Opinion
C/A No.: 1:19-2270-MGL-SVH
05-05-2020
Willie Bell, Jr., #254817, Petitioner, v. LeVern Cohen, Respondent.
REPORT AND RECOMMENDATION
Willie Bell, Jr. ("Petitioner") is an inmate at the Ridgeland 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 December 2, 2019. [ECF Nos. 15, 16]. Petitioner, with assistance of counsel, filed a response to the motion [ECF No. 21], to which Respondent filed a reply [ECF No. 26].
Petitioner filed his petition for writ of habeas corpus pro se and additionally filed a motion for leave to proceed in forma pauperis, which the court granted on August 13, 2019. [ECF Nos. 1, 3, 6]. However, Petitioner, with the assistance of counsel, filed a response to Respondent's motion for summary judgment. [ECF No. 21]. Following this filing, Petitioner's counsel moved to withdraw as counsel, representing to the court that Petitioner wished to proceed pro se thereafter. [ECF No. 22]. The court granted the motion to withdraw on January 23, 2020. [ECF No. 23].
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment be granted. I. Factual and Procedural Background
The evidence at trial established the following facts: Ammie Bell ("victim") was Petitioner's grandmother, whose house he lived directly behind in a trailer at the time of her death. [ECF No. 15-1 at 206:44-207:1].
The victim's real name is Anna Washington Bell, although she was referred to as "Ammie." Additionally, Petitioner referred to her as his mother, although she was his grandmother.
On the morning of March 9, 2006, Hazel Middleton, a friend of the victim's family, saw the victim's home was on fire. Id. at 179:20-180:2. He contacted the authorities, and firefighter Stephen Shuler arrived at 6:37 a.m. Id. at 192:7-15. Shuler testified at trial that the right side of the house was on fire. Id. at 192:19-23. After putting out the fire, they found the victim's body in her bedroom. Id. at 195:11-15. According to deputy coroner George Bonnette ("Bonnette"), the victim's body was face down in her bed. Id. at 237: 9-25.
An arson investigation was conducted, and T. Craig Collier ("Collier"), an agent with the South Carolina Law Enforcement Division ("SLED"), testified there was evidence of a substance having been poured onto the floor in the bedroom to start the fire. Id. at 443:3-16. He also found a trail of accelerants leading from the bedroom, through the living room, and out the front door. Id. at 446:14-24. He opined lamp oil had been used to start the fire, as he found a lamp on the bed. Id. at 445:25-446:9.
The victim's autopsy was conducted on March 10, 2006, by Drs. Janice Ross ("Ross") and Joel Sexton ("Sexton"). [ECF No. 15-2 at 421-24, 431-34, 436-37]. Ross testified the victim had been stabbed in the left of her back while alive. [ECF No. 15-1 at 478:5-22]. She further testified the victim did not have any soot in her airway, nor did she have any "carbon monoxide change," which revealed the victim died before the fire was started. Id. at 479:1-8. The victim's skull had been fractured, as well. Id. at 477:20-478:4.
Ross and Sexton signed off on each of several autopsy reports issued in this case. [See ECF No. 15-2 at 421-24, 431-34, 436-37].
Between 9:00 a.m. and 10:00 a.m. on the morning of the fire, Petitioner picked up a high school friend in the victim's car and drove him to a nearby store. Id. at 261:1-265:21. Days later, Petitioner traveled to Augusta, Georgia, where he traded the victim's vehicle to a drug dealer for an eight-ball of crack. Id. at 392:1-397:12. Petitioner was arrested on March 14, 2006, after fleeing from police officers in Orangeburg, South Carolina. Id. at 449:10-450:1.
Collier interviewed Petitioner following his arrest and asked Petitioner if he had killed his grandmother, and Petitioner responded he did not stab his mother. Id. at 455:13-16. Collier testified when confronted about his statement, Petitioner explained he heard about the victim's stabbing on television. Id. at 455:15-456:8. Collier testified the investigation had not yet revealed to the public or the press that the victim had been stabbed. Id. He testified he then called and confirmed with Ross that the victim had been stabbed. Id. Investigator Roman Rodriguez corroborated Collier's testimony that Petitioner first mentioned a stab wound. Id. at 491:1-11.
Additionally, a bag of clothing was found at the hotel where Petitioner had stayed in Augusta. Id. at 340:6-341:13. A pair of sweatpants was found in the bag and tested positive for the presence of blood on the front left leg. [ECF No. 15-2 at 4:2-10]. DNA analysis revealed the "major contributor" in the blood belonged to the victim. Id. at 20:20-23:4.
Petitioner was indicted by the Orangeburg County grand jury during the April 2006 term of court for murder (2006-GS-38-0751). Id. at 185-86. He was represented by attorneys Margaret Hinds ("Hinds") and Douglas Mellard ("Mellard") and proceeded to a jury trial on March 12, 2007, before the Honorable James C. Williams, Jr., Circuit Court Judge. [ECF No. 15-1 at 3 et seq.]. The jury found Petitioner guilty, and he was sentenced to incarceration for 50 years. [ECF No. 15-2 at 187].
Petitioner appealed his conviction to the South Carolina Court of Appeals ("Court of Appeals"). Id. at 188. On appeal, Petitioner was represented by Robert M. Dudek, Esq., of the South Carolina Commission on Indigent Defense, Division of Appellate Defense. Id. Petitioner raised the following issues to the Court of Appeals in his direct appeal:
Whether the judge erred by removing Juror Albert White on the second day of trial stating his return showed he only finished the second grade, and that the law required a six grade education "or its equivalent," noting Juror White did not respond to the "education" question during jury qualifications, since defense counsel correctly argued the correct procedure would be to first question White about his education to determine if he actually had the equivalent of a six grade education by his "life experiences", since the judge erred by removing White while also noting White may have innocently not responded to the question?Id. at 192. The State filed a responsive brief. Id. at 203. On June 15, 2009, the Court of Appeals filed an unpublished opinion affirming Petitioners conviction and sentence. Id. at 231-32. The remittitur was issued on July 1, 2009. Id. at 233.
Petitioner filed an application for post-conviction relief ("PCR") on July 29, 2009 (2009-CP-38-1261). Id. at 234-39. At PCR, Petitioner was represented by Tricia A. Blanchette, Esq. Id. at 258, 455. A PCR evidentiary hearing was held before the Honorable Maite Murphy, Circuit Court Judge ("PCR court"). Id. Petitioner, his trial counsel, Sean Fogle ("Fogle") of the Orangeburg County Coroner's Office, Dr. John David Wren ("Wren") of Carolinas Pathology Group, Pete Skidmore, and Petitioner's aunts Annie Wallen and Jannie Simmons testified at PCR. Id. at 259, 456.
On September 15, 2015, the PCR Court denied and dismissed the application in full in a 39-page order of dismissal. Id. at 455-93. Petitioner filed a Rule 59, SCRCP, motion to alter or amend the order of dismissal. [ECF No. 15-3 at 3-22]. On April 20, 2017, the PCR Court denied the motion to alter or amend by written order. Id. at 32-33.
With counsel's assistance, Petitioner filed a petition for writ of certiorari on December 18, 2017, raising the following issues in the petition:
Whether the lower court erred in failing to grant a new trial on matters related to an undisclosed pathology report contained in the Coroner's file.[ECF No.15-4 at 3]. The State filed a return on April 18, 2018. [ECF No. 15-5]. On September 21, 2018, the South Carolina Supreme Court denied certiorari. [ECF No.15-6]. The remittitur was issued on October 10, 2018, and filed on October 12, 2018. [ECF No. 15-7].
Whether the lower court erred by failing to find that Petitioner was entitled to a new trial on the basis of prosecutorial misconduct.
The lower court erred for failing to find that trial counsel rendered ineffective assistance of counsel requiring a new trial since counsel failed to utilize a forensic pathologist and obtain the pathology report in question.
Petitioner filed this federal petition for a writ of habeas corpus on August 13, 2019. [ECF No. 1 at 16]. II. Discussion
A. Federal Habeas Issues
Petitioner asserts he is entitled to a writ of habeas corpus on the following grounds: Ground One: The Petitioner's right to the due process of law, as guaranteed by the Fifth and Fourteenth Amendments, was violated by the State's failure to disclose all autopsy reports to the Petitioner.
Supporting facts: An autopsy of the victim was conducted by Dr. Janice E. Ross. She composed three different autopsy reports, two of which stated that the victim suffered from a two-centimeter deep stab wound. The third autopsy report had no such finding. This third autopsy report was not provided to the defense prior to trial, and was only discovered during post-conviction proceedings after the Petitioner obtained a copy of the Coroner's file. The prosecution's failure to disclose the third autopsy report violated Petitioner's right to due process.Ground Two: The Petitioner's right to the effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments, was violated by defense counsel's failure to obtain the third autopsy report.
Supporting facts: As stated above in Ground One, the third autopsy report was not disclosed to the defense prior to trial. Defense counsel, however, also did not request to review the Coroner's file prior to trial. Had defense counsel done so, the third autopsy report would have been discovery. Defense
counsel's failure to investigate constitutes ineffective assistance of counsel.Ground Three: The Petitioner's right to the effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments, was violated by defense counsel's failure to utilize a forensic pathologist.
Supporting facts: The case against the Petitioner was built in significant part on the State's contention that the Petitioner stabbed the victim prior to her death and then set her house on fire. Defense counsel did not utilize a forensic pathologist at trial to attack the procedures utilized by the pathologist who conducted the autopsy. Defense counsel should have done so given the prominence of the findings of the autopsy. Defense counsel's failure to do so constitutes ineffective assistance of counsel.[ECF No. 1 at 6-9].
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.
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
Respondent admits the petition is timely and not procedurally barred. [ECF No. 15 at 55]. Accordingly, the undersigned analyzes Petitioner's claims under § 2254(d) and assesses whether the state court unreasonably applied established Supreme Court precedent or based its decisions on an unreasonable determination of the facts.
1. Ground One
In Ground One, Petitioner alleges his due process rights pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and its progeny were violated by the State's failure to disclose the first of three autopsy reports that did not include any information about the stab wound to the victim.
At Petitioner's PCR hearing, Petitioner called a representative of the Orangeburg County Coroner's Office, Fogle, who testified there was another autopsy report contained in the coroner's file. [ECF No. 15-2 at 263:24-264:17]. This autopsy report was the first autopsy report and was found in the coroner's file by PCR counsel and had not been forward to the prosecution. See id. at 473 ("This Court notes that the parties agreed to stipulate that the solicitor had no knowledge of and was not in possession of the pathology report at issue.").
The first autopsy report does not contain any language about an injury to the victim's left chest wall and concludes "the cause and manner of death is pending police investigation." Id. at 421-24. This report is initialed on each page by Ross and Sexton, as well as signed by both at the end of the report, and bears the date March 13, 2006, on the last page. Id. The second autopsy report is identical to the first, but includes the following sentence under the description of the lungs: "[i]n the posterior left chest wall there is a 2 cm defect with slight hemorrhage around it in the soft tissue," also concluding "the cause and manner of death is pending police investigation." Id. at 431-34. Finally, the amended autopsy report, or the third autopsy report, does not include the details of the previous reports, but adds the following information:
There is a defect of the left chest cavity consistent with a stab wound without injury to the underlying organ . . . . the cause of death is trauma of undetermined origin (in a body with postmortem charring). The manner of death is homicide. It is to be noted that the case of the house-fire is determined to be arson.Id. at 437. This report includes the original date, March 13, 2006, but also notes amendment occurred on April 14, 2006. Id.
Hinds testified at the PCR hearing she did not have the first autopsy report prior to trial, and they would have wanted the report to properly prepare for trial. [ECF No. 15-2 at 307: 21-24]. She further testified they "probably would have" cross-examined Ross about the existence of the autopsy report had the defense known of its existence. Id. at 308:21. Finally, she testified "it never would have occurred to any attorney that I know of to—to go ahead and actually have to subpoena the coroner's file to think that there would be something else in there." Id. at 327:8-11. Mellard also testified the first report would have aided the defense. Id. at 414:4-6.
The PCR court found as follows:
The parties have stipulated that the solicitor did not possess or have knowledge of the report at issue. The Court finds the stipulation dispositive of the allegation. Therefore, Applicant concedes the report was not suppressed by the prosecution. Additionally, Applicant failed to show that the report was material to his guilt. The pathologists issued an amended autopsy report that concludes the cause of death was a homicide as both initial autopsy reports indicated that the pathologist's determinations were pending the investigation. This Court finds this allegation must be denied and dismissed with prejudice. Applicant failed to meet his burden in proving prosecutorial misconduct or that a Brady violation occurred.[ECF No. 15-2 at 474].
In Brady, the Supreme Court held "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment." 373 U.S. at 87. Reversal for a Brady violation is required "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 514 U.S. 419, 433-34 (1995). The question is not whether the defendant would more likely than not have received a different verdict with the concealed evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. United States v. Bagley, 473 U.S. 667, 678 (1985).
Here, the parties agree a prosecutor has a duty under Brady to learn of and disclose evidence favorable to the accused even where the evidence is in the possession of law enforcement and not the prosecutor. See, e.g., Kyles, 514 U.S. at 437 ("[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police"); Boone v. Paderick, 541 F.2d 447 (4th Cir. 1976) (holding the government's duty to disclose applies whether the information is in the hands of the prosecutor or the police); see also Moldowan v. City of Warren, 578 F.3d 351, 378 (6th Cir. 2009) ("Because prosecutors rely so heavily on the police and other law enforcement authorities, the obligations imposed under Brady would be largely ineffective if those other members of the prosecution team had no responsibility to inform the prosecutor about evidence that undermined the state's preferred theory of the crime.").
However, the parties disagree as to whether this obligation extends to evidence in possession of a coroner's office. Petitioner argues that the coroner's office in general, or Ross specifically, were under an obligation to notify the prosecution of the existence of the first report where they were members of the investigative team prosecuting Petitioner, where Ross testified against Petitioner at trial, and where Ross was contacted by Collier with information that Petitioner had stated he did not stab the victim. [ECF No. 21 at 10].
Petitioner provides no specific case law in support of his position, much less clearly-established Supreme Court authority, that a prosecutor's duty under Brady extends to a pathologist's initial report under the facts of this case. See, e.g., Junta v. Thompson, 615 F.3d 67, 74 (1st Cir. 2010) ("[W]e note that there is a dispute as to whether the Brady obligation extends to prosecution experts, such as a medical examiner."); see also Anderson v. State of S.C., 709 F.2d 887, 888 (4th Cir. 1983) (affirming grant of writ of habeas corpus where the State presented testimony that it knew was contradicted in part by an autopsy report requested by defense counsel the State had intentionally suppressed).
In Moldowan, the "court extended [a] Brady-derivative obligation to include a state-retained forensics consultant who intentionally fabricated evidence and simultaneously withheld patently exculpatory evidence from the county prosecutor . . . . The cases following Moldowan have confined this derivative Brady obligation to police officers or state-retained experts who fabricate evidence." D'Ambrosio v. Marino, No. 1:11 CV 933, 2012 WL 4504523, at *5 (N.D. Ohio Oct. 1, 2012) (collecting cases).
However, even if such an obligation existed, Petitioner has failed to show the first autopsy report is material under Brady. Petitioner fails to present any credible evidence that counsel's possession of the first report, and possible ensuing cross examination of Ross, would have likely changed any aspect of the case or in any way have undermined the verdict issued.
Petitioner argues this case turned on Ross's reliability and believability, and her testimony cemented the State's theory of the case. [ECF No. 21 at 11]. Petitioner argues if the jury had been able to hear about the discrepancies among the three autopsy reports, specifically that the first did not reference the stab wound, "there is a reasonable likelihood that the jury would have significantly discounted Dr. Ross's testimony." Id.
First, and as noted by the PCR court, because "Applicant failed to present any evidence to corroborate the report at issue[,] [i]t leaves the Court to speculate as to the nature and circumstances of the report." [ECF No. 15-2 at 476]. Petitioner provides nothing more than conjecture that the jury would have discounted Ross's testimony because the first autopsy report, of unclear provenance, omitted reference to the stab wound. As argued by Respondent, the report "may very well have been a draft that the pathologists included in their production to the coroner's office, but not to law enforcement or the Solicitor." [ECF No. 15 at 69]. Additionally, the inconsistencies among the three reports are limited, where Ross, as noted by the PCR court, "issued an amended autopsy report that concludes the cause of death was a homicide and both initial autopsy reports indicated that the Ross' determinations were pending the investigation." [ECF No. 15-2 at 474].
At the PCR hearing, Petitioner did not call Ross or Sexton to testify and explain how the first autopsy report came into being or why it was only forwarded to the coroner's office and not to anyone else investigating the case.
Second, defense counsel at trial repeatedly called into question the State's theory of the case, even without the first autopsy report, by pointing out in opening statement, through cross-examination of Ross and Bonnette, and in closing argument, that the State did not know exactly how or when the victim died. [See, e.g., ECF No. 15-1 at 172:12-24 ("They can't tell you when she died, they can't tell you how she died, and they can't tell you why she died.")].
In opening, Hinds stated
This was not labeled a homicide until the pathologist did an amended report a while later. And in that amended report, which did say at that point, homicide. You're going to hear testimony that the reason for that change was because of the arson investigation. In other words, once it was determined that the fire was probably set, it was the pathologist's opinion, that therefore, it was a homicide. So, in other words, if there had been no arson there would be no murder. That's kind of like the tail wagging the dog. The pathologist is going to testify to you that Ms. Bell died of undetermined trauma, undetermined trauma. It's a fancy way of saying they don't know how she died. Certainly, they don't know why.Id. at 173:9-22.
Mellard also highlighted the inconsistencies during his cross examination of Ross and Bonnette. As testified by Ross at trial, in her opinion, the victim's manner of death was homicide and the result of blunt force trauma of undetermined origin. Id. at 479:1-11, 481:16-482:6 (testifying the manner of death was homicide "based on the evidence of injury before death . . . the stab wound, based on the fact that she was dead before the fire, based on the fact that the fire was arson related, and based on the fact that there was not natural diseases going on that would kill her."). Ross also testified, however, that she only examined the victim's body one time and the autopsy report was amended without an additional examination of the body. Id. at 485:11-13, 487:10-12. Mellard further elicited testimony from Ross that her "conclusion was based in part on the fact that the police had decided that arson was involved." Id. at 487:17-20.
Bonnette additionally noted the victim suffered from blunt force trauma to the head, as part of the victim's skull was missing when he viewed the body at the scene, the trauma was likely not caused by the fire, and that time of death was only an estimate. Id. at 251:16-252:17, 256:1-12, 258:13-257:7. Mellard confirmed with Bonnette that although he found the victim suffered from blunt force trauma to the head, the pathologist report does not mention blunt force trauma and that Bonnette, unlike the pathologist, is not an expert. Id. at 259:12-23.
Hinds argued these inconsistencies in closing as well, stating:
When pressed, the pathologist did say, could have been blunt force trauma, but she didn't say it was, she said it could have been. As a matter of fact, there was, there's been speculation, there was one puncture wound, was she stabbed to death? Nobody knows. Was she hit - the coroner seems to think she was hit over the head. Everybody's got a theory, nobody can tell you for sure. You heard the pathologist testify that the reason that the amended report was changed from "pending investigation" to the homicide label was because of the determination that the fire was an arson related fire. That was the only reasons, ladies and gentleman. They didn't - she didn't re-examine the body, they didn't do another physical examination, it was strictly because of the arson determination. All she can do is guess. Even an educated guess is just a guess. According to the pathologist, if there had not been an arson determination there would have been no murder, which is interesting. As we're in this courtroom today, Willie Bell is being tried for murder, he is not being tried for arson. At the end of her testimony she states that there was no mistake on the March tenth report, it was a trauma of undetermined origin, she didn't know.[ECF No. 15-2 at 97:10-98:8].
Petitioner further argues Ross's testimony was "critical to the State's claim that the Petitioner gave a confession when he told the authorities that he did not stab the victim" in that the statement "is far less inculpatory when there is an autopsy report that doesn't even mention" a stab wound. [ECF No. 21 at 11]. However, Petitioner's statement in response to being questioned about the death of his grandmother, that he did not stab the victim, is not significantly-less inculpatory by the presence of the first autopsy report. Here, it appears Petitioner does not dispute a stab wound existed, only that the first autopsy report did not record it. Additionally, Petitioner does not dispute that he did not hear about the victim's stabbing on television, although he stated otherwise to police officers at the time. As a result, even if counsel had been in possession of the first report that fails to mention the stab wound, there is no reasonable probability the result of the proceeding would have been different.
Respondent additionally argues the Fourth Circuit and the South Carolina Supreme Court have recognized if the evidence was available to counsel through other means, there is no Brady violation. [ECF No. 15 at 68]. Indeed, "where the exculpatory information is not only available to the defendant but also lies in a source where a reasonable defendant would have looked, a defendant is not entitled to the benefit of the Brady doctrine." United States v. Wilson, 901 F.2d 378, 381 (4th Cir.1990). However, here, as testified by Ross and credited by the PCR court, "it never would have occurred to any attorney that I know of to—to go ahead and actually have to subpoena the coroner's file to think that there would be something else in there." [ECF No. 15-2 at 327:8-11, 474].
Petitioner has failed to show the state court's ruling in denying his Brady claim 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. The undersigned cannot conclude the PCR court's decision "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 "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). Therefore, the undersigned recommends Ground One be dismissed.
2. Ground Two
Petitioner argues, "[f]or largely the same reasons" as above, his defense counsel were ineffective for failing to obtain the first autopsy report. [ECF No. 21 at 12]. Petitioner argues "defense counsel knew there were at least two different autopsy reports reflecting different findings" and "[t]his knowledge should have triggered defense counsel's obligation to conduct a further investigation into the autopsy records." Id.
The PCR court found defense counsel was not ineffective for failing to investigate the coroner's file, stating:
Counsel Hinds's credible testimony on the matter is persuasive in that she did not believe it would have occurred to any attorney to subpoena the coroner's entire file. This Court agrees. This Court finds it is within the prevailing professional norms for defense counsel to receive the autopsy reports with no photographs, no supporting materials, and none of the pathologists' work product, as Counsel Hinds testified.[ECF No. 15-2 at 474]. The PCR court further concluded "[a]n attempt by Mellard to question Ross regarding the report at issue would be cumulative to the many inconsistencies presented" and the introduction of the first autopsy report "would not have changed the result of the trial." Id. at 476.
Petitioner has failed to overcome "doubly" more difficult standard of 28 U.S.C. § 2254(d) and Strickland. Harrington, 562 U.S. at 105. First, Petitioner does not address whether defense counsel acted within the professional norms by failing to subpoena the entire coroner's file. Here, although Petitioner argues otherwise, counsel did not know there were two autopsy reports reflecting different findings. Instead, counsel knew of an autopsy report and an amended autopsy report, the second and third autopsy reports, and utilized both during investigation and trial, and this court defers to the PCR court's credibility determination concerning Hinds.
Second, Petitioner fails to carry his burden showing counsel's allegedly deficient performance prejudiced him. As discussed above, one of defense counsel's main strategies at trial was to question Ross's findings in the second and third autopsy reports, and this was effectively accomplished throughout the trial, in opening, on cross examination, and in closing arguments. Additionally, the PCR court's determination that an attempt by Mellard to question Ross regarding the disputed report at issue would have been cumulative to the numerous inconsistencies presented by counsel is supported by the record. See Edwards v. State, 710 S.E.2d 60, 66 (S.C. 2011) ("We previously have held where evidence produced during PCR proceedings is cumulative to or does not otherwise aid evidence introduced at trial, no prejudice results from counsel's failure to bring it forward.").
Petitioner has not shown counsel were ineffective for failing to obtain the first autopsy report, and, accordingly, the undersigned recommends Ground Two be dismissed.
3. Ground Three
Petitioner argues defense counsel was ineffective for failing to utilize a forensic pathologist in investigating the case and at trial. During the PCR hearing and in support of this allegation, Petitioner called Wren, a forensic pathologist. As highlighted by Petitioner [ECF No. 21 at 12-13], Wren testified as to multiple shortcomings regarding the three pathologist autopsy reports at issue in this case. [See ECF No. 15-2 at 269-303]. Wren testified the presence of food in the victim's stomach was not consistent with the victim being killed and then a fire being set shortly thereafter at approximately 6:00 a.m. Id. at 285:3-18. Additionally, Wren testified as follows regarding the stab wound:
And then the other thing that I found a problem with was the fact that if the stab wound actually, or the defect rather, actually penetrated the posterior chest wall, there should have been at least some blood in the pleural cavity or some fluid or some coagulated blood, and the cavities are mentioned as completely free of any fluids. Secondly, if the one says the defect is only superficial, without a picture of that, the back is so charred and burned and partially exposed all the way to the bone, I don't - I just - I can't agree with a defect or a stab wound without seeing any other verification.Id. at 286:8-18. Hinds testified they did not use a forensic pathologist in their preparation for trial, but they would have done so had they possessed the first autopsy report. Id. at 309:1-24.
Petitioner additionally highlights that Wren testified, as to between the first and second autopsy reports, "there is a glaring discrepancy between both of them that are dated the same transcription date and have different reports there." [ECF No. 15-2 at 287:21-23]. However, Petitioner does not indicate, nor can the court discern, the significance of this testimony to the instant analysis, where, as stated above, the court can only speculate as to the relationship between the first and second autopsy reports.
The PCR court denied relief on this claim, concluding "Counsel was not deficient in any regard as trial counsel thoroughly challenged the cause of death conclusions made by the State's witnesses." Id. at 477. The PCR court further concluded as follows:
Applicant has also failed to show prejudice as Dr. Wren was unable to conclude that the pathologists' findings were not correct . . . . . Dr. Wren testified that although he took issue with the procedure and practices of the pathologists, he was unable to conclude how the victim died and concluded that it could have been from trauma. Dr. Wren's criticism of the autopsy reports was primarily based on his issues he had with his perception of the
procedures used in coming to the conclusion that the victim died as a result of trauma of undetermined origin. Dr. Wren's testimony was inconclusive as he was unable to make a determination of the cause of death. It provided the Court with nothing more than theoretical possibilities that included what the examining pathologists determined to be the cause of death. This Court finds Applicant has failed to prove any prejudice in not presenting an expert witness in forensic pathology as Applicant failed to present any testimony from Dr. Wren that would likely have changed the result of the trial. Applicant has also failed to prove prejudice as there exists of overwhelming evidence of guilt.Id. at 477-78.
First, as noted by the PCR court, counsel's failure to procure an expert witness does not render their representation deficient when counsel "vigorously cross-examined the State's witnesses and attacks the accuracy of the evidence," as was done here. Lorenzen v. State, 657 S.E.2d 771, 777 (S.C. 2008); Frasier v. State, 410 S.E.2d 572, 573 (S.C. 1991). Additionally, Petitioner has failed to show prejudice, as Wren was unable to conclude the State's pathologists' findings were not correct. See Harrington, 562 U.S. at 112. ("It was also reasonable to find Richter had not established prejudice given that he offered no evidence directly challenging other conclusions reached by the prosecution's experts . . . .").
Petitioner argues a forensic pathologist would have been "extremely beneficial to the defense," in that Wren's testimony, that the presence of food in the victim's stomach was not consistent with the victim being killed and then a fire being set shortly thereafter, was inconsistent with what "the prosecutor intimated that the Petitioner killed the victim and then burned the house down immediately thereafter." [ECF No. 21 at 14]. Petitioner also argues Wren testified the stab wound was not inflicted when the victim was living and therefore this testimony "would have undermined the prosecution's claim that the victim was stabbed in the back and then killed by the Petitioner." Id. However, even assuming Petitioner accurately characterizes both the prosecutor's statements and Wren's testimony, as discussed above, defense counsel repeatedly highlighted to the jury, through opening, cross examinations, and closing, that the State could not prove when or how the victim died.
In closing, the prosecutor stated "after he killed his grandmother, after he put her face down in that bed and burned her body, burned her house down. . . ." [ECF No. 15-2 at 124:22-24].
In closing, the prosecutor stated that the victim, "pre-mortem, she was stabbed in the back. She has a pre-mortem stab wound to her back." [ECF No 15-2 at 114:25-115:2].
Petitioner has not shown counsel were ineffective for failing to obtain a forensic pathologist, and, accordingly, the undersigned recommends Ground Three be dismissed. III. Conclusion and Recommendation
The PCR court additionally held it was unable to grant relief to Petitioner due to overwhelming evidence of guilt. [See, e.g., ECF No. 15-2 at 478]. Respondent argues at length that "[e]xamining all of the evidence presented, it is overwhelming and precluded a grant of relief by the PCR." [See, e.g., ECF No. 26 at 10]. Petitioner does not address this argument. [See ECF No. 21]. Given the recommendation above, it is unnecessary to address this issue.
For the foregoing reasons, the undersigned recommends that Respondent's motion for summary judgment [ECF No. 16] be granted and the petition be dismissed with prejudice.
IT IS SO RECOMMENDED. May 5, 2020
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
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).