistrial. Ms. Higgs testified Counsel told her she did not need to be called as a witness. She further testified Counsel discussed the alibi but said could not use it.
Counsel testified Ms. Higgs came to her office many times. She testified neither Applicant nor Ms. Higgs told her Ms. Higgs was an alibi witness. Counsel testified there was no mention of an alibi and if she had been informed of a possible alibi, she would have an obligation to investigate it and turn it over to the State. She testified she always includes more witnesses on her possible witness list because she would not be able to call someone who is not listed. She testified Ms. Higgs never asked to be a witness and never told her Applicant was at their house the night of the incident. Counsel said Ms. Higgs told her in general that she and Applicant have a small child together but Ms. Higgs never told her Applicant was at home during the incident.
This Court finds Applicant has failed to meet his burden of proving Counsel was ineffective for failing to call Ms. Higgs as a witness at the trial. Although Ms. Higgs' appeared credible at the PCR hearing, this Court finds Counsel's testimony is also credible and more believable than Ms. Higgs testimony. This Court finds Counsel provided credible testimony that she met with Ms. Higgs often, and was never told of a possible alibi defense involving Ms. Higgs. This Court also finds Counsel provided credible testimony she was never told of a possible alibi because
she would have an obligation to investigate and turn over the alibi. Applicant has failed to meet his burden of proving Counsel acted unreasonably or that she failed to investigate something known to her at the time. This Court finds Counsel was not deficient where she never had any indication from Applicant or Ms. Higgs that Ms. Higgs could provide alibi testimony for Applicant.
Furthermore, this Court finds Applicant has failed to meet his burden of proving the outcome of his trial would have been different had Ms. Higgs been called to testify. A review of the trial transcript indicates that even if the alibi witnesses had been called at trial, a strong likelihood exists that the alibi witness may not have been believed. The t-shirt which was pulled up over Applicant's face fell down during the robbery, uncovering the face. The victim even smiled when the robbery started as he thought the applicant was “playing.” Thus, even if Counsel was deficient, Applicant has failed to meet his burden of proving the outcome of his trial would have been different. Accordingly, this allegation must be dismissed.
Failed to properly cross-examine Ernest Jordan regarding statements made
Applicant alleged Counsel was ineffective for failing to properly cross-examine victim Ernest Jordan regarding his statements. At the PCR hearing, Counsel testified she interviewed Mr. Jordan twice prior to trial and went to see him. She testified she had an extensive conversation for two hours with Mr. Jordan about his trial testimony and relayed all information to Applicant. Counsel testified Applicant's main defense was mistaken identity, but Mr. Jordan told her he knew Applicant was the assailant because he knew Applicant. She testified it was obvious Mr. Jordan knew defendant, and he saw Applicant's face during the incident when Applicant's shirt fell off his face. Counsel testified she questioned the dollar amounts Jordan said were stolen and also questioned his inconsistent statements.
This Court finds Applicant has failed to meet his burden of proving Counsel's actions were deficient in her cross-examination of Mr. Jordan. Cross-examination is a matter of trial strategy, and as such, this Court must presume that Counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Butler, 286 S.C. at 442, 334 S.E.2d at 814 (citing Strickland, 466 U.S. at 690). In making a fair assessment of attorney performance, a court must make every effort to “eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Strickland, 466 U.S.at 689. The record reflects Counsel cross-examined Mr. Jordan concerning his statements. She elicited testimony that Mr. Jordan could not remember what he told
the 911 dispatcher the night in question. Tr. 275. She also elicited testimony that Mr. Jordan told the initial responding officers there were three suspects. Tr. 277. Counsel also went over Mr. Jordan's statement he gave Detective Stokes that outlined the incident. Tr. 293-295. She elicited testimony that Mr. Jordan offered to give Applicant and his codefendant $10,000 from his truck. Tr. 295. She questioned Mr. Jordan about how much money he actually had on him and inside his truck that night, and how this differed from his prior testimony where he testified to only having $7,000. Tr. 297, 299. Counsel was able to get Mr. Jordan to admit his prior testimony was inconsistent. Tr. 300-301.
This Court finds Counsel was not deficient in her cross-examination of Mr. Jordan as she thoroughly went through his prior testimony and cross-examined him on inconsistencies with his statements. This Court finds Counsel effectively called Mr. Jordan's credibility into question by pointing out the inconsistencies. Any inconsistent testimony was an issue of credibility to be resolved by the finder of fact. See e.g., State v. Wilson, 345 S.C. 1, 6, 545 S.E.2d 827, 830 (2001) (witness's credibility an issue for the jury's consideration). This Court finds Applicant has failed to show exactly how Counsel's cross-examination was deficient and how it fell below the reasonable standard for attorneys. Furthermore, this Court finds Applicant has failed to meet his burden of proving the outcome of Applicant's trial would have been different had Counsel employed different cross-examination. This Court finds Applicant has failed to show exactly how different cross-examination would have changed the outcome of his case and this Court will not speculate whether a “better” cross-examination would have helped Applicant. See Skeen v. State, 325 S.C. 210, 216-17, 481 S.E.2d 129, 133 (1997). Accordingly, this allegation must be dismissed.
Trial Judge abused discretion when he punished the Applicant for exercising his right to trial by giving Applicant an excessive sentence
Applicant alleged the trial judge abused his discretion by punishing Applicant for exercising his right to a trial by giving him an excessive sentence. Our Court's have held “[w]hen a trial judge considers the fact that the defendant exercised his or her constitutional right to a jury trial as a factor in sentencing the defendant, it is an abuse of discretion.” Castro v. State, 417 S.C. 77, 83, 789 S.E.2d 44, 47 (2016). In Castro, the Supreme Court held it did not matter if the trial judge also considered other factors, the fact that judge considered the defendant exercising his right to trial as a factor in sentencing was an abuse of discretion. This Court finds this allegation is without merit. This Court finds there is nothing in the record to support Applicant's claim. The transcript reflects the trial judge did not make any comments concerning Applicant during sentencing and only issued the sentence.
Applicant has failed to provide any evidence to support his allegation. This Court finds Applicant has failed to meet his burden of proving the trial judge abused his discretion, or that Counsel should have objected to the sentence, and this allegation must be dismissed.
Juror Tamara N. Gary failed to disclose she knew Counsel
Applicant alleged Juror Tamara Gary knew Counsel and failed to disclose this fact to the trial court. Applicant testified Counsel said she knew Ms. Gary. Counsel testified she does not know Ms. Gary, has never heard of her before, and never told Applicant that she knew Ms. Gary.
This Court finds Applicant has failed to meet his burden of proving Counsel was deficient. This Court finds Counsel's testimony to be credible that he had never heard of Ms. Gary and did not know her. This Court finds Counsel was not deficient for failing to object to this juror being seated on the jury as no impartiality existed. Furthermore, this Court finds Applicant has failed to meet his burden of proving the outcome of his trial would have been different had this juror been excluded from the jury. Accordingly, this allegation must be dismissed.
Failure to convey plea offer
Applicant alleged during the PCR hearing that Counsel was ineffective for failing to convey a plea offer. Applicant testified he was offered a ten year plea at the start of trial. He testified the solicitor said at the start of trial that there was a fifteen year plea, but this plea was not relayed to him. He testified that the Friday or Saturday before trial he wanted the ten year plea deal and Counsel told him she would notify the solicitor. He testified Counsel never told him the plea offer was fifteen years and not ten years. Applicant testified he would have taken the fifteen year plea had he known about it.
Counsel testified the initial plea offer was for twenty or twenty-five years, and she communicated this to Applicant. She testified he never expressed interest in taking the plea offer. Counsel testified the offer was for fifteen years, but asked the solicitor if she would offer a ten year plea and the solicitor declined. Counsel testified she made it clear to Applicant that the offer was fifteen and would not change. She testified Applicant told her he had a lot of pride. Counsel testified a week before trial she relayed the fifteen year offer again and went over everything concerning the trial. She testified Applicant ultimately did not accept the fifteen
year offer. Counsel further testified Applicant maintained his innocence [and] was adamant about proceeding to trial.
This Court finds Applicant failed to prove Counsel was ineffective in this regard. To be successful on an allegation of an unconveyed plea offer, Applicant must prove: (1) trial counsel's failure to communicate the State's initial plea offer constituted deficient performance, and (2) Petitioner was prejudiced by the deficient performance, or there was a reasonable probability that but for this deficient performance, he would have accepted the original plea offer. Davis v. State, 381 S.C. 601, 608, 675 S.E.2d 416, 420 (2009). Generally, failure to convey a plea offer constitutes deficient performance, although the existence of prejudice needs to be evaluated on a case-by-case basis. Id. at 613, 675 S.E.2d at 422. To show prejudice from a failure to convey a plea offer, Applicant must:
demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time
Missouri v.Frye, 566 U.S. 134, 147, 132 S.Ct. 1399, 1409 (2012).
This Court finds Counsel provided credible testimony that she conveyed the State's fifteen year plea offer to Applicant several times prior to trial, after discussions about the facts of the case. This Court finds Counsel made it clear to Applicant the offer was for fifteen years and not ten years, and Applicant ultimately rejected the offer. This Court finds Counsel was not deficient in relaying the plea offer. This Court further finds Applicant has failed to meet his burden of proving he was prejudiced, as he has failed to show he would have accepted the plea offer but for Counsel's performance. This Court finds Counsel provided credible testimony that Applicant rejected the plea offer and was adamant about proceeding to trial. As Applicant has failed to meet his burden of proving Counsel's actions were ineffective in this regard, this allegation must be dismissed.
IV. CONCLUSION
Based on all the foregoing facts, the Court finds and concludes that Applicant has not established any constitutional violations or deprivations that would require this court to grant his application for post-conviction relief. Applicant has failed to demonstrate that Counsel's performance was unreasonable under prevailing professional norms. Cherry, 300 S.C. at 117-18, 386 S.E.2d at 625; Stalk v. State, 383 S.C. 559, 563, 681 S.E.2d 592, 594 (2009). Therefore, this application for post-conviction relief must be denied and dismissed with prejudice.
The Court notes Applicant must file and serve a notice of appeal within thirty (30) days from PCR counsel's receipt of written notice of entry of judgment to secure the appropriate appellate review. See Rule 203, SCACR. Pursuant to Austin v. State, 305 S.C. 453 (1991), Applicant has a right to an appellate Counsel's assistance in seeking review of the denial of PCR. Rule 71.1(g), SCRCP, provides that if the Applicant wishes to seek appellate review, PCR Counsel must serve and file a Notice of Appeal on the Applicant's behalf. Applicant is directed to South Carolina Appellate Court Rule 227 for appropriate procedures for appeal.App. 1332-39. Thereafter, on October 22, 2018, Appellate Defender Susan Hackett filed a Petition for Certiorari on Petitioner's behalf. ECF No. 16-10. In his Petition for Certiorari, Petitioner presented the following issue for review: “Did trial counsel provide ineffective assistance in derogation of Petitioner's rights pursuant to the Sixth and Fourteenth Amendments to the United States Constitution by failing to present an alibi witness from an available witness?” Id. at 3. Senior Assistant Deputy Attorney General J. Benjamin Aplin filed a Return on behalf of the State. ECF No. 16-11. After the case was transferred, see ECF No. 16-12, the South Carolina Court of Appeals denied the petition, and issued the Remittitur on December 15, 2020, ECF No. 16-14. This federal habeas Petition followed and was filed on April 24, 2021. ECF No. 1.
III. Discussion
A. Federal Habeas Issues
Petitioner raises the following issues in his federal Petition for a Writ of Habeas Corpus, quoted verbatim:
GROUND ONE: Petitioner's trial counsel provided ineffective assistance of counsel when she failed to call Kayla Higgs as an alibi witness in violation of his constitutionally protected Sixth Amendment rights.
GROUND TWO: The South Carolina Court of Appeals erred when it denied Petitioner's claim that the trial court erred in refusing to grant Petitioner's motion for a mistrial based on the prosecutor's failure to disclose evidence favorable to Petitioner and material to his guilt in violation of Petitioner's state and federal constitutional rights.
GROUND THREE: The evidence in Petitioner's case is insufficient to sustain his conviction (Jackson v. Virginia, 443 U.S. 307 (1979)).ECF No. 1 at 20, 26, 30.
B. Standard for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, 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, “[o]nly 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.” Id. at 248.
C. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 397-98 (2000). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 410.
a. Deference to State Court Decisions
Courts afford deference to state courts' resolutions of the habeas claims of state prisoners. See Bell v. Cone, 543 U.S. 447, 455 (2005). The Supreme Court has provided further guidance regarding the deference due to state-court decisions. Harrington v. Richter, 562 U.S. 86 (2011); Cullen v. Pinholster, 131 S.Ct. 1388 (2011). To obtain habeas relief from a federal court, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was 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. “[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102. The Court further stated: “If this standard is difficult to meet, that is because it was meant to be.” Id.; see Richardson v. Branker, 668 F.3d 128, 137-44 (4th Cir. 2012) (quoting Harrington extensively and reversing district court's grant of writ based on his ineffective assistance of counsel claims).
In interpreting § 2254(d)(1) and discussing the federal courts' role in reviewing legal determinations made by state courts, the United States Supreme Court held as follows:
[A] federal court may grant a writ of habeas corpus if the relevant state-court decision was either (1) “contrary to . . . [clearly] established Federal law as determined by the Supreme Court of the United States, ” or (2) “involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.Williams v. Taylor, 529 U.S. 362, 404-05 (2000) (quoting from § 2254(d)(1)). “Clearly established Federal law in § 2254(d)(1) refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams, 529 U.S. at 412). In considering whether a state-court decision is “contrary to” clearly established federal law, the federal court may not grant relief unless the state court arrived at a conclusion opposite to that reached by the Supreme Court on a legal question, the state court decided the case differently than the Court has on facts that are materially indistinguishable, or if the state court “identifie[d] the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applie[d] that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 405-13. The “unreasonable application” portion of § 2254(d)(1) “requires the state court decision to be more than incorrect or erroneous[, ]” it “must be objectively unreasonable, ” which is a higher threshold. Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citation omitted).
Section 2254(e)(1) requires the federal court give a presumption of correctness to state-court factual determinations and provides that a petitioner can only rebut such a presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Accordingly, a habeas petitioner is entitled to relief under § 2254(d)(2), only if he can prove, by clear and convincing evidence, that the state court unreasonably determined the facts in light of the evidence presented in state court.
b. Ineffective Assistance of Counsel
The Sixth Amendment provides a criminal defendant the right to effective assistance of counsel in a criminal trial and first appeal of right. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court announced a two-part test for adjudicating ineffective assistance of counsel claims. First, a petitioner must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 687. Second, the petitioner must show that this deficiency prejudiced the defense. Id. at 694. The United States Supreme Court's 2011 decisions cited previously elaborate on the interplay between Strickland and § 2254, noting the standards are “both highly deferential, ” and “when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal quotation marks omitted); Pinholster, 131 S.Ct. at 1403.
Further, in Pinholster, the Court held for the first time that the federal court's habeas review under § 2254(d)(1) is limited to the record before the state court that adjudicated the claim on the merits. 131 S.Ct. at 1398. The Court explained that “review under § 2254(d)(1) focuses on what a state court knew and did.” Id. at 1399. In the Pinholster case, the district court had conducted an evidentiary hearing and considered new evidence in connection with its review and granting of the petitioner's writ based on a finding of ineffective assistance of counsel. Id. at 1397. In an en banc decision, the Ninth Circuit Court of Appeals affirmed the district court's grant of the writ. Id. The United States Supreme Court granted certiorari and reversed the Ninth Circuit, finding that the district court should not have considered additional evidence that had not been available to the state courts. 131 S.Ct. at 1398. Because the federal habeas scheme “leaves primary responsibility with the state courts, ” and “requires that prisoners ordinarily must exhaust state remedies, ” the Court held that to permit new evidence to be presented in a federal habeas court “would be contrary to that purpose.” 131 S.Ct. at 1399 (internal citation and quotation marks omitted).
When a petitioner raises in a § 2254 habeas petition an ineffective-assistance-of-counsel claim that was denied on the merits by a state court, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable[, ]” not “whether defense counsel's performance fell below Strickland's standard.” Harrington, 562 U.S. at 101. “For purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Id. (citing Williams, 529 U.S. at 410) (emphasis in original). “A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id.
2. Procedural Bar
Federal law establishes this court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person “is in custody in violation of the Constitution or laws or treaties of the United States[, ]” and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. 28 U.S.C. § 2254(a)-(b). The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require that a habeas petitioner first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
a. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court, shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) overruled on other grounds by U.S. v. Barnette, 644 F.3d 192 (4th Cir. 2011). Thus, a federal court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal; or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203, SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). If the PCR court fails to address a claim as is required by section 17-27-80 of the South Carolina Code, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will result in the application of a procedural bar by the South Carolina Supreme Court. Marlar v. State, 653 S.E.2d 266, 267 (S.C. 2007). Strict time deadlines govern direct appeals and the filing of a PCR in the South Carolina courts. A PCR must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.
Furthermore, in filing a petition for habeas relief in the federal court, a petitioner may present only those issues that were presented to the South Carolina Supreme Court or the South Carolina Court of Appeals. See State v. McKennedy, 559 S.E.2d 850, 853 (S.C. 2002) (holding “that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error”) (quoting In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454, 454 (S.C. 1990)).
b. Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the United States Supreme Court explains:
[state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984).
However, if a federal habeas petitioner can show both (1) “‘cause' for noncompliance with the state rule[, ]” and (2) “‘actual prejudice resulting from the alleged constitutional violation[, ]'” the federal court may consider the claim. Smith v. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Murray v. Carrier, 477 U.S. 478, 496 (1986).
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met and the rules of procedural bar apply. See Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996)).
3. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the South Carolina Supreme Court in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or that a “fundamental miscarriage of justice” has occurred. Murray v. Carrier, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor that hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Id. Absent a showing of cause, the court is not required to consider actual prejudice. Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray v. Carrier, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
IV. Analysis
A. Procedurally Barred Grounds
Respondent concedes that Petitioner's first habeas ground was properly exhausted “by presentation of the issue in the 2016 PCR action and in the 2016 PCR appeal.” ECF No. 16 at 17.Further, Respondent concedes that Petitioner's second habeas ground was properly exhausted by being ruled upon on direct appeal by the South Carolina Court of Appeals. Id. However, Respondent argues that Petitioner's third habeas ground is not ripe for review. Id. at 18. Respondent acknowledges that Petitioner raised a directed verdict motion based on the sufficiency of evidence, and the trial court denied the motion, even after renewal of the motion after the jury's verdict. Id. However, Respondent argues that Petitioner did not raise this issue in a direct appeal, and therefore, it is defaulted and not available for review on the merits. Id.
Notably, Petitioner filed an application for PCR in 2016, and an amendment to the PCR application in 2018. App. 1261, 1274. The PCR hearing and appeal took place from 2018-2020.
As mentioned in the procedural history, on direct appeal Petitioner raised the following issue: “Did the trial judge err in refusing to grant the motion for mistrial based on the prosecutor's failure to disclose evidence favorable to [Petitioner] and material to his guilt in violation of [Petitioner's] state and federal constitutional rights?” App. 1214-1225. In his PCR appeal, Petitioner raised the following issue: “Did trial counsel provide ineffective assistance in derogation of Petitioner's rights pursuant to the Sixth and Fourteenth Amendments to the United States Constitution by failing to present an alibi witness from an available witness?” ECF No. 16-10 at 3.
In response to Ground Three being procedurally barred, Petitioner argues the court should use the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979), to deny summary judgment because the trier of fact could not have found the essential elements of each crime proven beyond a reasonable doubt. ECF No. 19 at 5. Though Petitioner admits this ground was not exhausted in the state court system, he maintains there is insufficient evidence to maintain this conviction. Id. Further, “Petitioner submits that his trial counsel should have argued the elements to sustain his conviction were not met at trial and therefore the case never should have been submitted to the jury.” Id. Additionally, Petitioner argues that but for the fact that he was tried with his co-defendant, a reasonable jury could not have found him guilty, and there was insufficient evidence to prove that Petitioner was one of the perpetrators of these crimes. Id.
The undersigned finds that no South Carolina appellate court ruled on whether the trial court erred in denying Petitioner's Motion for Directed Verdict. Therefore, it is not preserved for habeas review. See, e.g. Pickard v. Connor, 404 U.S. 270, 278 (1971) (“We simply hold that the substance of a federal habeas corpus claim must first be presented to the state courts.”); Baker v. Corcoran, 220 F.3d 276, 288 (4th Cir. 2000) (“[A] federal court may not grant a writ of habeas corpus to a petitioner in state custody unless the petitioner has first exhausted his state remedies by presenting his claims to the highest state court.”); Williams v. Warden, No. 4:08-2312-SB, 2009 WL 3052487, at *13 (D.S.C. Sept. 23, 2009) (finding that because petitioner “did not properly present this claim to the state's highest court in a procedurally viable manner when he had the opportunity, and the state courts would find any attempt to raise the claim now to be procedurally improper, then the claim is procedurally barred from review in federal habeas corpus”). Accordingly, the undersigned will not address habeas Ground Three on the merits. However, Petitioner's Grounds One and Two have been exhausted and are properly before the court for a review on the merits.
B. Merits
1. Ineffective Assistance of Counsel Based on Failure to Call Witness
In Ground One Petitioner alleges ineffective assistance of trial counsel. The Sixth Amendment to the United States Constitution guarantees a defendant the right to effective assistance of counsel in a criminal prosecution. McMann v. Richardson, 397 U.S. 759, 771 (1970). In Strickland v. Washington the Supreme Court held that to establish ineffective assistance of counsel, a petitioner must show deficient performance and resulting prejudice. 466 U.S. at 687. Counsel renders ineffective assistance when his performance “[falls] below an objective standard of reasonableness, ” but there is a “strong presumption” that counsel's performance was professionally reasonable. Id. at 688-89. Prejudice requires a showing “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
Petitioner maintains he received ineffective assistance of trial counsel because his trial counsel failed to call Kayla Higgs as an alibi witness. ECF No. 1 at 21. Petitioner argues that in adjudicating his claim, the state court unreasonably applied the facts to his case. Id. at 22. Specifically, Petitioner represents that Ms. Higgs had “critical information pertinent to [his] guilt or innocence.” Id. Based on the information from Ms. Higgs, Petitioner contends he had a “complete alibi” from 6:00 pm on the night of June 8, 2011, through 6:00 am and beyond on the morning of June 9, 2011. Id. at 23. Petitioner represents that his trial counsel was unaware that Ms. Higgs could serve as an alibi witness even though he had always maintained his innocence. Id. He argues that his trial counsel's decision to release Ms. Higgs as a witness “undoubtedly fell below the ‘prevailing professional norms,' even by her own admission.” Id. at 24. Petitioner argues this mistake was highly prejudicial because his alibi was crucial to his defense of mistaken identity. Id.
Respondent argues resolution of this issue largely depends on the credibility determination of the PCR court. ECF No. 16. at 20. Further, Respondent argues that the PCR court carefully weighed the evidence presented and resolved that trial counsel was credible, more so than the offered witness. Id. Respondent indicates that this credibility finding is entitled to deference. Id. While acknowledging that Petitioner may overcome this presumption of correctness by showing “clear and convincing evidence to the contrary, ” Respondent argues Petitioner has shown no cause to discount the PCR court's findings. Id. at 20-21.
In Response, Petitioner disagrees with Respondent's assertion that the PCR court's credibility determination concerning trial counsel and Ms. Higgs is entitled to deference. ECF No. 19 at 2. Petitioner takes issue with the PCR court's finding that Ms. Higgs never informed trial counsel that she was available as an alibi witness, while in the Order of Dismissal, “the PCR court explicitly found that Ms. Higgs' testimony was credible in the testimony that she provided at the PCR hearing.” Id. Further, Petitioner argues that “trial counsel had the duty to perform an objective and independent investigation into the facts of the case.” Id. Finally, Petitioner maintains that Strickland places the onus of conducting an investigation on trial counsel, and the PCR court unreasonably applied Strickland to his case by imposing that obligation on him. Id. at 3. In Reply, Respondent argues that in her PCR testimony Ms. Higgs “alleges that she did review the alibi with [trial counsel] prior to trial.” ECF No. 20 at 1 (citing App. 1300). However, trial counsel testified that no such discussions were had. Id. (citing App. 1307). Further, Respondent maintains the PCR court noted the conflicting statements made during the PCR hearing. Id.
During the PCR hearing, Petitioner testified that “mistaken identity” was his main defense during his criminal trial because no DNA or other physical evidence could place him at the crime scene. App. 1288. He recalled meeting with his trial counsel “a lot” or several different times prior to trial. Id. Further, he testified that Ms. Higgs was listed as a witness for both his trials but was not called for either one. App. 1292. Ms. Higgs testified during the PCR hearing and recalled that she was with Petitioner on the night of the incident. App. 1294-95. Specifically, when asked what they were doing, she testified: “[W]e carried on with our regular daily routines. I worked til 6:00 o'clock. My car tore up the day of, so he had to take me to work. He picked me up from work at 6:00. We went home, same routine as every other night, dinner, bath time for our daughter and bedtime.” App. 1295. Ms. Higgs testified that their daughter went to bed at 8:30, and they went to bed around 10:30, and they just hung out between the two bedtimes. Id. at 1295-96. Further, Ms. Higgs testified that Petitioner was with her when she went to bed and was there in the morning-that she would have heard him get up, and she is a light sleeper. Id. at 1296-97. Ms. Higgs testified that she was listed as a witness for Petitioner for his second trial, but she recalled being released as a witness at some point during the course of the trial. Id. at 1297. When asked why trial counsel did not want to use her as an alibi witness, Ms. Higgs testified: “We talked about it, but she just felt as if we didn't need to do so, so I never questioned her. I just went with it.” Id. at 1300.
Upon questioning during the PCR hearing, trial counsel testified that Petitioner asked that she remain in contact with Ms. Higgs. App. 1307. She recalled that Ms. Higgs came by her office a lot and “[n]ot one time did they mention that [Ms.] Higgs was an alibi witness.” Id. She testified it was her obligation as a defense attorney to then turn over that type of information to the State. Id. at 1307-08. She testified it is her process to sit down with an accused and ask “if there are any other additional witnesses or any locations where [she] could, actually, obtain surveillance. . . .” Id. at 1308. Trial counsel recalled that she initially included Ms. Higgs as a witness out of an abundance of caution because she lists all potential witnesses. Id. She testified that Ms. Higgs never asked to be a witness, and they had communicated frequently during the trial. App. 1309.
Though the PCR court determined that Ms. Higgs “appeared credible at the PCR hearing, ” the PCR court determined that trial counsel's testimony was also credible and “more believable than Ms. Higgs' testimony.” App. 1333. Further, the PCR court found that trial counsel testified that she was never told about a possible alibi witness despite meeting with Petitioner and Ms. Higgs numerous times. Id. Based on the testimony, the PCR court found that Petitioner failed to meet his burden of proving that trial counsel acted unreasonably or that she failed to investigate something known to her at the time of trial. Id.
The undersigned finds that trial counsel did not err in failing to call Ms. Higgs as a witness during Petitioner's criminal trial. The undersigned agrees that this court must give deference to the state court's determination concerning credibility. Merzbacher v. Shearin, 706 F.3d 356, 364 (4th Cir. 2013) (citing Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (quoting Marshall v. Lonberger, 459 U.S. 422, 434 (1983)) (alteration in original) (holding under § 2254 “‘federal habeas courts [have] no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.'”); Id. (“We have repeatedly emphasized the deferential standard of review, especially of a state court's credibility findings.”); Wilson v. Ozmint, 352 F.3d 847, 858 (4th Cir. 2003) (“Credibility determinations, such as those the state . . . court made regarding [a witness], are factual determinations. As such, they ‘are presumed to be correct absent clear and convincing evidence to the contrary, and a decision adjudicated on the merits and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state court proceeding.'”).
Moreover, even if trial counsel had erred in failing to call Ms. Higgs as a witness, the undersigned finds it to be harmless error. As the PCR court found: “The t-shirt which was pulled up over [Petitioner's] face fell down during the robbery, uncovering the face. The victim even smiled when the robbery started as he thought [Petitioner] was ‘playing.'” App. 1334. In other words, the undersigned finds that there is not a reasonable probability that, but for counsel's alleged error, the result of Petitioner's criminal trial would have been different. Accordingly, the undersigned finds that Petitioner has failed to demonstrate that the PCR court erred in finding his trial counsel was effective under Strickland. The undersigned does not find that the PCR court's legal analysis under Strickland was objectively unreasonable. Here, Petitioner has failed to show that the state court's ruling was “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. Furthermore, the undersigned does not find that the state court unreasonably applied a governing legal principle or made an unreasonable determination of the facts in light of the evidence pursuant to § 2254(d)(1). As a result, the undersigned recommends granting Respondent summary judgment concerning Ground One and dismissing it as it is without merit.
2. Trial court error based on failure to disclose favorable evidence
In Ground Two Petitioner argues the South Carolina Court of Appeals erred when it denied Petitioner's claim that the trial court erred in refusing to grant Petitioner's motion for a mistrial based on the prosecutor's failure to disclose evidence favorable to Petitioner and material to his guilt. ECF No. 1 at 26. Specifically, Petitioner maintains that Detective Stokes referred to a CAD report during his trial testimony that had not been provided to defense counsel in discovery. Id. at 26-27. According to Petitioner, trial counsel moved for a mistrial upon discovery of the CADreport after the trial court determined that it was not protected work product. Id. at 27. After summarizing trial counsel's arguments concerning why the CAD report was exculpatory evidence, Petitioner argues the trial court erred in finding that the evidence was not exculpatory and should have granted his motion for a mistrial. Id. at 28. Respondent argues the CAD report was available at trial, and, at any rate, was reasonably found not material under Brady v. Maryland, 373 U.S. 83 (1963) such that a mistrial was warranted. ECF No. 16. at 22.
CAD refers to a “computer aided dispatch report.”
During Petitioner's criminal trial, Investigator Stokes was questioned about his arrival at the crime scene. App. 1001-1071. He testified about what he knew about possible suspects upon his arrival, such as a general description of the suspects, names, and a description of a vehicle involved. App. 1011. He testified that he was told there were possibly three black males in their twenties involved, driving a “black, older style” Jeep Cherokee. App. 1011-13. Investigator Stokes testified that this information was contained in the original incident report, and, in reading from his “operations report” or “CAD report, ” explained that there was a call to dispatch at 10:41, and he was paged at 10:50. App. 1013-14. Trial counsel then asked Investigator Stokes if he had turned over his CAD report in discovery, at which point the jury was instructed to leave the courtroom. App. 1014.
Outside the presence of the jury, trial counsel then moved for a mistrial “simply because the investigator, lead head investigator, has actually testified there are two things that the State has failed to actually disclose in their evidence.” Id. Trial counsel referenced the investigative notes and the “CAD” report or the communications report and argued that the information withheld was “exculpatory information of course that would manifest a prejudice toward our client. . . .” App. 1014-15. The other defense counsel joined in the motion, and in response the Solicitor argued that the notes were “work product.” App. 1015-16. The trial court quickly found the notes were not privileged under work product because they had not been provided to an attorney. App. 1016. The Solicitor then argued that the notes were essentially the same thing as the Investigator's case summary. App. 1016-17. The court instructed that copies be made of these notes and distributed to the defense. App. 1017.
Upon returning to court after a break, the trial court confirmed that the three-page CAD report had been provided to the defense during the break, and there were no other investigative notes. App. 1018. One of the defense lawyers argued that a Brady violation had occurred, and the information could have been used to impeach trial witnesses. Id. The trial court then questioned trial counsel regarding what in the information could have been seen as inconsistent-he recalled that there had already been information provided about “three males so that's nothing new.” App. 1018-19. Trial counsel argued that documentation of the men speaking to each other could have been used to impeach trial witnesses. App. 1020. Ultimately, the trial judge found that though the report should have been disclosed, there was no prejudice to the Defendants because there were “really no real differences.” App. 1023-24. Further, he reasoned: “This CAD report does talk about talking to each other and they've admitted that there was some conversation. This does not say what that conversation was and this not - this is all hearsay anyway. The whole report's hearsay.” App. 1024. He continued to find that though evidence of a suspect having a stab wound could have had some value, it was not “sufficiently prejudicial” or “exculpatory in any way whatsoever.” Id. After the trial court's ruling, the jury returned, and trial counsel continued to question Investigator Stokes. App. 1028-29.
As indicated above, Petitioner appealed this issue, and the South Carolina Court of Appeals affirmed the trial court's ruling. App. 1258-59. Citing to the Brady test, the appellate court held that the withheld evidence was not material or outcome determinative. Id. Withholding of evidence in a criminal trial violates several rules and possibly constitutes a Brady violation that could warrant the granting of a new criminal trial. It appears that the CAD report was disclosed during the trial, and thereafter, trial counsel used the report on cross examination. App. 1017-1060. Here, Respondent asserts no prejudice occurred due to the late turnover of the report because, as the trial court found, the information contained therein was either cumulative evidence or unhelpful to the defense. ECF No. 16 at 23-25.
In Brady, the Supreme Court held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or to punishment, irrespective of the good faith of the prosecution.” 373 U.S. 83, 87 (1963). In United States v. Agurs, the Supreme Court extended Brady and held that the duty to disclose is applicable even though there has been no request by the accused. 427 U.S. 97 (1976). A Brady violation has three essential elements: (1) the evidence must be favorable to the accused; (2) it must have been suppressed by the government, either willfully or inadvertently; and (3) the suppression must have been material, i.e., it must have prejudiced the defense at trial. Monroe v. Angelone, 323 F.3d 286, 299 (4th Cir. 2003). As the Supreme Court held in Strickler v. Greene, to demonstrate a Brady violation a petitioner must “convince us that there is a reasonable probability that the result of the trial would have been different if the suppressed documents had been disclosed to the defense.” 527 U.S. 263, 289 (1999).
In considering the first Brady prong, the undersigned finds the CAD Report was favorable to the accused in that it could have been used to impeach witnesses regarding the number of suspects at the scene of the incident and the amount of money stolen. Petitioner argues that evidence of an injured suspect with a stab wound could have made a difference at his trial because it could have been used to “mount a defense of self-defense.” See id.; ECF No. 19 at 4. Therefore, the undersigned finds that Petitioner has satisfied the first Brady prong. Additionally, the undersigned finds this evidence was withheld by the State-it appears the State concedes the evidence was withheld as does the trial transcript. Therefore, the undersigned finds, whether willfully or inadvertently, the State withheld the CAD Report from Petitioner prior to the start of his criminal trial, thus satisfying the second prong of Brady.
The undersigned obtained a copy of the CAD report from Respondent after instructing a copy be provided to the court. The undersigned has reviewed the entirety of the three-page report as well as both parties' arguments in making this determination. See ECF Nos. 21, 23.
Thus, the issue before the court is whether Petitioner was prejudiced by not receiving the report earlier in the case. On this issue, Petitioner has failed to meet his burden. The undersigned agrees with South Carolina Court of Appeals' finding that the information in the CAD report was not material. As indicated above, key evidence presented at trial, including eye-witness identifications, implicated Petitioner. App. 618-20; 826. One of the victims testified that he recognized Petitioner because he came to the location of the crime scene, an automotive shop, “pretty much every other day.” App. 624. The other victim testified that he saw Petitioner “run by with his shirt just over the tip of his nose so [he] could still - knew it was him.” App. 826. Based on the accounts from the victims and other evidence the State offered, the undersigned does not find the information from the CAD report would have offered anything material to the defense of the case.
Therefore, the undersigned finds that there is not a reasonable probability that, had Petitioner received the CAD report prior to the beginning of trial, the result of Petitioner's criminal trial would have been different. Accordingly, the undersigned finds that Petitioner has failed to demonstrate that the appellate court erred in finding a Brady violation did not occur. As a result, the undersigned recommends granting Respondent summary judgment concerning Ground Two and dismissing it as it is without merit.
V. Conclusion and Recommendation
Therefore, based upon the foregoing, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 17, be GRANTED and the Petition be DENIED. IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”