Opinion
C. A. 1:21-3718-HMH-SVH
03-23-2022
Richard E. Tedford, #365731, Petitioner, v. Warden Lieber Correction Institution, Respondent.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
Richard E. Tedford (“Petitioner”) is an inmate at the Lieber Correctional Institution of the South Carolina Department of Corrections who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's return and motion for summary judgment filed on February 3, 2022. [ECF Nos. 14, 15]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 16]. Petitioner filed a response to the motion on February 16, 2022. [ECF No. 18].
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Respondent's motion for summary judgment.
I. Factual and Procedural Background
In October 2014, Petitioner was indicted by the Greenville County grand jury on two counts of first-degree burglary (2014-GS-23-596, 2013-GS-23-10427) and two counts of grand larceny (2014-GS-23-597, 2013-GS-23-10428). [ECF No. 14-5 at 81-88]. Petitioner proceeded to a three-day jury trial beginning October 13, 2015, before the Honorable Perry H. Gravely, Circuit Court Judge. [ECF No. 14-1 at 3]. Petitioner was represented by Richard Warder, Esq. (“Warder”). Assistant Solicitor Mark Moyer (“Moyer”) represented the State. Id.
Prior to trial, Plaintiff made multiple pre-trial motions, including challenging the application of his two 1992 prior convictions for burglary to his counts for first-degree burglary to be addressed at trial. See Id. at 9-12; see also S.C. Code Ann. § 16-11-311 (providing that is a person is guilty of burglary in the first degree if the person enters a dwelling without consent and with the intent to commit a crime in the dwelling and there are aggravating facors such as the person has a prior record of two or more convictions for burglary or housebreaking).
Specifically, Warder argued that even though Petitioner admitted that he pled guilty to the burglaries in Spartanburg many years prior, where the burglaries occurred on the same day, to adjoining houses, and where Petitioner made one plea bargain as to both counts, these burglaries “do not constitute two prior burglaries as contemplated in the statute” or as intended by the legislature. [ECF No. 14-1 at 9-10, 12]. Petitioner's motion was denied. Id.
During trial, evidence was presented concerning two break-ins that occurred on August 13, 2013, at homes owned by Melody Wilbanks (“Wilbanks”) and Brian Walker (“Walker”). At closing arguments, Moyer stated in part as follows:
So let's analyze the law in light of Ms. Wilbanks' burglary. Certainly someone coming through a window of a house is entering and is doing so without permission. There's no doubt about that. And there's clearly an intent to commit a crime in Ms. Wilbanks' home. Now, keep in mind, it can be any crime. So breaking into a house or building with the intent to hurt somebody, the intent to steal something, maybe commit an arson . . . . Now, Ms. Wilbanks' home, we know that he stole property. So we know there was an intent to commit a crime. We also know that he was following Ms. Wilbanks into her bedroom where she's hiding to get away from him. And did he also enter that home with the intention of rape? Did he intend to do that only when he saw Ms. Wilbanks come into the room naked? Or did he not have an intention of rape. We know he certainly was going after her. We don't know for sure. We don't know and probably never will. But he came in the home and that is what he did.[ECF No. 14-4 at 76-77].
The jury convicted Petitioner of first-degree burglary and grand larceny concerning the Wilbanks' home and second-degree burglary and petit larceny concerning the Walker's home. Id. at 129-30. Petitioner was sentenced to concurrent terms of 23 years' imprisonment for first-degree burglary, 12 years for second-degree burglary, 10 years for grand larceny, and 30 days imprisonment for petit larceny. Id. at 143-44.
Following trial, the trial court granted Petitioner a directed verdict on one count of first-degree burglary because the State failed to prove the crime scene was a dwelling, in that no one lived in the Walker home at the relevant time, reducing it to second-degree burglary. [ECF No. 14-2 at 222-26, ECF No. 14-3 at 1-6, 11-13]. The trial court also granted Petitioner a directed verdict on one count of grand larceny because the State agreed it failed to prove the required value of the items stolen, reducing it to petit larceny. [ECF No. 14-3 at 6-9].
Petitioner filed an appeal with the South Carolina Court of Appeals (“Court of Appeals”), presenting the following issue on appeal:
Whether the trial court erred in denying appellant's motion to consider two twenty-three-year-old burglary convictions that happened on the same day and were pled at the same time as only one conviction for purposes of enhancing appellant's charges to first-degree burglary and second-degree burglary?Id. at 149. In briefing, Petitioner relied on S.C. Code Ann. § 17-25-50, which provides:
In determining the number of offenses for the purpose of imposition of sentence, the court shall treat as one offense any number of offenses which have been committed at times so closely connected in point of time that they may be considered as one offense, notwithstanding under the law they constitute separate and distinct offenses.See Id. at 155-56.
The State argued as follows:
Initially, the State submits that to the extent Appellant's argument depends on the contention that the trial Court's decision should have been controlled by Section 17-25-50 of the Code, that argument is not preserved for appellate review because it was never raised to or ruled upon by the trial court. State v. Dunbar. 356 S.C. 138, 142, 587 S.E.2d 691, 693-94 (2003). If an error is not presented to and ruled upon by the trial court, it cannot be raised for the first time to the appellate court. State v. Freiburger, 366 S.C. 125, 135, 620 S.E.2d 737, 742 (2005). Indeed, the appellate court will not consider any issues that were not presented to or passed upon by the trial court. State v. Fleming, 254 S.C. 415, 421, 175 S.E.2d 624, 627 (1970). Thus, Appellant's argument is not preserved for appellate review.Id. at 173.
The Court of Appeals affirmed the convictions and sentences on July 19, 2017, noting as follows:
Affirmed pursuant to Rule 220(b), SCACR, and the following authorities: State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 693-94 (2003) (“Issues not raised and ruled upon in the trial court will not be considered on appeal.”); id. at 142, 587 S.E.2d at 694 (“A party may not argue one ground at trial and an alternate ground on appeal.”).Id. at 184-85. Petitioner did not file a petition for rehearing. The Court of Appeals issued the remittitur on August 8, 2017. Id. at 186.
On October 10, 2017, Petitioner filed an application for post-conviction relief (“PCR”). Id. at 187. On June 20, 2018, the parties appeared before the Honorable Letitia H. Verdin, Circuit Court Judge, for a PCR hearing. [ECF No. 14-5 at 13]. Rodney W. Richey, Esq. represented Petitioner, and Deshawn H. Mitchel, Esq. appeared for the State. Id. Petitioner alleged ineffective assistance of trial counsel for failing to (a) combine charges, (b) object to closing arguments, (c) ask voir dire questions, (d) investigate Petitioner's mental health, (e) properly cross-examine, and (f) object to amendment of indictment. [ECF No. 14-4 at 187-209, ECF No. 14-5 at 71-80].
Petitioner also argued ineffectiveness of appellate counsel, but withdrew those claims at the PCR hearing. [See ECF No. 14-4 at 187-209, ECF No. 14-5 at 29-30].
On October 23, 2018, Judge Verdin issued her decision, denying Petitioner's PCR application. [ECF No. 14-5 at 59-80]. Petitioner appealed the ruling, seeking a writ of certiorari from the South Carolina Supreme Court, arguing the following issue as presented:
Whether the PCR court erred in finding counsel provided effective representation in petitioner's burglary trial where counsel failed to object to the solicitor's closing argument that petitioner wanted to rape the complainant, where this was not a reasonable inference as the argument was based solely on the fact that the complainant was nude but there was no showing the intruder knew she was nude, since this allowed impermissible fear and speculation to infect petitioner's trial?[ECF No. 14-6 at 3]. The petition was transferred to the Court of Appeals, which denied the writ for certiorari. [ECF No. 14-8]. The remittitur was issued November 22, 2021. [ECF No. 14-9].
II. Discussion
A. Federal Habeas Issues
Petitioner asserts he is entitled to a writ of habeas corpus on the following grounds:
Ground One:Applicant entered a guilty plea two second degree non-violated burglary charges on June 3, 1992, in Spartanburg County. Trial Counsel made a pretrial motion to have his two prior burglary convictions treated as one conviction for purposes of the state's attempts to prove the elements of first-degree burglary. During this pretrial motion, trial counsel failed to cite statutes and case law in support of Petitioner's position concerning and two or more offenses counting as one conviction for sentencing purposes. Petitioner asserts that his prior burglary conviction was offered for sentencing purposes in 1992 and [trial counsel] wasn't prepared to argue against his being sentenced pursuant to enhanced charges . . . . Post-conviction counsel . . . failed to put in for a Rule 59e. All issues were not ruled on. Ineffective assistance of counsel.
Ground Two:The PCR court erred in finding Counsel provided effective representation in Petitioner's burglary trial where counsel failed to object to the solicitor's closing argument that Petitioner wanted to rape the complainant, where this was not a reasonable inference as the argument was based solely on the fact that the complainant was nude but there was not showing the intruder knew she was nude. Since this allowed impermissible fear and speculation to infect Petitioner's trial.[ECF No. 1 at 5-6 (spelling and punctuation altered)].
B. Standard for Summary Judgment
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255.
The moving party has the burden of proving summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by Fed.R.Civ.P. 56(c), set forth specific facts showing there is a genuine dispute for trial.
C. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Noland v. French, 134 F.3d 208, 213 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362, 398 (2000). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 410. Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
2. Procedural Bar
Federal law establishes this court's jurisdiction over habeas corpus petitions. 28 U.S.C. § 2254. This statute permits relief when a person “is in custody in violation of the Constitution or laws or treaties of the United States[, ]” and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require a habeas petitioner to first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
a. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court, shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254.
The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. § 17-27-10, et seq.; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767 (S.C. 1976). If the PCR court fails to address a claim as is required by S.C. Code Ann. § 17-27-80, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will result in the application of a procedural bar by the South Carolina Supreme Court. Marlar v. State, 653 S.E.2d 266 (S.C. 2007). Furthermore, strict time deadlines govern direct appeal and the filing of a PCR in the South Carolina courts. A PCR must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. § 17-27-45.
In Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009), the Fourth Circuit found that, prior to the Supreme Court of South Carolina's November 5, 2007 decision in Marlar, South Carolina courts had not been uniformly and strictly enforcing the failure to file a motion pursuant to Rule 59(e), SCRCP, as a procedural bar. Accordingly, for matters in which there was a PCR ruling prior to November 5, 2007, the court will not consider any failure to raise issues pursuant to Rule 59(e) to effect a procedural bar.
The United States Supreme Court has held that “state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process”-which includes “petitions for discretionary review when that review is part of the ordinary appellate review procedure in the State.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This opportunity must be given by fairly presenting to the state court “both the operative facts and the controlling legal principles” associated with each claim. Baker v. Corcoran, 220 F.3d 276, 289 (4th Cir. 2000) (internal citations omitted). That is to say, the ground must “be presented face-up and squarely.” Mallory v. Smith, 27 F.3d 991, 995 (4th Cir. 1994) (citation and internal quotation marks omitted).
The South Carolina Supreme Court has held that the presentation of claims to the state court of appeals without more is sufficient to exhaust state remedies for federal habeas corpus review. State v. McKennedy, 559 S.E.2d 850 (S.C. 2002); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454 (S.C. 1990). The McKennedy court held that In re Exhaustion had placed discretionary review by the South Carolina Supreme Court “outside of South Carolina's ordinary appellate review procedure pursuant to O'Sullivan.” 559 S.E.2d at 854. As such, it is an “extraordinary” remedy under O'Sullivan, “technically available to the litigant but not required to be exhausted.” Adams v. Holland, 330 F.3d 398, 403 (6th Cir. 2003).
Because the South Carolina Supreme Court has held that presentation of certain claims to the Court of Appeals, without more, is sufficient to exhaust state remedies, a claim is not procedurally barred from review in this court for failure to pursue review in the South Carolina Supreme Court after an adverse decision in the Court of Appeals.
b. Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the Supreme Court explains:
. . . [state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984).
3. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the state's courts in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman v. Thompson, 501 U.S. 722, 750 (1991), or by “prov[ing] that failure to consider the claims will result in a fundamental miscarriage of justice.” Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir.), cert. denied, 555 U.S. 868 (2008). A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor which hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Id. Absent a showing of “cause, ” the court is not required to consider “actual prejudice.” Turner v. Jabe, 58 F.3d 924 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error.
4. Ineffective Assistance of Counsel Claims
To prevail on his ineffective assistance of counsel claims, Petitioner must show (1) that his trial counsel's performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that but for counsel's error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). The court must apply a “strong presumption” that trial counsel's representation fell within the “wide range of reasonable professional assistance, ” and the errors must be “so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Harrington v. Richter, 562 U.S. 86, 104 (2011). This is a high standard that requires a habeas petitioner to show that counsel's errors deprived him “of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. That the outcome would “reasonably likely” have been different but for counsel's error is not dispositive of the prejudice inquiry. Rather, the court must determine whether the result of the proceeding was fundamentally unfair or unreliable. Harrington, 562 U.S. at 104; Strickland, 466 U.S. at 694.
The United States Supreme Court has cautioned that “‘[s]urmounting Strickland's high bar is never an easy task[, ]' . . . [e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult.” Harrington, 562 U.S. at 88 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). When evaluating an ineffective assistance of counsel claim, the petitioner must satisfy the highly deferential standards of 28 U.S.C. § 2254(d) and Strickland “in tandem, ” making the standard “doubly” more difficult. Harrington, 562 U.S. at 105. In such circumstances, the “question is not whether counsel's actions were reasonable, ” but whether “there is any reasonable argument that counsel satisfied Strickland's deferential standards.” Id. The unreasonableness of the state court determination must be “beyond any possibility of fairminded disagreement.” Id. at 103. “If this standard is difficult to meet, that is because it was meant to be.” Id. at 102. Section 2254(d) codifies the view that habeas corpus is a “‘guard against extreme malfunctions in the state criminal justice system,' not a substitute for ordinary error correction through appeal.” Id. at 102-103 (citing Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).
D. Analysis
1. Ground One
Petitioner's argument in Ground One is that his trial counsel was ineffective for failing to argue the application of S.C. Code Ann. § 17-25-50 in determining the definition of “two or more convictions for burglary” as found in S.C. Code Ann. § 16-11-311. [See, e.g., ECF No. 18 at 5 (“Petitioner suggests the Court should construe that the prior burglary offenses at issue here should count as one offense under § 17-25-50”)].
Petitioner's first ground for relief is procedurally defaulted. While the issue was raised to and ruled on by the PCR court, Petitioner did not raise it in his PCR appeal. Accordingly, he may not raise it in this habeas proceeding. Petitioner has not shown cause and prejudice, nor that his case presents a “fundamental miscarriage of justice.” Murray v. Carrier, 477 U.S. 478, 495-96 (1986) (explaining procedural default may be avoided in extraordinary circumstances, such as when a petitioner demonstrates actual innocence).
Petitioner's first ground for relief was also raised to the Court of Appeals on direct appeal, but the issue was not ruled on by that court where the court, indicated it had not been raised at trial.
However, even if Petitioner's Ground One were not procedurally defaulted, it is without merit. A review of the order of dismissal reveals the PCR court concluded as follows as to this issue:
Applicant alleges Trial Counsel was ineffective for failing to get his two prior convictions for burglary to be treated as one for the purpose of enhancement of his charge. Applicant testified the State enhanced his charges because he had prior convictions for burglary. He testified both of his prior burglary convictions happened on the same day so they should have been treated as one when the State tried to enhance his charges. Trial Counsel testified based on his understanding of the law, Applicant's prior convictions were elements of his current crime and because of this
the State could use them to enhance Applicant's charge. He testified in spite of this he argued against the enhancement and believed the issue was properly preserved for appellate review. This court finds Trial Counsel was not ineffective for failing to get Applicant's two prior convictions for burglary to be treated as one for the purpose of enhancement of his charge and Applicant cannot demonstrate sufficient prejudice. A review of the record shows [Trial] Counsel made a pretrial motion to have Applicant's two prior burglary convictions treated as one conviction for purposes of the State's attempts to prove the elements of first-degree burglary pursuant to S.C. Code Ann. § 16-11-311(A)(2). Applicant noted the State was seeking to use the prior burglaries as two separate offenses, which would constitute aggravating factors and would satisfy the elements of first-degree burglary. [Trial] Counsel argued that because the two burglaries were committed on the same day at houses next door to each other, and because he pled guilty to both pursuant to a single plea bargain, they should be treated as a single offense. Ultimately, the trial judge ruled that in considering legislative intent and the fact that the legislature chose not to limit the two convictions language in any particular way in the burglary statutes, he was not convinced by Applicant's argument and denied the motion. Applicant seems to argue that Trial Counsel was not prepared to argue this motion and his argument should have relied on Section 17-25-50 of the South Carolina Code and its language that, for purposes of our recidivist offender statute, two offenses which are “committed at times so closely connected in point of time” may be considered one offense “notwithstanding under the law they constitute separate and distinct offenses”. A review of Applicant's appellate records reveals the South Carolina Court of Appeals affirmed Applicant's conviction and noted that “a party may not argue one ground at trial and an alternate ground on appeal”. Here, this court finds the trial court properly interpreted “two or more convictions” using the plain and unambiguous meaning of the phrase under S.C. Code Ann. § 16-11-311(B)(2), and would have properly declined to seek out and graft language from the recidivist offender statute (S.C. Code Ann. § 17-25-50) onto that plain and unambiguous meaning. Moreover, this court finds the argument about S.C. Code Ann. § 17-25-50 would not have been successful had it been advanced by Trial Counsel. Furthermore, this court finds while ultimately unsuccessful, Trial Counsel made an appropriate motion and
diligently sought to protect Applicant's interest by arguing against the enhancement. Therefore, this Court finds Applicant has failed to prove the first prong of the Strickland test-that Trial Counsel failed to render reasonably effective assistance under prevailing professional norms. Applicant failed to present compelling evidence that Trial Counsel committed either errors or omissions in his representation of Applicant. This Court also finds Applicant has failed to prove the second prong of Strickland-that he was prejudiced by Trial Counsel's performance. This Court concludes Applicant has not met his burden of proving Trial Counsel failed to render reasonably effective assistance. The allegation is denied and dismissed with prejudice.[ECF No. 14-5 at 71-73 (citations to the record omitted)].
Here, the PCR court's application of the Strickland standard was not unreasonable. As discussed by the PCR court, trial counsel's performance did not fall below an objective standard of reasonableness where he made a pretrial motion to have Petitioner's two prior burglary convictions treated as one conviction and, although not specifically invoking S.C. Code Ann. § 17-25-50, argued the two prior burglary convictions should be treated as one because they occurred on the same day in two adjoining houses. As also stated by the PCR court, even if trial counsel had specifically invoked S.C. Code Ann. § 17-25-50, any such argument would have failed, and the court cannot find this to be an unreasonable application of the Strickland standard. See, e.g., Capers v. Cartledge, C/A No. 4:15-3267-HMH-TER, 2016 WL 11410294, at *11 (D.S.C. June 22, 2016) (“The PCR court found that counsel was not ineffective for failing to challenge the indictment based on ‘closely connected' prior two convictions for burglary under § 17-25-50 because that concept is not applicable to the substantive indictment, but to the sentencing enhancement under § 17-25-50. The PCR court found that Petitioner's two prior convictions for burglary were not used to enhance his sentence but were used as an aggravator, to make the offenses burglary in first degree as opposed to second degree under S. C. Code Ann. § 16-11-311(A)(2) and § 16-11-312(A).”), report and recommendation adopted, C/A No. 4:15-3267-HMH, 2016 WL 4232883 (D.S.C. Aug. 11, 2016).
Thus, the undersigned recommends that the Respondent's motion for summary judgment be granted as to Ground One.
2. Ground Two
In Ground Two, Petitioner argues trial counsel was ineffective for failing to object to the Solicitor's comments made during closing argument at trial, referring to Petitioner as possibly having motivations to rape during the course of the burglary. A review of the order of dismissal reveals the PCR court concluded as follows as to this issue:
Applicant alleged in his application ineffective assistance of counsel for failing to object to a prejudicial remark by the State during closing arguments. In the State's closing arguments the Solicitor stated to the jury regarding Applicant “And did he also enter that home with the intention of rape? Did he intend to do that only when he saw Ms. Wilbanks come into the room naked?” Applicant argues these remarks by the State inflamed the passions of the jury and prejudiced him in that he was denied a fair trial. This court finds Trial Counsel was not ineffective for failing to object to the State's remarks during closing arguments. “Closing argument serves to sharpen and clarify the issues for resolution by
the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries' positions.” State v. Mouzon, 321 S.C. 27, 31-32, 467 S.E.2d 122, 124-25 (Ct. App. 1995), aff'd, 326 S.C. 199, 485 S.E.2d 918 (1997) (citing Herrina v. New York, 422 U.S. 853 (1975)). “A solicitor's closing argument must be carefully tailored so as not to appeal to the personal biases of the jury.” Von Dohlen v. State, 360 S.C. 598, 609, 602 S.E.2d 738, 744 (2004). “The argument must not be calculated to arouse the jurors' passions or prejudices, and its content should stay within the record and reasonable inferences that may be drawn therefrom.” Id. at 609-10, 602 S.E.2d at 744. “Improper comments do not automatically require reversal if they are not prejudicial to the defendant, and the appellant has the burden of proving he did not receive a fair trial because of the alleged improper argument” Humphries v. State, 351 S.C. 362, 373, 570 S.E.2d 160, 166 (2002). “The relevant question is whether the solicitor's comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Id. Here, this court finds a reasonable inference could be found from the evidence presented at trial including the testimony at trial from the victim in this case. During trial, the State asked Ms. Wilbanks if she was clothed that morning and she responded she was not. Moreover, this court finds Applicant cannot demonstrate he did not receive a fair trial because of these remarks. Furthermore, Trial Counsel testified he did not object to the Solicitor's comments during closing arguments because the jury could have inferred from the testimony given at trial that the scenario offered by the Solicitor may be true. Therefore, this court finds Trial Counsel was not ineffective in not objecting to the State's remarks during closing argument. Accordingly, this allegation is denied and dismissed with prejudice.[ECF No. 14-5 at 73-75 (citations to the record omitted)].
As to Ground Two, the PCR court's application of the Strickland standard was not unreasonable, particularly here where trial counsel gave a strategic reason for not objecting, see Stokes v. State, 419 S.E.2d 778, 779 (S.C. 1992) (explaining where “counsel articulates a valid reason for employing certain strategy, such conduct will not be deemed ineffective assistance of counsel”) (citing Whitehead v. State, 417 S.E.2d 529, 531 (S.C. 1992)), and the evidence presented at trial did not indicate “the evident impropriety of the solicitor's remarks.” Brown v. State, 680 S.E.2d 909, 915 (S.C. 2009). The PCR court reasonably concluded trial counsel's decision not to object did not deny Petitioner a fair trial.
Accordingly, the undersigned recommends the district judge grant Respondent's motion for summary judgment as to Ground Two.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Respondent's motion for summary judgment [ECF No. 15], and dismiss the petition with prejudice.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).