Bryant v. Stirling

Full title: STEPHEN COREY BRYANT, Petitioner, v. BRYAN P. STIRLING, Commissioner…

Court: United States District Court, D. South Carolina

Date published: Apr 19, 2022

9:16-CV-1423-DCN-MHC (D.S.C. Apr. 19, 2022)

Opinion

9:16-CV-1423-DCN-MHC

04-19-2022

STEPHEN COREY BRYANT, Petitioner, v. BRYAN P. STIRLING, Commissioner, South Carolina Department of Corrections; LYDELL CHESTNUT, Deputy Warden, Broad River Correctional Institution Secure Facility, Respondents.

Molly H. Cherry, United States Magistrate Judge.

REPORT AND RECOMMENDATION

Molly H. Cherry, United States Magistrate Judge.

Stephen Corey Bryant (“Petitioner”), a state prisoner sentenced to death, seeks a writ of habeas corpus under 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 Respondents' Return and Motion for Summary Judgment. ECF Nos. 90, 91. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondents' Motion for Summary Judgment, ECF No. 91, be granted, and the Petition, ECF No. 37, be dismissed.

I. BACKGROUND

The South Carolina Supreme Court briefly summarized the facts of Petitioner's crimes as follows:

Appellant began a crime spree with a first degree burglary on October 5, 2004. By the time the spree ended eight days later, appellant had committed three murders, assault and battery with intent to kill (ABIK), two more burglaries, and arson. While incarcerated awaiting trial, appellant threatened a correctional officer and subsequently attacked and seriously injured another.

Appellant “cased” isolated rural homes looking for vulnerable victims. He would appear midday at homes, claiming to be looking for someone or having car trouble. Appellant burglarized [Robert] Dennis's home office a day after visiting Dennis's home. He next broke into [James] Ammons' home while no one was there, cutting the phone wires and stealing a pistol and ammunition. Later that day he shot victim [Clinton] Brown, who was fishing along the Wateree River, in the back.

On October 9, appellant killed an acquaintance (victim [Cliff] Gainey), leaving his body on a rural road, then stole electronics and an aquarium from Mr. Gainey's trailer before setting it on fire. Two days later, appellant went to victim [Willard] Tietjen's home, shot him nine times, and looted the house. Appellant answered several calls made to Mr. Tietjen's cell phone by Mr. Tietjen's wife and daughter, telling both of them that he was the “prowler” and that Mr. Tietjen was dead. He burned Mr. Tietjen's face and eyes with a cigarette. Appellant left two notes on paper and scrawled a message on the wall: “victim number four in two weeks, catch me if you can.” On another wall the word “catch” and some letters were written in blood.

Two days later appellant met victim [Christopher] Burgess at a convenience store around 4:30 a.m. They left together, and less than two hours later, a hunter found Mr. Burgess dead from gunshot wounds on a road bed in a rural area.

State v. Bryant, 704 S.E.2d 344, 344-45 (S.C. 2011).

Grand juries in both Richland and Sumter counties indicted Petitioner for a number of crimes stemming from the above-described spree. See ECF No. 16-12 at 162-89. When Petitioner was initially charged, Jack D. Howle, Jr., was appointed as counsel. See ECF No. 16-6 at 37. Thereafter, the State served notice that it was seeking the death penalty for the murder of Tietjen, and in May 2007, James H. Babb was appointed as additional counsel. See ECF No. 16-5 at 110. In July 2008, because of health issues, Babb was replaced on the defense team with John D. Clark. ECF No. 16-6 at 39-40.

A. Guilty Pleas and Sentencing

On August 18, 2008, Petitioner pled guilty before the Honorable Thomas A. Russo, Circuit Court Judge, to three counts of murder, two counts of first degree burglary, one count of second degree burglary, two counts of assault and battery with intent to kill (“ABWIK”), one count of second degree arson, armed robbery, possession of a stolen handgun, and threatening the life of a public employee. ECF No. 16-6 at 60-107.

The capital sentencing phase took place on September 2-5, 8, 9, 2008. See ECF No. 16-1 at 14-17. On September 11, 2008, Judge Russo sentenced Petitioner to 30 days' imprisonment for threatening the life of a public employee, to 5 years' imprisonment for possession of a stolen handgun, to 15 years' imprisonment for second degree burglary, to 20 years' imprisonment for each of the ABWIK convictions, to 25 years' imprisonment for arson, to 30 years' imprisonment for armed robbery, to separate sentences of life imprisonment without parole for the murders of Gainey and Burgess and for each count of first-degree burglary. ECF No. 16-5 at 59-61. Judge Russo found beyond a reasonable doubt the aggravating circumstance that Petitioner had committed murder while committing a robbery and while armed with a deadly weapon and sentenced Petitioner to death for the murder of Tietjen. ECF No. 16-5 at 61-63.

B. Direct Appeal

Petitioner appealed to the South Carolina Supreme Court. ECF No. 16-6 at 119-34. Petitioner was represented by Joseph L. Savitz, III, who raised the following issue in the appeal:

The sentencing judge committed reversible error by excluding testimony that Bryant's aunt had been sexually abused by her father (Bryant's paternal grandfather), who the defense alleged also began abusing Bryant at the age of seven, as this evidence was both relevant under Rules 401 and 404, SCRE, and mitigating under the Eighth and Fourteenth Amendments to the United States Constitution.

ECF No. 16-6 at 122. On January 7, 2011, the South Carolina Supreme Court affirmed Petitioner's convictions and sentences and denied his petition for rehearing. ECF No. 16-6 at 178-83, 187-89.

C. First Post-Conviction Relief Action

Petitioner then sought post-conviction relief (“PCR”). Represented by Melissa J. Armstrong and Heath P. Taylor (“PCR counsel”), Petitioner alleged multiple grounds of ineffective assistance of counsel and due process violations. ECF No. 16-7 at 145-49. A PCR evidentiary hearing was held before the Honorable R. Ferrell Cothran, Jr., Circuit Court Judge, on October 1-3, 2012. See ECF No. 16-7 at 151-52. In an order dated December 4, 2012, Judge Cothran denied and dismissed Petitioner's PCR application. ECF No. 16-12 at 84-137. Petitioner filed a motion to alter or amend, which was denied by order dated February 14, 2013. ECF No. 16-12 at 138-58.

D. PCR Appeal

Petitioner, represented by Susan. B. Hackett and Miles E. Coleman, filed a timely petition for a writ of certiorari. ECF No. 16-34. On March 4, 2015, the Supreme Court of South Carolina denied the petition for writ of certiorari. ECF No. 16-39. The court also denied Petitioner's subsequent petition for rehearing. ECF Nos. 16-41, 16-42.

E. Federal Habeas Corpus Action

Petitioner then commenced this action on June 19, 2015. ECF No. 1. On April 28, 2016, Petitioner filed an amended petition¹ and a motion to stay his federal habeas action pending the exhaustion of his state court remedies. ECF Nos. 37, 38. The Court granted Petitioner's motion to stay on July 26, 2016. ECF No. 52.

1 Petitioner had earlier filed a placeholder petition in January 2016. See ECF No. 30.

F. Second and Third PCR Actions

On May 3, 2016, Petitioner filed two PCR applications in state court. In one application, Petitioner asserted that his “sentence of death violate[d] the Eighth Amendment of the United State's Constitution because he suffers from Intellectual Disabilities.” ECF No. 89-38 at 28. In the other application, he asserted multiple grounds of ineffective assistance of counsel. ECF No. 89-2 at 4-5.

The Honorable W. Thomas Cooper, Circuit Court Judge, initially presided over both PCR actions. ECF No. 89-37 at 108. Judge Cooper allowed the Atkins-claim action but dismissed the action in which Petitioner had alleged claims related to trial, appellate, and PCR counsel. ECF Nos. 89-6, 89-8; ECF No. 89-37 at 110-16. Although Petitioner appealed the dismissal, his appeal was dismissed by the Supreme Court of South Carolina on February 9, 2017. See ECF No. 89-15.

The Honorable William H. Seals, Jr., Circuit Court Judge, was assigned to preside over the surviving action. ECF No. 89-37 at 117-18. Judge Seals conducted an evidentiary hearing on October 1, 2018, and issued an order denying the application and dismissing the action on January 3, 2019. ECF No. 89-37 at 146-59; ECF No. 89-38 at 1-24; ECF No. 89-40 at 160. Petitioner filed a petition for rehearing, which was denied in an order dated March 5, 2019. ECF No. 89-38 at 2526.

Both Petitioner and the State filed appeals. The Supreme Court of South Carolina denied both petitions, as well as Petitioner's subsequent petition for rehearing. ECF Nos. 89-51, 89-52, 89-54.

G. Stay Lifted in Federal Habeas Corpus Action

Shortly thereafter, the stay was lifted in this action. The parties have now fully briefed Petitioner's federal habeas corpus claims, and this matter is ripe for review.

II. STANDARD OF REVIEW

A. Section 2254

This court has jurisdiction under 28 U.S.C. § 2254 to hear a petition for a writ of habeas corpus made by a person imprisoned pursuant to a state court proceeding. The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides relief to a person in custody pursuant to the judgment of a state court if the custody is “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). AEDPA imposes a one-year statute of limitations period that begins to run on the date a petitioner's conviction becomes final. 28 U.S.C. § 2244(d)(1); Harris v. Hutchinson, 209 F.3d 325, 327 (4th Cir. 2000).

Under South Carolina law, in a federal petition for habeas relief, a petitioner may present only those issues that were presented to the highest South Carolina court through direct appeal or through an appeal from the denial of a PCR application, regardless of whether the court actually reached the merits of the claim. See S.C. App. Ct. R. 203; S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976).

Federal habeas corpus relief may not be granted on any claim that was adjudicated on the merits in the state court unless the state court determination:

(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 fact in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d)(1), (2). A state court's decision is contrary to clearly established federal law “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides differently than th[e] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). Moreover, a state court's decision involves an unreasonable application of clearly established federal law when the state court “identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to facts of [a particular] case.” Id.

Under AEDPA, a federal court affords deference to a state court's resolution of a state prisoner's habeas claims. See Bell v. Cone, 543 U.S. 447, 455 (2005). To obtain a writ of habeas corpus 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 v. Richter, 562 U.S. 86, 103 (2011). “[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102.

1. Exhaustion

Further, absent cause and prejudice, or a fundamental miscarriage of justice, “a federal habeas court may not review unexhausted claims that would be treated as procedurally barred by state courts.” Longworth v. Ozmint, 377 F.3d 437, 447-48 (4th Cir. 2004). The statute requires a petitioner to exhaust available remedies in state court before the federal court may consider a claim. 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). The petitioner 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” and “fairly present[] to the state court both the operative facts and the controlling legal principles associated with each claim.” Longworth, 377 F.3d at 448. In other words, “[t]he exhaustion doctrine bars a claim if it is raised for the first time in a federal habeas petition.” Mickens v. Taylor, 240 F.3d 348, 356 (4th Cir. 2001) (en banc).

2. Procedural Bar

Federal habeas courts will not hear claims that are procedurally defaulted by the failure of the petitioner to present the claim in the highest state court with jurisdiction to hear the claim and the claim is not procedurally barred in that court. Coleman v. Thompson, 501 U.S. 722, 749-50 (1991). Claims may also be procedurally defaulted if a state court declined to consider the merits of the claim on the basis of independent and adequate state procedural rules. Yeatts v. Angelone, 166 F.3d 255, 260 (4th Cir. 1999). A state law is independent if it does not depend upon a federal constitutional ruling. Ake v. Oklahoma, 470 U.S. 68, 75 (1985). For a state law ground to be adequate, it must be applied regularly or consistently. Johnson v. Mississippi, 486 U.S. 578, 587 (1998); Brown v. Lee, 319 F.3d 162, 169 (4th Cir. 2003). Procedural default is an affirmative defense in habeas cases and the burden rests with the state. Jones v. Sussex I State Prison, 591 F.3d 707, 716 (4th Cir. 2010); Yeatts, 166 F.3d at 261. Procedural default may be excused where the petitioner can show “cause” and “actual prejudice” or that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Schulp v. Delo, 513 U.S. 298, 314 (1995); Bostic v. Stevenson, 589 F.3d 160, 164 (4th Cir. 2009). A “fundamental miscarriage of justice” is generally considered to occur when “a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477 U.S. 478, 495 (1986).

B. Summary Judgment

Summary judgment shall be granted “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). Where a party “fails to make a showing sufficient to establish the existence of an element essential to his case,” Rule 56(a) mandates entry of summary judgment against that party. Celotex v. Catrett, 477 U.S. 317, 322 (1986). In deciding whether there is a genuine issue of material fact, the evidence is viewed in the light most favorable to the nonmoving party with all justifiable inferences drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

C. Ineffective Assistance of Counsel Standard

Because the majority of Petitioner's claims concern some allegation of ineffective assistance of counsel, it is helpful to have the standard this court must follow in considering such claims at the outset.

The Sixth Amendment provides not only the right to counsel, but the right to the effective assistance of competent counsel. Hoffman v. Leeke, 903 F.2d 280, 285 (4th Cir. 1990) (citing Powell v. Alabama, 287 U.S. 45, 48 (1932)). Ineffective assistance of counsel claims are governed by standards established in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on an ineffective assistance claim, a petitioner must show (1) his attorney's performance fell below an objective standard of reasonableness and (2) he suffered prejudice. Id. at 688, 694.

A determination need not be made concerning the attorney's performance if it is clear that no prejudice resulted. See id. at 697. To prove prejudice, a petitioner must demonstrate “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A petitioner must show that the “acts and omissions” of counsel were, in light of all the circumstances, “outside the range of professionally competent assistance.” Id. at 690. Such a determination “must be highly deferential,” with a “strong presumption that counsel's conduct falls within the wide range of professional assistance.” Id. at 689. A petitioner must also overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id. at 689.

In the context of a 28 U.S.C. § 2254 proceeding, it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. Bell v. Cone, 535 U.S. 685, 699 (2002). A petitioner must show that the state court applied Strickland to the facts of the case in an objectively unreasonable manner. Id.

III. DISCUSSION

In his petition,² Petitioner raises the following grounds for relief:

2 The court will refer to the first amended petition as the petition herein.

Ground One: S.C. Code Ann. § 16-3-20, which requires judicial sentencing for defendants who plead guilty to murder, violates the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Ground Two: Ineffective assistance of counsel in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, when Bryant's trial counsel failed to provide accurate advice to Bryant insofar as the likelihood of his possible sentence if tried by jury versus pleading guilty and receiving a judge sentencing.

Ground Three: Denial of due process, effective assistance of counsel and violation of prohibition against cruel and unusual punishment in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution due to trial counsel's refusal to allow Bryant to present after-discovered witness testimony relevant to his mental health and mitigation, while allowing the State to present additional evidence in aggravation of punishment after the State has rested its case in aggravation.

Ground Four: Ineffective assistance of counsel in violation of Sixth, Eighth and Fourteenth Amendments to the United States Constitution when Bryant's trial counsel failed to proffer or otherwise preserve the issue of the trial court's denial of Bryant's request to provide testimony from Edward Goss/Gause, a potential mitigation witness and appellate counsel failed to raise the issue on appeal.

Ground Five: Denial of due process of law and right to a fair trial due to State's failure to comply with the requirements of Brady v. Maryland, because law enforcement was aware of Edward Goss/Gause but failed to notify defense counsel.

Ground Six: Denial of due process of law under Brady v. Maryland and right to a fair trial due to the State's nondisclosure of evidence relevant to mitigation, especially those concerning the Tietjen homicide and computer analysis.

Ground Seven: Bryant is intellectually disabled so his execution is barred by Atkins v. Virginia and Bryant's Sixth Amendment right to the effective assistance of counsel was violated by trial counsel's inadequate investigation.

Ground Eight: Trial counsel was ineffective for failing to conduct an adequate investigation into Bryant's background, history, character, and mental illness; failing to provide the available information to the mental health experts in order to ensure an accurate and reliable mental health evaluation; and failing to adequately present all the available mitigating evidence in sentencing.

Ground Nine: Bryant was denied the right to effective assistance of counsel-guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution-because his trial counsel (and post-conviction counsel) had a conflict of interest.

See ECF No. 37 at 23-82.

A. Ground One

In Ground One, Petitioner asserts that S.C. Code Ann. § 16-3-20, which requires judicial sentencing for defendants who plead guilty in capital cases, violates the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. ECF No. 37 at 23-25. Respondents counter that this ground has been defaulted and, alternatively, lacks merit. ECF No. 90 at 36-49.

The statute at issue governs how capital cases are to be conducted in South Carolina. As relevant here, SC Code Ann. § 16-3-20(B) requires that, in capital cases, “[i]f trial by jury has been waived by the defendant and the State, or if the defendant pleaded guilty, the sentencing proceeding must be conducted before the judge.” Thus, capital defendants who elect to plead guilty in South Carolina cannot have their sentence decided by a jury.

Petitioner asserts that mandatory judge sentencing violates the constitution because the United States Supreme Court has determined that “[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” Hurst v. Florida, 577 U.S. 92, 94 (2016).³ Accordingly, Petitioner argues S.C. Code Ann. § 16-3-20 is unconstitutional to the extent it requires judicial sentencing for capital defendants who plead guilty.

3 Hurst derives from cases decided prior to the Petitioner's, including Apprendi v. New Jersey, 530 U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584 (2002), and their progeny.

1. How This Issue Was Raised in State Court

In February 2008, Petitioner filed a motion with the trial court seeking “to enter a plea of guilty and to have a jury of his peers determine the ultimate sentence to be imposed.” See ECF No. 16-21 at 34. After his motion was denied, Petitioner filed a petition for writ of certiorari in the South Carolina Supreme Court asking the court to exercise its original jurisdiction and consider whether mandatory judicial sentencing for a capital defendant who pled guilty violated that defendant's rights under the Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. ECF No. 16-21 at 2-20. On May 30, 2008, the South Carolina Supreme Court summarily denied the petition. ECF No. 16-26.

During the Petitioner's plea colloquy, the trial court discussed with Petitioner his right to a jury trial, including the right to be sentenced by a jury. ECF No. 16-6 at 67-71. Petitioner affirmed that he understood that by pleading guilty, he was waiving the right to be sentenced by a jury. ECF No. 16-6 at 70. The trial court also told Petitioner that he was waiving his right to challenge the constitutionality of the death penalty statute by pleading guilty, and Petitioner indicated that he understood. ECF No. 16-6 at 70. There were no challenges made to the constitutionality of S.C. Code Ann. § 16-3-20 during the guilty plea proceedings. Nor was the issue raised in Petitioner's direct appeal. See ECF No. 16-6 119-34.

2. Procedural Default of This Ground

Respondents assert this ground is procedurally defaulted because Petitioner elected to plead guilty, thus triggering mandatory judicial sentencing, and, thereafter, expressly waived the right to challenge the constitutionality of the controlling statute. ECF No. 90 at 39-40. Petitioner argues he did not waive his Sixth and Eighth Amendment challenges to S.C. Code Ann. § 16-3-20 by pleading guilty and asserts trial counsel were ineffective for failing to object to mandatory judge sentencing at the time of his guilty plea. ECF No. 104 at 32-38.

The court agrees with Respondents that Ground One is procedurally defaulted. For Petitioner to properly challenge the constitutionality of S.C. Code Ann. § 16-3-20, he needed to raise the issue at his guilty plea and then further pursue that claim in his direct appeal to the South Carolina Supreme Court. He did not do so, rendering this ground procedurally defaulted. See Kornahrens v. Evatt, 66 F.3d 1350, 1357 (4th Cir. 1995) (“[I]f a defendant defaults by not following proper state appellate procedure, causing the state courts to rule against him solely on state-law procedural grounds, we have no power to review his defaulted issues ....”).

Petitioner's interlocutory petition to the South Carolina Supreme Court was not the proper avenue to have his challenge to S.C. Code Ann. § 16-3-20 considered by the highest court in South Carolina. See In re Breast Implant Product Liability Litigation, 503 S.E.2d 445, 447 n.2 (S.C. 1998) (indicating the South Carolina Supreme Court did “not generally accept matters on a writ of certiorari that can be entertained in the trial court or on appeal” but finding “exceptional circumstances exist[ed]” where that case involved “[n]ovel questions of law concerning issues of significant public interest . . . contained in numerous state and federal actions” and further finding “[a] decision by this Court would serve the interests of judicial economy by eliminating numerous inevitable appeals raising these issues”); see also Floyd v. Thornton, 68 S.E.2d 334, 339 (S.C. 1951) (“[O]rdinarily the constitutionality of an act should not be determined on an application for discovery or for the issuance of a writ of certiorari.”). Prior to Petitioner's plea, other capital defendants had challenged the constitutionality of S.C. Code Ann. § 16-3-20 by entering guilty pleas and thereafter arguing the statute was rendered unconstitutional by the United States Supreme Court's decision in Ring v. Arizona, 536 U.S. 584 (2002).⁴ See State v. Downs, 604 S.E.2d 377, 380 (S.C. 2004) (finding the capital-sentencing procedure deemed unconstitutional in Ring was distinguishable from South Carolina's and further noting Ring did not involve jury-trial waivers); see also State v. Crisp, 608 S.E.2d 429, 432-33 (S.C. 2005) (rejecting the argument that S.C. Code Ann. § 16-3-20(B) was rendered unconstitutional by Ring and adhering to the reasoning in Downs). Other capital defendants whose guilt was decided by a jury had also challenged the constitutionality of S.C. Code Ann. § 16-3-20 by way of a direct appeal. See State v. Wood, 607 S.E.2d 57, 61 (S.C. 2004) (adhering to the reasoning in Downs). Because it was not properly raised in state court, this issue is procedurally barred here.

4 Also, in a case decided after Petitioner's plea, State v. Inman, 720 S.E.2d 31, 40 (S.C. 2011), the South Carolina Supreme Court explained that a capital defendant could plead guilty and maintain a challenge to mandatory judge sentencing and then pursue that same challenge on appeal. Notably, in Inman, where the challenge to S.C. Code Ann. § 16-3-20 was properly preserved, the South Carolina Supreme Court noted that Inman “abandoned this issue on appeal as he correctly recognize[d] that this issue has been decided against his position.” Inman, 720 S.E.2d at 40.

3. Whether the Procedural Default Can Be Excused Here

Petitioner can overcome the default by demonstrating cause and prejudice or a fundamental miscarriage of justice. In Petitioner's response in opposition to the motion for summary judgment, he asserts that trial counsel were ineffective for failing to object to judge sentencing at the time of Petitioner's guilty plea.⁵ ECF No. 104 at 36-38. “[W]hile ineffective assistance of counsel can constitute ‘cause' for a procedural default, it will only constitute ‘cause' if it amounts to an independent violation.” Barbaris v. Taylor, C/A No. 4:12-229-CMC-TER, 2012 WL 6186499, at *1 (D.S.C. Dec. 12, 2012) (citing Coleman, 501 U.S. at 755). Petitioner fails to demonstrate either deficiency or prejudice based, in part, on the lack of merit to his underlying claim as multiple courts have considered this issue and have found S.C. Code Ann. § 16-3-20(B)'s mandatory judge sentencing constitutional even after the United States Supreme Court's holding in Ring.

5 Petitioner's response in opposition to the motion for summary judgment could also be interpreted to allege the ineffective assistance of trial counsel as a new issue, but that claim was not raised in his petition, nor has he moved to amend his petition to raise a new claim. See Lyman v. CSX Transp., Inc., 364 Fed.Appx. 669, 701 (2d Cir. 2010) (“An opposition to a summary judgment motion is not the place for a plaintiff to raise new claims.”); McKelvy v. Capital One Servs., LLC, No. 09-cv-821, 2010 WL 3418228, at *5 n.7 (E.D. Va. Aug. 20, 2010) (stating that a plaintiff is “bound by the allegations in his complaint and cannot use his opposition to summary judgment to bring new claims”). In any event, if Petitioner was allowed to amend his petition to raise the claim that trial counsel were ineffective for failing to timely object to mandatory sentencing by a judge, he has failed to demonstrate either deficiency or prejudice, as explained here.

Recently, the court fully explained why Ring and its progeny do not invalidate S.C. Code Ann. § 16-3-20. See Mahdi v. Stirling, C/A No. 8:16-3911-TMC, 2018 WL 4566565, at *41-42 (D.S.C. Sept. 24, 2018) (outlining the holdings of Ring and Hurst and explaining why South Carolina's capital statute is distinguishable from the statutes invalidated in those cases). It boils down to this: “[I]f a capital defendant pleads guilty, and waives his right to a jury trial, Ring is not applicable.” Id. at *43 (citing Downs, 604 S.E.2d at 380 (finding Ring “did not involve jurytrial waivers and is not implicated when a defendant pleads guilty” under South Carolina's death penalty statute); Lewis v. Wheeler, 609 F.3d 291, 309 (4th Cir. 2010) (discussing a challenge to Virginia's capital sentencing scheme, which is functionally equivalent to South Carolina's, and finding Ring did not hold “that a defendant who pleads guilty to capital murder and waives a jury trial under the state's capital sentencing scheme retains a constitutional right to have a jury determine aggravating factors”)). The Fourth Circuit found no error in the rejection of Mahdi's claim. Mahdi v. Stirling, 20 F.4th 846, 905-07 (4th Cir. 2021). The Fourth Circuit also specifically considered whether the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004), a case in the Ring line involving a guilty plea, rendered S.C. Code Ann. § 16-3-20(B) unconstitutional. In Blakely, the Supreme Court “stated that, under Apprendi, a judge may impose any sentence authorized ‘on the basis of the facts . . . admitted by the defendant.'” Mahdi, 20 F.4th at 906 (quoting Blakely, 542 U.S. at 303). Mahdi both admitted to the two charged aggravating circumstances in his case and gave consent to judicial factfinding, and, thus, no Blakely violation occurred. Id.

Like Mahdi, Petitioner admitted to the aggravating circumstance as part of his guilty plea and agreed to judicial factfinding. See ECF No. 16-6 at 69-70, 92-97, 113; see also Blakely, 542 U.S. at 310 (“[N]othing prevents a defendant from waiving his Apprendi rights. When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding. If appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty.” (internal citations omitted)). Although Petitioner attempts to distinguish his situation from Mahdi's because he had previously challenged mandatory judge sentencing in a petition for writ of certiorari to the South Carolina Supreme Court, this is a distinction without a difference because Petitioner did not maintain his challenge at the time of his plea.

The court cannot find trial counsel were unreasonable for failing to raise a challenge that had been rejected multiple times at the time of Petitioner's guilty plea. See Mahdi v. Stirling, C/A No. 8:16-3911-TMC, 2018 WL 4566565, at *43 (D.S.C. Sept. 24, 2018) (“Having found South Carolina's death penalty statute constitutionally sound under these standards, the court finds trial counsel were not ineffective for failing to raise a meritless claim.”); see also Strickland, 466 U.S. at 689 (“A fair assessment of attorney performance requires that every effort be made 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.”). Moreover, as discussed later in this order, trial counsel believed there to be a benefit to having his sentence decided by a judge.

Further, to the extent Petitioner argues cause and prejudice to excuse the default pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), his argument is unavailing because the equitable remedy created by Martinez is only applicable when the underlying ground is an ineffective-assistance-of- trial-counsel claim. See Davila v. Davis, 137 S.Ct. 2058, (2017) (declining to expand the parameters of Martinez to include underlying claims of ineffective assistance of appellate counsel).

For these reasons, Petitioner's Ground One is procedurally defaulted, and Petitioner has failed to demonstrate that the default should be excused due to cause and prejudice. Accordingly, the undersigned recommends that Respondents' motion for summary judgment as to Ground One be granted.

B. Ground Two

In Ground Two, Petitioner asserts trial counsel were ineffective for failing to provide accurate advice regarding whether he should plead guilty or by tried by a jury. Respondents argue Petitioner is not entitled to habeas relief as the PCR court “reasonably applied the correct and controlling federal law to the facts of the case as presented . . . in the PCR hearing.” ECF No. 90 at 50.

1. Evidence Before the PCR Court

Petitioner was represented by three attorneys before and during his capital trial. Initially, Jack Howle was appointed to represent Petitioner. See ECF No. 16-5 at 66-86; ECF No. 16-6 at 37. Then, after Petitioner was served with the State's notice of the intent to seek the death penalty, James Babb was appointed as co-counsel. ECF No. 16-5 at 120-34. Howle and Babb handled preliminary matters and trial preparation until July 18, 2008, when John D. Clark was appointed to replace Babb as co-counsel. ECF No. 16-6 at 35-47.

As discussed above, Petitioner indicated a desire to plead guilty but be sentenced by a jury; however, he eventually pled guilty and was sentenced by the trial court pursuant to S.C. Code Ann. § 16-3-20(B). Howle, Clark, and Babb were all present for Petitioner's guilty plea. ECF No. 16-6 at 49-110.

During the PCR evidentiary hearing, Babb gave some insight as to how his strategy developed regarding Petitioner's guilty plea. Babb testified that he attended a conference for defense lawyers where he was able to consult with other attorneys concerning South Carolina's capital statutes, generally, and Petitioner's case, specifically. ECF No. 16-8 at 152-58. Babb also testified that he spoke with multiple well-known capital defense attorneys in South Carolina, including Robert Lominack and Teresa Norris. ECF No. 16-8 at 158-59. While they discussed many issues, the legal issues surrounding Petitioner pleading guilty versus going to trial were a “big piece” of their discussions. ECF No. 16-8 at 159. Babb recalled that Lominack and Norris “had offices together[,]” and he received some statistics from one of them about how Petitioner's “chances of the death sentence by a jury was worse if he maintains his innocence.” ECF No. 16-8 at 163, 164; see also ECF No. 16-8 at 198-99. Babb testified that he drafted a guilty plea tender where Petitioner maintained his right to be sentenced by a jury, and Babb reviewed the document with Petitioner to make sure Petitioner understood everything. ECF No. 16-8 at 161-63. Babb then raised the issue to the South Carolina Supreme Court by way of a petition for writ of certiorari. ECF No. 16-8 at 159-60. However, Babb was replaced as counsel soon thereafter, and he did not recall any further conversations with Petitioner about pleading guilty. ECF No. 16-8 at 160-61, 194. Babb testified that he attended Petitioner's guilty plea because he had rapport with Petitioner, but he “kn[e]w [his] place once [he was] off the case.” ECF No. 16-8 at 168.

Howle testified that Babb was the architect of the guilty plea tender, but he and Babb “discussed it at length.” ECF No. 16-8 at 56. Howle described their reasoning as follows:

[W]e felt that the evidence itself had we went to trial before a jury, that a determination of guilt would be found. If you had gone to 4 or 5 days of the state presenting that type of testimony and then turned around and had another two or three days from the same jury hearing the same circumstances, we felt like that the likelihood of a death penalty quite honestly, was going to be strong.

ECF No. 16-8 at 59. Thus, initially trial counsel preferred to have Petitioner plead guilty and then go straight into a sentencing phase with the jury. ECF No. 16-8 at 60. However, because that was not an option, trial counsel were left with either pleading not guilty and having a jury determine Petitioner's guilt and sentence or pleading guilty and having a judge determine Petitioner's sentence. According to Howle, apart from any statistics that counsel had, they were “looking at the evidence itself and simply felt that rather than having the jury hear all of that twice . . . if we could kind of avoid that, and go with the judge hearing it and hearing our mitigation . . .” that would be preferable. ECF No. 16-8 at 60-61. In particular, trial counsel believed their experts were “going to be really helpful to Corey. And we thought there was a better course of action.” ECF No. 16-8 at 78. As to whether the decision to have Petitioner plead guilty was re-evaluated when Babb was replaced by Clark, Howle testified that the decision was largely made before Clark was involved in the case, but he did not recall Clark questioning the decision or articulating that he thought counsel should proceed differently. ECF No. 16-8 at 66. Additionally, Howle echoed Babb's testimony that there were multiple conversations with Petitioner about the guilty plea, and even after Babb was replaced, Howle continued to discuss the issue with Petitioner to make sure Petitioner understood “everything that was presented in that agreement.” ECF No. 16-8 at 85-86.

In his testimony, Clark confirmed that, when he was appointed, Howle and Babb told him that they had already decided to have Petitioner plead guilty and be sentenced by a judge. ECF No. 16-9 at 16. Clark did not question the wisdom in that decision, but he did consider the benefits of pleading guilty, and he believed the guilty plea “was going to be [Petitioner's] gesture of accepting responsibility. And that could be somewhat of a mitigation for him.” ECF No. 16-9 at 20. Clark testified that Petitioner had already discussed the guilty plea with counsel prior to his appointment, and once Clark joined the defense team, there were additional discussions. ECF No. 16-9 at 21. Clark further explained the reasoning behind having Petitioner plead guilty and be sentenced by the judge:

The rationale behind it was that because of the nature of the crime and all the circumstances that it would invoke sympathy, great sympathy from potential jurors and that because . . . judges deal with these issues all the time that it would not have the shock impact on a person who has presided over many violent cases, many death cases. But that people from the community were just outraged and overcome with sympathy.

ECF No. 16-9 at 34-35.

Petitioner also testified at the PCR evidentiary hearing. According to Petitioner, trial counsel told him a guilty plea “was the best opportunity for me . . . [t]o not get death.” ECF No. 16-9 at 112. Petitioner further testified he had planned on going to trial “from the beginning” but pled guilty on trial counsel's advice. ECF No. 16-9 at 133.

At the evidentiary hearing, Petitioner submitted an affidavit from Teresa Norris, wherein she stated, “I am positive that I have NEVER advised any attorney in a capital case to advise their client to plead guilty and waive jury sentencing without a pretrial agreement.” ECF No. 16-11 at 73.

2. The PCR Court's Decision

After summarizing the hearing testimony and the legal standards for ineffective assistance of counsel, the PCR court offered the following analysis regarding Petitioner's claim that trial counsel was ineffective for their advice regarding the guilty plea:

“Before deciding whether to plead guilty, a defendant is entitled to ‘the effective assistance of competent counsel.'” Padilla v. Kentucky, 130 S.Ct. 1473, 1480-81 (2010), quoting McMann v. Richardson, 397 U.S. 759, 771 (1970). This situation is somewhat unique in that there is no suggestion that a trial would have been an option for finding Applicant not guilty. Applicant testified that he knew either way he would be found guilty and would be sentenced either to life without the possibility of parole or death. Applicant repeatedly confessed, and had no basis to contest those multiple statements. Moreover, Applicant had the murder weapons and items stolen in the various break-ins. Further still, he was captured on video

right before Mr. Gainey's murder, and again on video before Mr. Burgess' murder. Additionally, the facts of Mr. Tietjen's murder, the mutilation of the body, the bloody and obscene notes, would likely be very difficult for a jury to hear. Applicant and counsel considered the whole of the case in deciding to plead guilty. Though Applicant now contests the accuracy of the statistics counsel relief upon [sic], those statistics are but part of the counsel's consideration. Mr. Howle testified those statistics were gathered by Mr. Babb, but, independent of those statistics, Mr. Howle believed that Applicant's best opportunity would be before a more neutral figure-a judge rather than jury. Mr. Clark also testified that that was his belief as well-especially here where particularly heinous facts would be presented. Mr. Babb was convinced that Applicant needed to demonstrate as much remorse as possible to have hope of avoiding a death sentence. Thus, the record supports that all counsel-Mr. Howle, Mr. Babb, and Mr. Clark-agreed with the reasoning of entering the plea in this particular case. Further, the record shows that Applicant agreed that allowing the judge to hear the case was in his best interest, and, particularly, that counsel significantly consulted with Applicant, covering varied and specific aspects of pleading guilty. See Respondent Exhibit 1.

Simply, the best hope does not equate to a guarantee of securing a desired result. The advice of counsel in this case constituted well-reasoned strategy, not solely based on statistics, but on experience and knowledge of the community jurors. The plea was knowingly and voluntarily given with reasonable advice of well-experience [sic] counsel. Applicant has failed in his burden of proof.

ECF No. 16-12 at 104-05.

The PCR court also considered Petitioner's claim that his Sixth Amendment right to counsel had been violated during the period where he was deciding whether to enter a guilty plea. ECF No. 16-12 at 106-09. As explained by the PCR court, Petitioner “argue[d] that his Sixth Amendment right to counsel should encompass the right to two counsel as provided by statute[,]” but the court rejected that suggestion. ECF No. 16-12 at 106. The PCR court specifically found that Howle “provided the anchor to the representation,” having been appointed prior to the notice of intent to seek the death penalty and having stayed on the case until the notice of appeal was filed. ECF No. 16-12 at 108. The PCR court further acknowledged that Babb had been replaced on the defense team, and while his replacement, Clark, “admittedly had limited time to be involved in the case, . . . [Clark] was given all the discovery, met with the client, . . . engaged in discussion, agreed with the rationale of the plea, and actively prepared and participated in the sentencing proceedings.” ECF No. 16-12 at 109. According to the PCR court, “[i]n the plainest of terms, the record shows that Applicant was represented throughout the process.” ECF No. 16-12 at 109.

3. Analysis

Because the PCR court ruled on the merits of this claim, the court is focused on whether the PCR court's determination is either based on unreasonable factual findings or resulted in a decision that is contrary to, or involved an unreasonable application of, federal law.⁶ Petitioner offers a list of proportedly erroneous factual findings by the PCR court. ECF No. 37 at 36-37. Petitioner also contends “the state court failed to apply the accurate law Hill v. Lockhart, 474 U.S. 52, 59 (1985)[,]” with no additional explanation. ECF No. 37 at 37. In his response in opposition to the motion for summary judgment, Petitioner refocuses his arguments and asserts “the state court's conclusion that counsel's decision was strategic and not deficient was unreasonable and contrary to-or at the very least an unreasonable application of-[Florida v.] Nixon, [543 U.S. 175 (2004),] where it failed to acknowledge that the decision was made without an adequate assurance of a life sentence.” ECF No. 104 at 40. The undersigned will separately address the petition allegations and the response allegations.

6 Petitioner suggests the PCR court's order is “due less deference” because it is largely consistent with the proposed order submitted by the State during the PCR action. ECF No. 37 at 36, n.7. Respondents, on the other hand, note that the PCR court made substantive changes to the State's proposed order, and, furthermore, the PCR court's process, where the court accepted proposed orders from both parties and there was opportunity to seek reconsideration of the court's findings, weighs against the application of any less deference than is due under 28 U.S.C. § 2254. ECF No. 90 at 51, n.12. As this court and others have recognized on many occasions, it is disfavored for courts to wholesale adopt proposed findings and conclusions by one party; “[n]onetheless, the disposition of a petitioner's constitutional claims in such a manner is unquestionably an ‘adjudication' by the state court. If that court addresses the merits of the petitioner's claim, then § 2254(d) must be applied.” Young v. Catoe, 205 F.3d 750, n.2 (4th Cir. 2000) (citing Thomas v. Davis, 192 F.3d 445, 455 (4th Cir. 1999)); see also Jefferson v. Upton, 560 U.S. 284, 293-94 (“Although we have stated that a court's ‘verbatim adoption of findings of fact prepared by prevailing parties' should be treated as findings of the court, we have also criticized that practice.” (quoting Anderson v. Bessemer City, 470 U.S. 564, 572 (1985)). Petitioner has not distinguished his case from others where courts applied deference despite the state courts' adoption of proposed orders. Accordingly, the deferential standard set by § 2254 will be applied here.

a. Petition Allegations of Error

Petitioner argues the PCR court erred in stating “[t]he possibility of entering a guilty plea was explored long before the guilty plea in this case[,]” ECF No. 16-12 at 101, and asserts it would have been more accurate to state “the possibility of entering a guilty plea contingent on receiving a jury for sentencing [was explored long before the guilty plea in this case].” ECF No. 37 at 36 (emphasis in original). However, Petitioner's claim that the reality was more nuanced than suggested by the PCR court's wording does not render that factual finding unreasonable. See Winston v. Kelly, 592 F.3d 535, 554 (4th Cir. 2010) (“For a state court's factual determination to be unreasonable under § 2254(d)(2), it must be more than merely incorrect or erroneous. It must be sufficiently against the weight of the evidence that it is objectively unreasonable.” (internal citations omitted)).

Petitioner asserts “[t]he state court erroneously found that trial counsel received expert advice to plead guilty to the judge, whereas expert counsel testified it was as [sic] bad decision and they would have never given such advice.” ECF No. 37 at 36. Petitioner seems to have misconstrued the PCR court's findings. Certainly, the PCR court's order reflects that trial counsel consulted with other attorneys regarding the challenge to mandatory judicial sentencing. See ECF No. 16-12 at 102. Some of those attorneys were recognized capital defense attorneys, but the order only references that Babb requested and received statistics from those attorneys which “supported that a defendant would be more likely to be sentenced to death by jury if [sic] maintained he was not guilty.” ECF No. 16-12 at 102. The order does not discuss what other advice those attorneys provided or how it was received. Petitioner's assertion of error by the PCR court is misplaced.

According to Petitioner, the PCR court erred in finding “all counsel-Mr. Howle, Mr. Babb, and Mr. Clark-agreed with the reasoning of entering the plea in this particular case.” ECF No. 16-12 at 105. Petitioner argues, “Babb-lead counsel until the last month and the one closest with Bryant, had only agreed to a guilty plea if a jury sentencing was a possibility.” ECF No. 37 at 36. However, based on the court's review of the record, it appears Petitioner may have overstated Babb's testimony. It is clear Babb was in favor of Petitioner pleading guilty if he could be sentenced by a jury. ECF No. 16-8 at 152-61. But that option was eliminated. According to Babb, “from the time that ruling was made until I was relieved from the case, I do not recall having any discussions with Mr. Bryant about what the next step would be vis-a-vis him pleading guilty. I mean you could go to trial either way.” ECF No. 16-8 at 161. Babb never testified as to his opinion on whether Petitioner should have pled guilty or not. However, he did testify that there was some benefit to expressing remorse by pleading guilty.⁷ See ECF No. 16-8 at 154-55. The PCR court concluded that all three men who served as trial counsel “agreed with the reasoning of entering the plea[,]” and this court does not find that conclusion unreasonable based on Babb's testimony-in particular, his acknowledgement that there was a benefit to remorse and his belief that Petitioner's “chances of the death sentence by a jury was worse if he maintains his innocence.” See ECF No. 16-8 at 164. Additionally, Howle's and Clark's testimony indicated that Babb agreed with the decision to have Petitioner plead guilty and be sentenced by a judge. See ECF No. 16-8 at 66 (“[A]s far as Jim and I were concerned with what we knew the facts and . . . as the reports of the experts came back. We felt that that was the better decision.”).

7 It is unclear if Babb's view on the benefit of remorse was strictly limited to the jury-trial context or not.

Petitioner next argues “[t]he state court erroneously found that trial counsel ‘significantly consulted' with Bryant and that the decision to plead was well reasoned....” ECF No. 37 at 36. Whether trial counsel's advice was well-reasoned will be addressed in more detail below. As to whether trial counsel “significantly consulted” with Bryant, the undersigned cannot find the PCR court was unreasonable in that finding. Howle testified that he was “certain” the defense team spoke with Petitioner multiple times about waiving his right to trial and pleading guilty. ECF No. 16-8 at 84. Howle had written documentation of their conversations about pleading guilty after the state supreme court denied certiorari and after Babb was replaced. ECF No. 16-8 at 85-86. Clark also confirmed that he had discussions with Petitioner about pleading guilty although his discussions were much more limited due to when he joined the defense team and his relationship with Petitioner. ECF No. 16-8 at 33-34. Petitioner takes a different view of the evidence-that Howle was essentially an absent member of the defense team and the defense team's reasons for advising Petitioner to plead guilty were entirely post hoc. However, as cited above, the PCR court's findings are not inconsistent with the evidence presented at the PCR evidentiary hearing. Furthermore, Petitioner's contrary view of the evidence does not constitute clear and convincing evidence sufficient to overcome the presumption of correctness afforded the PCR court's findings. See Wood v. Allen, 558 U.S. 290, 301 (2010) (“[E]ven if ‘[Reasonable minds reviewing the record might disagree' about the finding in question, ‘on habeas review that does not suffice to supersede the trial court's . . . determination.'” (quoting Rice v. Collins, 546 U.S. 333, 341-42 (2006))).

Petitioner argues “there were no ‘statistics' that exist, at the time of Bryant's plea, PCR hearing, or now which would support trial counsel's statement that they relied on statistics showing a guilty plea was better than a trial.” ECF No. 37 at 37. First, trial counsel indicated, and the PCR court confirmed, that trial counsel's advice to Petitioner was based on trial counsel's view of the evidence, not on any statistics. See ECF No. 16-8 at 60-61. The “statistics” themselves do not appear to have been included in the record; however, the affidavit submitted by Norris states,

An accurate statement of the empirical and statistical research would reflect that capital defendants who present a denial defense during trial, but are then found guilty, are sentenced to death more often than defendants who admit guilty [sic] or at least some responsibility, for example by admitting a lesser included offense.

ECF No. 16-11 at 73. After his petition for certiorari was denied, Petitioner's guilty plea tender stated,

Upon the basis of the empirical and statistical research which exists I understand that should I plead innocent, but then be found guilty by a jury, there exists an increased chance (i.e., a statistically significant correlation) that I would more likely be subjected to a sentence of death by that jury that I would if my previously made, but denied, request to plead guilty and have my sentence determined by the jury be granted.

ECF No. 16-11 at 35. From what the court can tell, it seems the referenced “statistics” do not unfairly contrast Petitioner's chances between pleading guilty and being sentenced by a jury and pleading not guilty and being sentenced by a jury. The reference to “statistics” in the guilty plea tender appears disconnected to the option of pleading guilty and being sentenced by a judge-the option Petitioner chose. Consequently, the statistics are of little import in the context of Petitioner's case, as confirmed by trial counsel and the conclusions by the PCR court.

Petitioner next asserts that the PCR court incorrectly found it “‘unique' that Bryant would likely be found guilty at trial-[but] this is like the vast majority of capital cases on [sic] not unique.” ECF No. 37 at 37. Petitioner's assertion takes the PCR court's statement out of context. The PCR court outlined the legal standards for determining ineffective assistance of counsel in cases of guilty pleas and also how the prejudice inquiry varies based on whether a petitioner is raising a guilt-phase or sentencing-phase issue. ECF No. 16-12 at 103-04. The PCR court then stated, “This situation is somewhat unique in that there is no suggestion that a trial would have been an option for finding Applicant not guilty.” ECF No. 16-12 at 104. The PCR court went on to explain that the evidence of Petitioner's guilt was particularly overwhelming. ECF No. 16-12 at 104-05. In the order denying Petitioner's Rule 59(e) motion, the PCR court further clarified that “[t]he Court found it ‘unique' that Applicant was not arguing the traditional definition of ‘prejudice.'” ECF No. 16-12 at 150-51. Petitioner's current arguments do not acknowledge the PCR court's clarification, but this court does not find the PCR court's description of Petitioner's situation as “somewhat unique” to be unreasonable.

Finally, Petitioner argues the PCR court erred in finding Clark had months to prepare when he had less than that. The PCR court addressed this assertion of error in its order denying Petitioner's Rule 59(e) motion, explaining:

The record reflects that Mr. Clarke [sic] was appointed on July 18, 2009 to replace Mr. Babb. The guilty plea was held Aug 18, 2008 and the sentencing phase was Sept 2, 2008. Therefore, Clark had a month to prepare for the guilt phase and about 6 weeks to prepare for the sentencing phase. The use of “months” may have been an oversight in the Order denying the PCR Application, the error was de minimus and the record shows Mr. Clarke represented Applicant longer than a month before the plea and sentencing phases ended.

ECF No. 16-12 at 151. Here, too, the court finds any error by the PCR court to be minor and not sufficient to warrant habeas relief.

Petitioner's conclusory allegation that the PCR court “failed to apply the accurate law Hill v. Lockhart, 474 U.S. 52, 59 (1985)[,]” ECF No. 37 at 37, deserves no analysis here, as Petitioner has failed to articulate the parameters of that claim, and, thus, the court cannot properly address it.

b. Response Allegations of Error

In his response in opposition to the motion for summary judgment, Petitioner challenges the PCR court's finding that trial counsel made a strategic decision in advising Petitioner to plead guilty and be sentenced by the trial court. According to Petitioner, the Supreme Court's opinion in Florida v. Nixon, 543 U.S. 175 (2004), demonstrates that there could be no legitimate strategy in entering a guilty plea without a recommendation by the prosecution of a sentence less than death. Additionally, Petitioner asserts “[t]he core problem with the state court decision on this issue is that it failed to grapple with or even acknowledge the real strategy of trial counsel and how Babb's withdrawal from the case bungled the strategy.” ECF No. 104 at 40.

The undersigned first considers Petitioner's argument that the PCR court's determination is contrary to, or an unreasonable application of, Nixon. Like Petitioner, Nixon was facing a potential death sentence, and the evidence that he was guilty was overwhelming. 543 U.S. at 18081. Nixon's counsel was unsuccessful in negotiating a lesser sentence, so counsel turned his attention to Nixon's inevitable bifurcated trial and “concluded that the best strategy would be to concede guilt, thereby preserving his credibility in urging leniency during the penalty phase.” Id. at 181. Counsel explained his strategy to Nixon, who “was generally unresponsive” and who eventually refused to participate at trial. Id. at 181-82. Counsel forged ahead with his strategy- conceding guilt to the jury during the guilt phase and focusing his arguments on the sentencing phase. Id. at 182-83. The Supreme Court considered whether trial counsel was deficient for conceding guilt to a jury absent express consent to do so from the defendant. Id. at 186-87. In considering this issue, the Court recognized that counsel is not required to have a defendant's consent for “every tactical decision[,]” but the decision of whether to admit guilt is a decision over which the defendant retains “ultimate authority” as it concerns “the exercise or waiver of [a] basic trial right[ that is] of such moment that [it] cannot be made for the defendant by a surrogate.” Id. at 187 (internal quotation marks and citations omitted). Even so, the Court found Nixon's trial counsel was not deficient for failing to obtain express consent from Nixon where counsel had fulfilled his duty of consultation and had proceeded with the strategy he believed to be in Nixon's best interest when Nixon refused to engage in the process. Id. at 189. The Court further recognized that a concession of guilt in a non-capital case might signal deficiency, but “[a]ttorneys representing capital defendants face daunting challenges in developing strategies, not least because the defendant's guilt is often clear .... Unable to negotiate a guilty plea in exchange for a life sentence, defense counsel must strive at the guilt phase to avoid a counterproductive course.” Id. at 191.

According to Petitioner, “[n]either Nixon nor the authorities the Supreme Court relied upon even entertain that entering a guilty plea could be a sound strategy absent the prosecution's recommendation of a sentence less than death.” ECF No. 104 at 39. Petitioner's conclusion relies heavily on a footnote in Nixon, where the Supreme Court explained:

As [Nixon's counsel] determined here, pleading guilty without a guarantee that the prosecution will recommend a life sentence holds little if any benefit for the defendant. See ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases § 10.9.1, Commentary (rev. ed. 2003), reprinted in 31 Hofstra L. Rev. 913, 1045 (2003) (“If no written guarantee can be obtained that death will not be imposed following a plea of guilty, counsel should be extremely reluctant to participate in a waiver of the client's trial rights.”). Pleading guilty not only relinquishes trial rights, it increases the likelihood that the State will introduce aggressive evidence of guilt during the sentencing phase, so that the gruesome details of the crime are fresh in the jurors' minds as they deliberate on the sentence. See Goodpaster, [The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases,] 58 N.Y.U. L. Rev.[ 299,] 331 [(1983)]; supra, [183-85, 187-89].

543 U.S. at 191 n.6. Of course, due to the statutory scheme in South Carolina, Petitioner's trial counsel faced a different set of options than did Nixon's. Both defendants had the option to enter a plea of not guilty and proceed to trial before a jury, either conceding guilt or not. However, if Nixon pled guilty, he would have had to deal with a sentencing phase in front of a jury that could include “aggressive evidence of guilt” in addition to whatever aggravating evidence the State had to support a sentence of death. Petitioner, on the other hand, could plead guilty and be sentenced by a judge. Petitioner now argues there can never be a benefit to pleading guilty without a negotiation for a sentence less than death. However, trial counsel disagreed. They saw a benefit to being sentenced by a judge, who they estimated was a more neutral fact-finder. See ECF No. 169 at 34-35 (Clark explaining “[s]ome [of] the rationale was the judge might be able to fairly evaluate the evidence” as opposed to “people from the community [who] were just outraged and overcome with sympathy”).

To the extent Petitioner claims that Nixon stands for the proposition that counsel's advice to a capital defendant to plead guilty can never be reasonable without some guarantee from the prosecution of a sentence less than death, the undersigned disagrees. Indeed, the Supreme Court has repeatedly eschewed such hard and fast boundaries as to the realm of reasonable representation-there are too many variables involved to set such bright-line rules. See Strickland, 466 U.S. at 688-89 (“No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how to best represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.”).

In addition to his argument that a guilty plea could never be a legitimate strategy in a capital case, Petitioner disagrees with the PCR court's finding that trial counsel actually had such a strategy here. That is, both Petitioner and the PCR court acknowledge the defense team's initial strategy to challenge the South Carolina statute and have Petitioner plead guilty and then be sentenced by a jury, but the PCR court accepted trial counsel's testimony that they simply adjusted their strategy when they learned their preferred option was not available, and Petitioner argues that “[w]hen trial counsel discovered they would not have jury sentencing, they failed to reconsider their strategy and rushed into disaster.” ECF No. 104 at 40. Based on Petitioner's recitation of the facts, he does not accept Howle's and Clark's testimony that they believed it would be best for Petitioner to plead guilty and be sentenced by a judge. However, the PCR court credited that testimony. See ECF No. 16-12 at 105 (“Mr. Howle believed that Applicant's best opportunity would be before a more neutral figure-a judge rather than jury. Mr. Clark also testified that that was his belief as well-especially here where particularly heinous facts would be presented.”). The PCR court's credibility findings are entitled to deference in this habeas action. Wilson v. Ozmint, 352 F.3d 847, 858-59 (4th Cir. 2003); see also Marshall v. Lonberger, 459 U.S. 422, 434 (1983) (“[F]ederal habeas courts [have] no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them”). Petitioner's different take on the testimony is not “clear and convincing evidence” that properly refutes the PCR court's factual findings under 28 U.S.C. § 2254(e). Contrary to Petitioner's claim, the PCR court did not “fail[] to engage with these facts....” ECF No. 104 at 40. And Petitioner's disagreement with the PCR court's factual findings does not render those findings unreasonable.

For all of the above reasons, Petitioner has failed to show that that he is entitled to relief under § 2254. Accordingly, it is recommended that Respondents' motion for summary judgment be granted as to Ground Two.

C. Ground Three

In Ground Three, Petitioner argues trial counsel was ineffective for failing to object to the State's presentation of additional aggravating evidence while he was denied the right to present additional mitigating evidence. Respondents assert that the PCR court correctly resolved the issue, and, thus, Petitioner is not entitled to habeas relief here.

1. Evidence Before the PCR Court

On August 18, 2008, Petitioner pled guilty to three counts of murder and a number of lesser crimes, but he was only facing the death penalty for the murder of Tietjen. See ECF No. 16-6 at 49-111. At the start of the guilty plea proceedings, Solicitor Kelly Jackson informed the trial court that Petitioner was in court to plead guilty to all of the charges against him, but he was deferring any sentencing proceedings until September 2, 2008. ECF No. 16-6 at 51. Similarly, after the trial court had accepted Petitioner's guilty plea, the trial court stated,

I want to thank everyone for being present and I know you've talked with the Solicitor's office and those associated with the defense counsel that the purpose of today's hearing was simply to allow Mr. Bryant to enter his plea and there was no, never any intention to take any testimony today, that it was just simply for the matter of entering a plea. What we will do and we're scheduled for the week of September the 2nd and the following week should we need it. We will proceed with a trial on the sentencing phase and at that time, of course, the Court will take testimony and any motions or anything that we need to address at that time.

ECF No. 16-6 at 110.

On September 2, 2008, the trial court began by recounting that Petitioner had pled guilty to a number of charges and then stated, “[W]e're here today to proceed with the sentencing phase with matters associated with th[e] indictment [ for which the State was seeking the death penalty, 2006-GS-43-699.]” ECF No. 16-1 at 21. During the sentencing phase, the State presented its evidence in aggravation, and the defense team submitted its evidence in mitigation. ECF No. 161 at 117 et seq. Both parties gave their closing arguments on September 9, 2008, and the trial court took the matter of Petitioner's sentence for the Tietjen murder under advisement. See ECF No. 165 at 47-48.

When court resumed on September 11th, the trial court first denied the defense's motion to reopen the case to hear evidence from an additional mitigation witness who had come forward, Edward Gause.⁸ ECF No. 16-5 at 49-52. The trial court then asked if the State was ready to proceed, and Solicitor Jackson stated, “[t]here are a few individuals that would like to speak on their particular cases that he plead guilty to.” ECF No. 16-5 at 54. The court then heard brief statements from the following individuals: James Ammons, from whose home Petitioner stole a gun; Christopher Gainey, whose father Petitioner murdered; and Robbie Burgess, whose brother Petitioner murdered. ECF No. 16-5 at 54-58.

8 Gause's name is incorrectly listed as Edwin Goss in the trial record and in other parts of the record.

The trial court then gave the defense the opportunity to be heard. ECF No. 16-5 at 58. Howle indicated that Petitioner's family did “not feel they emotionally could come here and talk.” ECF No. 16-5 at 58. When asked if Petitioner wished to address the court, Howle stated Petitioner did not, but the letter Petitioner had written the Tietjen family covered what “he would say if he could.” ECF No. 16-5 at 58-59. That letter was in evidence. ECF No. 16-5 at 59. The trial court then announced Petitioner's sentences for all of the crimes to which he pled guilty-beginning with the lesser crimes and concluding with the murder of Tietjen. ECF No.16-5 at 59-63.

At the PCR evidentiary hearing, Howle recalled that he did not object to the statements by Ammons, Gainey, and Burgess, explaining:

I think probably how I looked at it at the time was, if we were standing up to plea, the victim can certainly stand up and tell the judge why this person should go to jail or whatever they are saying. And maybe this had more of an impact then [sic] we realized. But the judge heard both sides. Corey had already pled, and he had determined the sentence. He was just virtually asking some of the victims if they wanted to say something similar to a plea. But at the time did it not seem as significant to me as maybe it does when you look at it later.

ECF No. 16-8 at 68-69. When asked if he considered asking to cross-examine the victims, Howle stated, “I did not care to cross examine to tell you the truth. I didn't see where it had any bearing.” ECF No. 16-8 at 92. Clark had some difficulty recalling the statements made after the close of the evidence, but he testified it would have been a joint responsibility to make any objections that trial counsel believed necessary. ECF No. 16-9 at 26-29, 38, 42-43.

Solicitor Jackson testified that the sentencing phase was “[c]ompletely limited to the Tietjen murder.” ECF No. 16-8 at 252. However, Solicitor Jackson also confirmed that South Carolina law allows for victims “to make impact statements concerning their particular cases . . . .” ECF No. 16-8 at 252.

During the evidentiary hearing, the PCR court questioned PCR counsel as to how counsel believed the victims' statements from Petitioner's other crimes should have been provided to the trial court, noting that if sentencing on Petitioner's non-capital crimes had not been deferred, the trial court would have heard the non-capital victims' statements at the time of the guilty plea and would have heard all of the same evidence prior to announcing Petitioner's capital sentence. ECF No. 16-9 at 48-50. PCR counsel stated, “I think he should have heard it when they were taking victim impact and aggravation evidence from the penalty phase. Just like they do in every other criminal or capital case I have been involved in.” ECF No. 16-9 at 50.

2. PCR Court's Determination

The PCR court rejected both Petitioner's claim that his due process rights were violated when the trial court heard non-capital victim impact statements after the close of evidence in the capital proceedings and his claim that trial counsel were ineffective for failing to object to the same. ECF No. 16-12 at 114-17. The PCR court noted that South Carolina law requires that a sentencing judge review victim impact statements prior to sentencing but also that the defense must be given the opportunity to respond. ECF No. 16-12 at 116. And while PCR counsel had urged that the trial court should have heard non-capital victim impact testimony as part of the evidence in the sentencing phase, no law compelled that procedure. ECF No. 16-12 at 117. The PCR court also appeared to reject the factual basis for Petitioner's claim-that the non-capital victim impact statements had been part of the trial court's consideration in sentencing Petitioner to death for the murder of Tietjen. As explained by the PCR court:

Contrary to the claims of Applicant, this evidence was not related to the sentencing for the capital crime, but for the non-capital crimes. Here, Applicant had the opportunity to confront the impact witnesses prior to the sentence in their noncapital cases. No request was made to examine them which is authorized under state law. The victims had the statutory right to be heard and the defense had the right to respond. This Court is constrained to find that plea counsel was not ineffective for failing to make an objection to the entry of evidence under either prong of Strickland v. Washington, supra. Further, there is no constitutional violation where there is an opportunity to be heard and confront the evidence prior to the sentencing for their crimes, independent of the capital case. Applicant has failed in his burden.

ECF No. 16-12 at 117.

3. Analysis

Petitioner asserts that the PCR court's rejection of this ground was erroneous in a number of respects. According to Petitioner, the PCR court's determination is contrary to the clearly established federal law in Payne v. Tennessee, 501 U.S. 808 (1991), and Gardner v. Florida, 430 U.S. 349 (1977). He further argues the PCR court unreasonably applied Strickland in finding trial counsel were not ineffective for failing to object to the admission of the victim impact evidence. Finally, he asserts the PCR court “unreasonably found that Mr. Bryant had the opportunity to confront Ammons' and Burgess' unsworn statements by simply ignoring the fact that they were not under oath and not subject to cross-examination.” ECF No. 104 at 45-46.

a. Whether the Trial Court Considered the Non-Capital Victim Impact Statements

The undersigned must first address Petitioner's view of the facts, which is contrary to the findings of the PCR court. Petitioner asserts “the trial judge considered the improper and unsworn victim impact evidence when deciding whether to sentence Mr. Bryant to death.” ECF No. 104 at 45. But Petitioner has offered no evidence to support that assertion. In contrast, the PCR court indicated that the victim impact statements at issue related to Petitioner's non-capital crimes and were not part of the trial court's considerations as to Petitioner's sentence for the Tietjen murder, as evidenced by the PCR court's questions to PCR counsel and the PCR court's order of dismissal. ECF No. 16-12 at 117 (“[T]his impact evidence could have been presented at the time the plea was entered, before the penalty had begun consistent with South Carolina law.... Contrary to the claims of Applicant, this evidence was not related to the sentencing for the capital crime, but for the non-capital crimes.”).

Petitioner's arguments presume that the trial court was unable to compartmentalize the statements made by victims of Petitioner's non-capital crimes from the evidence presented during the capital sentencing phase. That presumption is not consistent with the record or the law. In fact, the record reflects that, at the time of Petitioner's guilty plea, the parties had agreed to defer sentencing on all of Petitioner's crimes, both capital and non-capital. See ECF No. 16-6 at 51-52, 110. Furthermore, the trial court and the Solicitor had the following exchange immediately prior to the victim impact statements by Ammons, Gainey, and Burgess:

THE COURT: . . . At this time, Solicitor, if there's any further presentation by the State regarding sentencing if there's any individuals who wish to be heard I'll be happy to hear from them at this time.

MR. JACKSON: Your Honor, there are a few individuals that would like to speak on their particular cases that he pled guilty to. Is that what you're referring to?

THE COURT: Yes, sir.

ECF No. 16-5 at 52-54. In announcing the decision that Petitioner would be sentenced to death for murdering Tietjen, the trial judge noted he had “spent many hours reviewing” the evidence submitted by the parties regarding the aggravating and mitigating circumstances. ECF No. 16-5 at 62. The trial court did not indicate that the victim impact statements regarding Petitioner's noncapital crimes, which were offered immediately before Petitioner's sentences were announced, had been a part of his analysis. Petitioner's assertion to the contrary is speculation.

Although Petitioner fails to recognize the trial court's ability to separate the relevant sentencing considerations, the law recognizes a judge's ability to take such measures.⁹ See, e.g., Schultz v. Butcher, 24 F.3d 626, 632 (4th Cir. 1994) (adopting that “‘Rule 403 assumes a trial judge is able to discern and weigh the improper inferences, and then balance those improprieties against probative value and necessity. Certainly, in a bench trial, the same judge can also exclude those improper inferences from his mind in reaching a decision.'” (quoting Gulf States Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th Cir. Unit A Jan. 1981))).

9 Counsel and the trial judge alike demonstrated an understanding of the scope of Petitioner's capital sentencing proceeding. When the prosecutor referenced Petitioner's other victims during opening statements, Clark raised the following objection:

I know it's an opening statement but the State has already gone beyond the scope of this hearing and I submit that the-anything other than the aggravation regarding Mr. Tietjen and indictment 699 is beyond the scope of the hearing and not relevant. As I understand it the other crimes may be admissible for character purposes only, but I would object to Mr. Saleeby trying three cases in one.

ECF No. 16-1 at 108. Clark objected to the State's opening a second time to again note the scope of the sentencing phase. ECF No. 16-1 at 111-13. The court ultimately overruled Clark's objections, acknowledging that Petitioner's other crimes had some relevance to the proceedings and giving some latitude during opening statements. ECF No. 16-1 at 108. Nevertheless, this demonstrates that the parties and the trial court were well aware of the limits on the evidence to be presented and considered in the sentencing phase.

Without this foundational element of his argument-that is, without assuming the trial court could not keep separate the capital sentencing considerations from the non-capital sentencing considerations-the remainder of Petitioner's assertions under Ground Three fall. Nevertheless, the undersigned addresses Petitioner's claims that the PCR court's order is contrary to, or an unreasonable application of federal law, or is based on unreasonable factual findings.

b. Whether the PCR Court's Determination Is Contrary to, or an Unreasonable Application of, Supreme Court Precedent

The undersigned now turns to whether the PCR court's decision is contrary to Supreme Court precedent in Payne and Gardner. In Payne, the Supreme Court overruled its own precedent that the Eighth Amendment prohibited a jury from considering victim impact evidence during the sentencing phase of a capital trial. 501 U.S. at 817-18, 828-30. The Court held:

[I]f the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed.

Id. at 827. In Gardner, which was decided well before Payne, the Court held it was unconstitutional for a judge to sentence a defendant to death based, in part, on a confidential presentence report. 430 U.S. at 351. The Court “conclude[d] that petitioner was denied due process of law when the death sentence was imposed, at least in part, on the basis of information which [the petitioner] had no opportunity to deny or explain.” Id. at 362. Together, these cases stand for the proposition that victim impact evidence is allowed, but the defendant must have the opportunity to deny or explain that evidence.

As Petitioner notes, the PCR court did not recognize or expressly apply Payne and Gardner in considering this issue. Instead, the PCR court focused on the South Carolina statute that requires trial courts to hear or review victim impact statements and also to allow the defense to respond to such statements. See ECF No. 16-12 at 116. As already explained above, the PCR court viewed the victim impact statements from Ammons, Gainey, and Burgess as “not related to the sentencing for the capital crime, but for the non-capital crimes.” ECF No. 16-12 at 117. Because the law set forth by Payne and Gardner pertains to capital sentencing issues, those cases were not on point. However, in the PCR court's order denying Petitioner's Rule 59(e) motion, the PCR court briefly explained that the trial court's acceptance of victim impact statements on Petitioner's non-capital crimes did not run afoul of Gardner. See ECF No. 16-12 at 153 (“Applicant did have the opportunity to confront and respond to the impact witnesses which satisfies the requirements of Gardner.”). Thus, this court cannot agree with Petitioner that the PCR court's decision is either contrary to, or an unreasonable application of, that case law.

As to the argument that the PCR court misapplied Strickland in finding trial counsel were not ineffective when they failed to object to the victim impact statements, Petitioner's arguments again rely on his assumption that the statements were part of the trial court's consideration of Petitioner's death sentence. As already explained, that is contrary to the PCR court's findings. The PCR court appropriately concluded there was neither deficiency nor prejudice where “[t]he victims had the statutory right to be heard and the defense had the right to respond” as to the sentences in Petitioner's non-capital crimes. ECF No. 16-12 at 117.

Petitioner argues that it was unreasonable for the PCR court to find that he “had the opportunity to confront Ammons' and Burgess' unsworn statements by simply ignoring the fact that they were not under oath and not subj ect to cross-examination.” ECF No. 104 at 45-46. Again, Petitioner perceives this issue as related to his death sentence, but the PCR court found it was not. The PCR court looked at what was required for non-capital victim impact statements and found the law had been complied with. Petitioner has not demonstrated more was required for the trial court's consideration of his non-capital sentences. The PCR court's factual findings were not unreasonable as urged by Petitioner.

For all of the above reasons, Petitioner has failed to demonstrate that the PCR court's denial and dismissal of this ground was either contrary to, or an unreasonable application of, federal law or the result of unreasonable factual findings. Accordingly, it is recommended that Respondents' motion for summary judgment be granted as to Ground Three.

D. Ground Four

Petitioner next argues that trial counsel were ineffective for failing to proffer or otherwise provide testimony from Edward Gause, a mitigation witness who identified himself to defense counsel after the close of evidence but before the trial court announced Petitioner's sentence. Petitioner further argues appellate counsel was ineffective for failing to raise this issue on appeal. Respondents assert that the PCR court properly disposed of this claim.

1. Evidence Before the PCR Court

On September 9, 2008, trial counsel rested their mitigation case. ECF No. 16-4 at 234. Later that day, the trial court heard closing arguments and took the matter of Petitioner's sentence under advisement. ECF No. 16-5 at 17-47. Court resumed the morning of September 11, 2008. At that time, Howle informed the trial court that just that morning he had received a message from Edward Gause regarding Petitioner's case. ECF No. 16-5 at 49. According to Howle, his office manager returned the call and spoke with Gause's wife, who indicated that Gause had an encounter with Petitioner prior to the murders where Petitioner asked for help. ECF No. 16-5 at 49. Howle had not been able to speak with Gause at that point, but he stated, “[I]f he had contacted us earlier and realized the incident I feel certain we would have called him as a witness and present[ed] the mitigation because I think it was material what he said. It would certainly go to state of mind to mental condition before these offenses happened.” ECF No. 16-5 at 50. Howle moved to reopen the case and have Gause testify. ECF No. 16-5 at 50.

Judge Russo then shared that Gause had also called his home and had spoken to his wife. ECF No. 16-5 at 50-51. But the judge stopped her from telling him too much because he “did not want her to say something that would have been inappropriate.” ECF No. 16-5 at 51. The trial court then denied Petitioner's motion to reopen the evidence, explaining:

I know nothing other than what I've just shared with you about Mr. [Gause] or what he might have to say, but this case has been going on for some time. Both sides have had ample opportunity to present the evidence, and I appreciate your position that this is evidence that was just recently discovered. But at this stage we don't even know if it's evidence. We don't know if it will be anything that's admissible. We don't even know what it is. And I'm going to deny that request to reopen the case and certainly would note any exceptions that you would have to that ruling.

ECF No. 16-5 at 51. The issue was not raised in Petitioner's direct appeal.

At the PCR evidentiary hearing, Gause testified that about a month before the murders he encountered Petitioner in Sumter. ECF No. 16-8 at 105-07. That day, Gause first noticed that Petitioner was shirtless and “sitting down on . . . the edge of the road. It looked like he was playing, you know, just in the sand doing something.” ECF No. 16-8 at 106. A short time later, Gause pulled into a gas station, and Petitioner approached him. ECF No. 16-8 at 106. Gause recounted:

[H]e said man, I need some help. I am messed up. I said what do you mean. He said, man, I am having all kind of weird thoughts. I said what kind of weird thoughts. He would never tell me. All he would say is man, I am screwed up. I am messed up, and I am having weird thoughts. And said I need some help.

ECF No. 16-8 at 106-07. Gause saw Tripp Mayes, a deputy he knew, at the gas station, and walked Petitioner over to Mayes. ECF No. 16-8 at 107. Gause testified, “I left him with the deputy and I went inside. And the best I can remember, when I came out, he was walking off ....And I asked Trip[p], I said what are you going to do. And he said, man he is all screwed up in his mind.” ECF No. 16-8 at 107. Gause stated, “I never thought anymore about it until I started seeing him in the paper.” ECF No. 16-8 at 108. Gause also testified that he mentioned the incident to Mayes again although it may have been after Petitioner was sentenced. ECF No. 16-8 at 108, 118-19.

During his testimony, Howle recalled how and when he learned of Gause's encounter with Petitioner. ECF No. 16-8 at 69-71. When Howle alerted the trial court to Gause's potential testimony, Howle had not spoken to Gause himself. ECF No. 16-8 at 69-70. He was only able to tell the trial court what he believed Gause would testify to-“how [Petitioner] seemed to be kind of . . . spaced out . . .” and how Gause had walked him over to a police officer. ECF No. 16-8 at 70. Howle's investigator was able to confirm Gause's story a couple days after Petitioner's sentence was announced, but the trial court had already denied his motion to reopen the evidence at that point, and Howle did not formally proffer Gause's testimony. ECF No. 16-8 at 70-72. Howle testified that he thought Gause's testimony was important, explaining:

I think it showed a certain frame of mind .... [I]f the judge could have seen that maybe he was not very coherent, or he was saying some things that were really very odd. This was about a month or so before the death. And I would have had no idea what impact that would have had on the judge, but he would certainly have had evidence as much as a month before, Mr. Bryant was acting very irrational, I could guess you could say.

ECF No. 16-8 at 72. On cross-examination, Howle recalled there had been other evidence presented by the defense team that Petitioner had sought help approximately a month before the murders. ECF No. 16-8 at 82-83.

Clark testified that he only vaguely recalled the issue with Gause's potential testimony. ECF No. 16-9 at 26.

Savitz, who represented Petitioner in his direct appeal, testified that he did not consider raising the issue of Gause's testimony, noting:

I don't remember what I thought at the time in the transcript, but I do remember or today when I read it, what I would have thought, I think it would have been somewhat vague and unconnected to the actual incident itself that was being appealed. Having said that, I didn't abandon that issue as a matter of strategy or anything.

ECF No. 16-9 at 56. Savitz stated, “I mean if I had to do it over again, I would probably raise it.” ECF No. 16-9 at 57. On cross-examination, Savitz testified that he reviewed the entire record, and what he would have thought when he saw the Gause issue was “it was to[o] attenuate[d] from the crime. And I mean it just, you know, it was just too vague for me to do a whole lot with I thought.” ECF No. 16-9 at 59. According to Savitz, it was not neglect that caused him not to raise the issue; he stated, “I just didn't think it was an issue at the time.” ECF No. 16-9 at 60.

Dr. Donna Schwartz-Watts, an expert in forensic psychiatry, who had testified as part of Petitioner's mitigation presentation, testified at the PCR evidentiary hearing that Gause's testimony would have been helpful to her earlier testimony during the sentencing proceeding. ECF No. 16-9 at 72-73. According to Dr. Schwartz-Watts, Gause's testimony was important in that it was from a neutral witness who observed Petitioner's mental health symptoms before he had any criminal charges and, arguably, a reason to fabricate symptoms. ECF No. 16-9 at 72. Gause's testimony would have corroborated other evidence Schwartz-Watts relied upon and testified to- “it's just another point and time before the crime of someone giving you a history that's consistent with what my observations have been of him for over seven years now.” ECF No. 16-9 at 72-73.

The State offered an affidavit by Sergeant Tripp Mayes during the evidentiary hearing. ECF No. 16-9 at 133; ECF No. 16-12 at 26-27. In the affidavit, Sergeant Mayes averred he knew Gause, but he had no recollection of “any conversations with Mr. Gause at any time concerning Mr. Gause seeing [Petitioner] prior to the October 2004 murders[,]” nor did he have any recollection of seeing and speaking with Petitioner at the gas station in October 2004 or the preceding months. ECF No. 16-12 at 26-27.

2. The PCR Court's Determination

The PCR court rejected Petitioner's contention that trial counsel were ineffective for failing to properly proffer and preserve the issue for appeal. The PCR court found:

Mr. Howle promptly brought the matter to the Court's attention and requested the ability to present Mr. Gause. Mr. Howle underscored that the testimony was expected to go to Applicant's mental state which was a major portion of the mitigation case. Mr. Howle had no further information to give the Court to further bolster his request as Mr. Gause had only made a late disclosure to the defense. Applicant has failed to establish Strickland error.

ECF No. 16-12 at 121.

The PCR court also found Petitioner had failed to meet his burden as to his alternative argument that appellate counsel was ineffective in failing to raise the Gause issue on appeal. As part of that finding, the PCR court noted Savtiz's “candid [testimony] that, in hindsight, he would raise the issue simply because the one he did raise was not successful.” ECF No. 16-12 at 122. However, the PCR court found “no indication of neglect or inadvertence.” ECF No. 16-12 at 122. The PCR court credited Savitz's testimony that “the proffer of testimony was vague and not clearly connected to any of the crimes.” ECF No. 16-12 at 123. The PCR court found Petitioner did not demonstrate that the Gause issue was “stronger” than the single issue Savitz raised in the direct appeal. ECF No. 16-12 at 123.

As to the issue of prejudice, the PCR court determined that Gause's “testimony cannot be given any significant weight.” ECF No. 16-12 at 123. The PCR court noted that Gause's testimony was “faulty in some respects” and, further, that it was missing details that would have lent credibility to his story-for example, Gause testified Petitioner was shirtless on the day Gause encountered him, but Gause failed to recall any tattoos or identifying marks, despite Petitioner's very prominent chest tattoo. ECF No. 16-12 at 123. The PCR court also considered how Gause's testimony would have fit into the rest of the defense team's mitigation case. The PCR court acknowledged Dr. Schwartz-Watts's testimony that “essentially, any corroborating evidence is evidence she would like to have . . . .” ECF No. 16-12 at 123-24. Nevertheless, the PCR court found “no indication that having [Gause's] vague report would have affected any mitigation strategy or diagnosis.” ECF No. 16-12 at 124.

3. Analysis

Petitioner now argues the PCR court erred in finding that neither trial counsel nor appellate counsel were ineffective in how they handled Gause's late-discovered testimony. He asserts, “The ruling cannot be that trial counsel properly preserved the issue and appellate counsel failed to raise it due to vagueness. Either the issue was not properly preserved and appellate counsel should have raised it or trial counsel was ineffective for failing to preserve it.” ECF No. 37 at 55. The court finds Petitioner has misapprehended the PCR court's ruling. The PCR court did not find trial counsel had properly preserved the issue-instead, the court found Petitioner failed to demonstrate deficient performance. ECF No. 16-12 at 121. The PCR court concluded Petitioner “failed to establish Strickland error[,]” where trial counsel had promptly asked the trial court to reopen the evidence and given what limited information was available on the date Petitioner's sentence was announced. Essentially, on the day of sentencing, trial counsel did what he could with what information he had. Strickland requires no more. Strickland, 466 U.S. at 689 (“A fair assessment of attorney performance requires that every effort be made 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.”).

To the extent Petitioner is arguing the PCR court erred in failing to find trial counsel deficient for not properly preserving the issue by submitting Gause's statement or proffering his testimony, the PCR court specifically noted that Gause's statement, which was obtained by trial counsel's investigator days after the sentencing proceedings concluded, was not provided to the PCR court. See ECF No. 16-12 at 119 n.5. Petitioner did not adequately demonstrate that trial counsel had additional information to present to the trial court at that time. Based on the order of dismissal, Petitioner failed to meet his burden of demonstrating that trial counsel's performance was deficient. Here, Petitioner has failed to show that the PCR court's determination was either based on unreasonable factual findings or an unreasonable application of federal law.

As to the PCR court's assessment of appellate counsel's performance, Petitioner argues it was unreasonably based on “a cursory interpretation of appellate counsel's testimony....” ECF No. 104 at 47. According to Petitioner:

[A]ppellate counsel had no true recollection of why he failed to raise the [Gause] issue, admitted that it was “a great issue” and that he could have raised it, testified that it was not a strategic decision to fail to raise the issue, and conceded that he would raise it now.

ECF No. 104 at 47 (citing ECF No. 16-9 at 56-60). Having reviewed the entirety of appellate counsel's testimony, the undersigned disagrees with Petitioner's argument that the PCR court's factual findings were based on a cursory interpretation of the same. While there are multiple conclusions that could have been drawn from Savitz's testimony, Petitioner's arguments take Savitz's statements out of context. For example, as to Savitz's testimony that the Gause issue was “a great issue[,]” and he would raise it now, Savitz stated, “I mean if I had to do it over again, I would probably raise it. You know [I] lost on the issue that I raised. You know, that's left a great issue we should have raised, but we didn't . . . prevail.” ECF No. 16-9 at 57. The PCR court deemed that testimony “a classic case of hindsight reasoning[,]” and the fuller context of the testimony, which Petitioner's argument omits, supports that assessment. As to appellate counsel's repeated assertion that he had no strategic reason for not raising the Gause issue, that is not particularly relevant as neither Strickland nor any other Supreme Court case that Petitioner has identified requires counsel have a strategic reason for every action or inaction-counsel are called to exercise reasonable judgment. Strickland, 466 U.S. at 690 (“A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.”).

Petitioner also argues the PCR court erred in considering whether the Gause issue was a stronger issue than the one appellate counsel raised, as opposed to whether it was a winning issue. ECF No. 104 at 47-48. However, evaluating the relative strength of the appellate issues that were raised and the issues that were not raised is consistent with federal law. As stated by the United States Supreme Court, “‘[w]innowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751 (1983)). Furthermore, “‘[g]enerally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.'” Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (quoting Smith v. Robbins, 528 U.S. 259, 288 (2000)). The undersigned cannot say that the PCR court's decision is contrary to, or reflects an unreasonable application of, federal law where the PCR court expressly relied upon and applied the Supreme Court's decision in Smith in evaluating whether the Gause issue was stronger than the issue that was raised in Petitioner's direct appeal. Based on the foregoing, the court cannot say that the PCR court unreasonably concluded that Petitioner failed to demonstrate deficiency by appellate counsel.

As outlined above, Petitioner has failed to demonstrate that the PCR court's rejection of Ground Four was either the result of unreasonable factual findings or an unreasonable application of federal law. As such, he has failed to meet his burden under § 2254. The undersigned recommends that the court grant Respondents' motion for summary judgment with respect to Ground Four.

E. Ground Five

In Ground Five, Petitioner alleges the State violated Brady ¹⁰ by failing to disclose that Gause had information regarding Petitioner's case. ECF No. 1 at 19. Respondents argue this ground is procedurally defaulted as it was raised to and ruled upon by the PCR court but was not subsequently raised in Petitioner's PCR appeal. Petitioner admits as much in his response in opposition to the motion for summary judgment. See ECF No. 104 at 48 n.17. However, Petitioner has not attempted to overcome the procedural default by either articulating cause and prejudice for his failure to properly raise this claim in his PCR appeal or any miscarriage of justice that will result if his Brady claim is not considered. The fact that this ground is procedurally defaulted bars its consideration in this habeas action. Accordingly, it is recommended that Respondents' motion for summary judgment as to Ground Five be granted.

10 Brady v. Maryland, 373 U.S. 83 (1963).

F. Ground Six

In Ground Six, Petitioner raises another Brady violation-this one concerns evidence from Tietjen's computer that was not provided to Petitioner's defense team. Although this claim was properly considered and raised in Petitioner's PCR appeal, Respondents assert that Petitioner is not entitled to habeas relief because the PCR court reasonably denied this ground.

1. Brady Standard

“A Brady violation occurs when the government fails to disclose evidence materially favorable to the accused.” Youngblood v. West Virginia, 547 U.S. 867, 869 (2006) (per curiam). Evidence is material if a reasonable probability exists “that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id. at 870 (quoting Strickler v. Greene, 527 U.S. 263, 280 (1999)). However, a showing of materiality requires a “showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). The assessment of materiality is made in light of the entire record. United State v. Argus, 427 U.S. 97, 112 (1976).

2. Evidence Before the PCR Court

In the days following his crime spree, Petitioner made multiple statements in which he recalled seeing pornography on Tietjen's computer. See ECF No. 16-12 at 126-29. These statements, which Petitioner made to law enforcement and to Dr. Pamela Crawford, a forensic psychiatrist,¹¹ are generally consistent. According to Petitioner, he and Tietjen talked at length. At some point during their conversation, Tietjen stated he wished he was young like Petitioner because he liked young girls. The two also discussed pornography. After killing Tietjen, Petitioner got on Tietjen's computer and saw pornography, including a sexually graphic picture of a young girl and a horse. See ECF No. 16-12 at 126-29. In his statement to Dr. Crawford, Petitioner recalled doing “something” to Tietjen's eyes although he could not recall exactly what he had done. ECF No. 16-11 at 189-90. Evidence presented at Petitioner's sentencing proceeding showed that Petitioner burned Tietjen's eyes with a cigarette post-mortem. ECF No. 16-1 at 119 (“[H]e had burns on both eyes as though a cigarette or something been put out in the eye ....”). Petitioner also left a note, which stated, “‘No more sick computer porn for this sick fucker. By the way, just keeping my promise to all. P.S. good luck finding me.' . . . LMFAO.” ECF No. 16-3 at 28.

11 The entirety of Petitioner's statement to Dr. Crawford can be found at ECF No. 16-11 at 87-202 and ECF No. 16-12 at 13-24.

In October 2004, David Givens, an agent with the South Carolina Law Enforcement Division (“SLED”), performed a search of Tietjen's computer, which he described during the PCR evidentiary hearing. Agent Givens had specifically been asked to look for evidence that Tietjen and Petitioner had contact prior to the murder and for child or bestiality pornography on Tietjen's computer. ECF No. 16-7 at 215- 16, 200. In his search, Agent Givens looked through the image gallery of Tietjen's computer and catalogued the internet search history. ECF No. 16-7 at 216-22. That information, and much more, was included on a disk, but it is not clear if that disk was provided to the SLED agent coordinating the investigation into Petitioner's crimes. ECF No. 16-7 at 224-25. During his search, Agent Givens noted he “[l]ocated adult porn and temporary internet files. No child or bestiality photos located. Located several pornographic movies within the program files.” ECF No. 16-7 at 231. The catalogued internet search history of Tietjen's computer also showed websites that appeared pornographic in nature were accessed in September 2004. ECF No. 16-7 at 240-50. Tietjen's computer also accessed pornographic websites the day before his murder.¹² ECF No. 16-7 at 250-57; ECF No. 16-8 at 1-8, 18-19. It is undisputed that neither the State nor the defense were provided with Agent Givens's notes or the disk he created, which showed that Tietjen's computer contained pornography and had accessed pornographic websites.

12 According to Agent Givens, Tietjen's computer clock was thirteen hours fast. Thus, websites that were accessed the morning of Tietjen's murder according to the computer's clock, were actually accessed the night before. ECF No. 16-7 at 257; ECF No. 16-8 at 1-8, 18-19.

Babb, Howle, and Clark all confirmed that they never received evidence that Tietjen's computer contained or accessed pornography. ECF No. 16-8 at 50-53, 134-36, 147-50. Howle testified that such evidence “may have” changed how the defense team operated at trial. ECF No. 16-8 at 53. According to Howle, he and Babb had talked “at length [about] looking for something that may have triggered the reaction whether it was an argument or whatever led up to the shooting itself.” ECF No. 16-8 at 53; see also ECF No. 16-8 at 75. Based on the evidence trial counsel had received, they focused on another argument¹³ as the trigger, but “[i]f we had had this, would we have looked more into Mr. Tietjen saying something about it or him seeing something in the computer, we may have been more apt to follow up on that.” ECF No. 16-8 at 54. Howle admitted, “[I]t might be a little harder to argue that that's the triggering factor on it's own. But we would have certainly gone through this and just seen how detailed it was and what effect it may have had.” ECF No. 16-8 at 54.

13 Tietjen was a member of a Masonic Lodge, and Petitioner's statements indicated that he and Tietjen had spoken about the Masons. There was some evidence that an argument over the Masons led to the murder.

Babb testified that he requested and received funding for a forensic computer expert who could assist in interpreting whatever results were received from SLED's computer analysis. ECF No. 16-8 at 136-37. Of course, trial counsel never received any results that showed pornography on Tietjen's computer. Babb testified:

[I]t's kind of hard to say what you would do with something you have not seen. . . . [A]t a minimum, I would have talked to Mr. Bryant about that for a couple of reasons. I wanted to make sure it did mesh.... Two, because it may refresh or change his memory in some respects.

ECF No. 16-8 at 140. Babb further testified that he would have shared the information with Dr. Schwartz-Watts and Margaret Melikian, another psychiatrist on the defense team. ECF No. 16-8 at 141. Babb indicated that he would have looked for a more specialized expert in the area of sexual trauma had he received the pornography evidence-“[T]his sexual thing works. I mean, you have got three bodies. Everybody's pants is unzipped. You've got a client who has had sexual trauma. He doesn't make a lot of sense when you talk with him. I mean there is something going on.” ECF No. 16-8 at 151.

When Clark testified, he indicated that Howle had primarily handled the mitigation case, and he echoed the sentiment that “it's hard to say” how trial counsel would have used the information about pornography on the Tietjen computer. ECF No. 16-9 at 24, 36.

At the PCR evidentiary hearing, Dr. Schwartz-Watts testified that she “begged for” corroboration of Petitioner's statements about the Tietjen murder and pornography. ECF No. 169 at 68. Dr. Schwartz-Watts explained, “I felt like there wasn't a lot of evidence to corroborate Mr. Bryant's sexual abuse.... So it's one of those cases where I felt like the more evidence that corroborated the things he told me, the more believable it would have been for the court.” ECF No. 16-9 at 68. Dr. Schwartz-Watts also opined the pornography “explained the mutilation of Mr. Tietjen'[s] body.... I think it clearly explains the things [that] were particularly heinous about this crime.” ECF No. 16-9 at 69. When asked how the pornography was relevant, Dr. Schwartz-Watts testified:

It's very relevant that again, all of these crimes, Your Honor, in my opinion had some sexual motivation to them. In each of these instances he told me that he felt threatened by the victim in some way, shape or form....

And so the fact that before the crime he states that they were talking about pornography, sex with younger children and that sort of thing. But the victim was saying that that was something he enjoyed that was a trigger for him. ....

[T]o me the computer, it just verified, it gave some credibility to his accounts. And then in my opinion it certainly explained the mutilation of his body.

ECF No. 16-9 at 70-71. Later, Dr. Schwartz-Watts testified that she had relied upon Petitioner's statements about pornography on Tietjen's computer to explain the mutilation of Tietjen's eyes, but Dr. Schwartz-Watts stated, “[I]n my opinion, I mean to have the evidence there would have been a lot more supportive of my opinion. I think it really opened me up on cross.” ECF No. 16-9 at 92.

3. The PCR Court's Determination

The PCR court found Petitioner failed to meet his burden of demonstrating the materiality prong of Brady-that is, he failed to show a reasonable probability that the result of the proceeding would have been different had the State disclosed the complete report by Agent Givens. ECF No. 16-12 at 134-36. The PCR court began by noting that “the existence or non-existence of internet porn on the computer was not a ‘trigger' to the death of Mr. Tietjen” as “it [was] uncontested in the statements and the evidence presented that [Petitioner] did not claim to have viewed any images on the victim's computer until after he had killed Mr. Tietjen.” ECF No. 16-12 at 134 (emphasis in original). Additionally, the evidence did not corroborate Petitioner's statements about seeing bestiality images on Tietjen's computer. ECF No. 16-12 at 134. The PCR court found:

[T]o the extent the mere existence of prior internet browsing the previous day by someone on Tietjen's computer other than Applicant corroborates his version is difficult to connect. It merely supports that Mr. Tietjen may have had discussions with Applicant about it. However, it is as likely that Applicant, with knowledge of temporary internet files, could have browsed those histories himself after the death when he claimed to have turned on the computer.

ECF No. 16-12 at 134.

The PCR court next considered the impact of the pornography evidence on Dr. Schwartz-Watts's testimony. The PCR court noted that Dr. Schwartz-Watts had knowledge of the pornography on Tietjen's computer and of the discussions between Petitioner and Tietjen about pornography by way of Petitioner's previous statements and her own interview with him. ECF No. 16-12 at 135. The PCR court reasoned that had Dr. Schwartz-Watts received the information from Agent Givens, she would have learned there were no bestiality images found on the computer. ECF No. 16-12 at 135. Ultimately, the PCR court concluded, “It is difficult to know how this additional information would have impacted the assessment by Dr. Watts but she did indicate that the additional information would have corroborated her conclusions.” ECF No. 16-12 at 135.

The PCR court then considered how the Tietjen computer evidence could have impacted trial counsel's choices and presentation. To the extent Howle and Babb had testified that the evidence could have been connected to the “trigger” for Petitioner's murder of Tietjen, the PCR court found such testimony “ignore[d] that the so-called trigger would only have happened after the death.” ECF No. 16-12 at 135. The PCR court further noted that, as to the prosecution's challenges of the lack of corroboration for the mitigation case, the focus was on the lack of “corroboration about the child sexual abuse[; the prosecutor] did not challenge any lack of corroboration about the pornography ....” ECF No. 16-12 at 135. The PCR court further found that Babb's testimony “ignore[d] that the computer assessment does not fully corroborate Applicant's version because it did not support the existence of either child pornography or bestiality-matters that were not challenged before Judge Russo.” ECF No. 16-12 at 136.

The PCR court acknowledged Petitioner's claim that the Tietjen computer evidence may have triggered the post-mortem mutilation of Tietjen's eyes but found “this theory was fully presented within his statements to Dr. Crawford and was given to the defense and their experts.” ECF No. 16-12 at 136. The PCR court concluded that the Tietjen computer evidence should have been provided to the State and the defense team prior to trial, but “[t]he fact of the presence on the computer of some images, but not the particular images he had described of child pornography or bestiality and their non-disclosure does not mandate a new sentencing proceeding under Brady.” ECF No. 16-12 at 136.

The PCR court summarized its findings as follows:

As represented by Applicant, the triggering event in the victim's death, according to Applicant's statements went to the discussion about the Masons and his reaction to the assault. The pornography issue then and now was a two-edge sword, reflecting his presence at the scene, yet his alleged disgust at pornography was disputed by his own history on the internet according to a prior girlfriend. The mental health experts were aware of his statements to the police and to them

concerning the effect the discussion with Tietjen he claimed to have had and how it affected his actions. The malicious actions of Applicant on Mr. Tietjen and his family, in the face of the other admitted murders and assaults, are not changed by the mere presence of images or browsing history on Mr. Tietjen's computer. Applicant has failed to show a reasonable probability that had the images been disclosed that the result of the proceeding would have been different and resulted in a life sentence.

ECF No. 16-12 at 136.

4. Analysis

The operative issue for this claim is whether the Tietjen computer evidence was material- whether there is a reasonable probability that the evidence would have changed the result. See Strickler v. Greene, 527 U.S. 263, 281 (1999) (“[S]trictly speaking, there is never a real ‘Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.”).

Petitioner argues it was an unreasonable determination of the facts for the PCR court to find “it ‘difficult to connect' the ‘mere existence of prior Internet browsing the previous day by someone on Tietjen's computer' as corroborative of Bryant's statement.” ECF No. 37 at 57 (quoting ECF No. 16-12 at 134). According to Petitioner, the existence of pornography on Tietjen's computer “fully corroborated” his statement that he viewed porn on Tietjen's computer. ECF No. 37 at 57. However, as the PCR court found, the computer evidence corroborated Petitioner's general statement that he viewed pornography on Tietjen's computer, but it did not corroborate the specifics of his statement-that he saw bestiality and child pornography on the computer-facts which he consistently reported. See ECF No. 16-12 at 134, 136. The undersigned cannot say the PCR court's conclusion was unreasonable based on the evidence presented at the PCR evidentiary hearing.

Certainly, the fact that the evidence partially corroborated Petitioner's statement was of some arguable benefit, but that only establishes that the evidence was favorable in accordance with Brady. The PCR court found that the corroboration would not have changed the outcome of the case and, thus, was not material under Brady. Petitioner further asserts that the fact that Petitioner was correct about there being pornography on Tietjen's computer lent credibility to his allegations of childhood sexual abuse. See ECF No. 104 at 50. Both allegations-that Tietjen's computer had pornography on it, which Petitioner saw, and that Petitioner was sexually abused by multiple family members as a child-have a sexual component, but the truth of one allegation is not determinative of the truth of the other, contrary to Petitioner's suggestion. Petitioner overstates the strength of that evidence. Additionally, while the PCR court did not decide this exact issue, the PCR court noted that there was no evidence to support the contention that the pornography on Tietjen's computer served as a trigger for the murder itself, an issue which was raised in the PCR proceedings, but which Petitioner is no longer pursuing. ECF No. 16-12 at 135-36. To the extent Petitioner offered that the pornography had triggered his post-mortem mutilation of Tietjen's eyes, the PCR court found that theory had been presented through his statements to Dr. Crawford. And indeed, the fact that Petitioner burned Tietjen's eyes with cigarettes after seeing pornography on his computer was presented by trial counsel. The order of dismissal indicates that the marginal impact additional corroboration would have had on the case as a whole did not rise to the level of materiality. This court cannot say that conclusion was either based on unreasonable factual findings or was contrary to, or an unreasonable application of, Brady.¹⁴

14 Petitioner asserts that the undisclosed evidence “would have powerfully negated the solicitor's closing argument.” ECF No. 104 at 51. Petitioner has not connected this particular argument to allegations of unreasonable factual findings or application of law by the PCR court. Nevertheless, the court briefly considers whether this angle would have affected the materiality analysis. When read in full, the solicitor's closing argument chronologically detailed Petitioner's crimes with an emphasis on the idea that Petitioner was in control during his crime spree; he was methodically casing rural homes and committing burglaries and was strategically committing murders with robbery in mind, not as a result of feeling threatened. See ECF No. 16-5 at 17-39. Petitioner believes the Tietjen computer evidence could have rebutted or prevented some of the solicitor's arguments. ECF No. 104 at 51. The only statement Petitioner references that appears to directly relate to the Tietjen computer evidence is the solicitor's statement that, following the murder of Tietjen, “[Petitioner] got on their computer and began to visit porn sites by his choosing, not sites from T.J. and Mildred.” ECF No. 16-5 at 32. The evidence arguably contradicted that statement as Tietjen's computer had accessed pornography sites prior to Petitioner getting on the computer. At the same time, there was no evidence of any internet sites being accessed when Petitioner was present in the victim's home, and one possible explanation was that Petitioner had deleted his search history. In any event, that particular statement referenced the computer pornography, but it was not otherwise a focus of the solicitor's argument, so it is doubtful that a rebuttal would have been impactful. The other statements Petitioner references-that Petitioner's “conduct was not ‘impulsive behavior' and had ‘[n]othing to do with trauma from sex abuse'” and that Petitioner “was a ‘pathological liar'”-were even more attenuated from the undisclosed evidence. Petitioner's assertion that the Tietjen computer evidence could have rebutted or prevented such statements is dubious. But even if it could, the impact would have been nominal. The thrust of the solicitor's closing argument would not have been altered by the fact that Tietjen's computer contained and had accessed pornography prior to Petitioner being in the home.

Finally, Petitioner argues it was “non-sensical” for the PCR court to find the Tietjen evidence to be “a two-edge sword, reflecting his presence at the scene, yet his alleged disgust at pornography was disputed by his own history on the internet according to a prior girlfriend.” See ECF No. 16-12 at 136. The PCR court addressed this issue in its order denying Petitioner's Rule 59(e) motion and clarified, “The Court was merely noting that the existence of porn benefited both the State's case and the Defense's case because it placed the Applicant at the scene and was a potential trigger for his actions.” ECF No. 16-12 at 158. The undersigned cannot say the PCR court's finding was unreasonable, particularly in light of the PCR court's later clarification.

The Tietjen computer evidence could have been used either to benefit the State or the defense had it been properly disclosed. However, the PCR court was concerned with whether the undisclosed evidence could have reasonably affected the outcome and found it could not have. Petitioner has failed to demonstrate that that determination resulted from unreasonable factual findings or an unreasonable application of law. As such, it is recommended that Respondents' motion for summary judgment be granted as to Ground Six.

G. Ground Seven

The remainder of Petitioner's claims were not raised in either Petitioner's direct appeal or in his first PCR action.

In Ground Seven of the petition, Petitioner asserts that he is intellectually disabled, and his execution is barred by Atkins v. Virginia, 536 U.S. 304 (2002). ECF No. 27 at 73-76. Petitioner has since admitted that he cannot meet the diagnostic criteria for intellectual disability. ECF No. 104 at 52. But he claims to suffer from fetal alcohol spectrum disorder (“FASD”), and, according to Petitioner, “per . . . expert evaluations, [FASD] impairs him in a manner that, in every meaningful regard, is indistinguishable from intellectual disability.” ECF No. 104 at 52-53. Respondents contend that this ground is procedurally defaulted.

1. How this Issue Was Raised in State Court

Petitioner first asserted intellectual disability in his federal habeas corpus petition in this court in April 2016. ECF No. 27 at 73-76. Contemporaneously, he filed a post-conviction relief action (“second PCR”)¹⁵ in state court asserting the same claim. ECF No. 89-38 at 27-32 (C/A No. 2016-CP-43-828).

15 At that time, Petitioner also filed a separate PCR action (“third PCR”) asserting additional claims of ineffective assistance of counsel. ECF No. 89-2 (C/A No. 2016-CP-43-829).

In state court, the State filed a return and motion to dismiss, asserting that Petitioner's second PCR action was both time-barred and successive. ECF No. 89-38 at 36-49. Judge Cooper denied the motion to dismiss because Petitioner's claim was authorized by S.C. Code Ann. § 17-27-20(A)(1) and Franklin v. Maynard, 588 S.E.2d 604 (S.C. 2003), a case allowing prisoners who had been sentenced to death prior to Atkins to file a second PCR action, if needed, to raise an Atkins claim. Judge Cooper noted that:

Franklin . . . did not expressly address the situation where a defendant is sentenced to death after Atkins but does not discover he suffers from Intellectual Disabilities until after the conclusion of his post-conviction relief action. The natural extension of Franklin, however, allows this action to proceed, and if Mr. Bryant [sic] Intellectual Disabilities “is proven, the PCR court will vacate the death sentence and impose a life sentence.”

ECF No. 89-37 at 114 (quoting Franklin, 588 S.E.2d at 606).

Petitioner later moved to amend his application to include a claim that he suffers from FASD and that “[a] categorical ban on imposing the death penalty on people suffering from FASD is a natural extension of Hall and Atkins . . . .” ECF No. 89-39 at 95-103. The motion was denied. ECF No. 89-37 at 136-43. After full briefing and an evidentiary hearing,¹⁶ Judge Seals denied and dismissed Petitioner's second PCR application, finding Petitioner failed to show he was exempt from capital punishment under Atkins. ECF No. 89-37 at 146-59; ECF No. 89-38 at 1-24. Judge Seals found the FASD claim was both untimely and improperly successive. ECF No. 89-38 at 23.

16 During the hearing Petitioner moved to amend his application to conform to the evidence presented-specifically, to include an allegation that he suffers from FASD and his impairments were equivalent to or greater than impairments in individuals who are intellectually disabled. Judge Seals denied that motion. ECF No. 89-38 at 22-23.

Petitioner filed a motion for reconsideration under Rule 59(e), SCRCP. ECF No. 89-39 at 164-68. That motion was denied. ECF No. 89-38 at 25-26.

Petitioner and the State appealed. ECF Nos. 89-44, 89-45. Both petitions were denied by the South Carolina Supreme Court. ECF No. 89-52. Petitioner filed a petition for rehearing, which was denied by the court on June 15, 2021. ECF No. 89-54.

2. Intellectual Disability Claim

With regard to the intellectual disability claim raised in the petition, Petitioner now admits that, due to his scores on intelligence testing, he cannot meet the diagnostic criteria for intellectual disability. ECF No. 104 at 52. The state court also concluded that Petitioner did not meet his evidentiary burden of proving intellectual disability during the evidentiary hearing in Petitioner's second PCR action. ECF No. 89-38 at 21. Petitioner did not appeal that finding in his petition for writ of certiorari. See ECF No. 89-46 at 2-3. Accordingly, Petitioner's claim that he is intellectually disabled and, thus, his execution is barred by Atkins, is procedurally defaulted. Petitioner has failed to show cause or prejudice for the default, nor has he articulated any fundamental miscarriage of justice that will occur if this claim is not considered.

3. FASD Claim

Petitioner also claims that he suffers from FASD and that he should be exempt from execution based on a logical extension of Atkins. Petitioner tried multiple times to amend his application in his second PCR action to include his FASD claim, but the state court found the claim both time-barred and successive. Respondents assert that Petitioner's FASD claim is procedurally barred here. However, Petitioner argues that the state court's finding of procedural default is not an independent and adequate state ground.

As the Fourth Circuit has explained:

The doctrine of procedural default provides that “a federal habeas court may not review constitutional claims when a state court has declined to consider their merits on the basis of an adequate and independent state procedural rule.” Burket v. Angelone, 208 F.3d 172, 183 (4th Cir. 2000). A state procedural rule is adequate if it is regularly or consistently applied by the state courts, Johnson v. Mississippi, 486 U.S. 578, 587 (1988), and it is independent if it does not depend on a federal constitutional ruling, Ake v. Oklahoma, 470 U.S. 68, 75 (1985).

McNeill v. Polk, 476 F.3d 206, 211 (4th Cir. 2007).

Petitioner first argues that the state court's conclusion that his FASD claim was procedurally defaulted was not independent because it was based on an interpretation of a federal constitutional ruling. ECF No. 104 at 60. Specifically, Petitioner asserts “[t]he PCR court's conclusion that Mr. Bryant's amended claim was ‘new,' and thus successive to the Eighth Amendment challenge it had already authorized, was premised upon the Court's analysis of what the Eighth Amendment forbids, per Atkins.” Id. Further, Petitioner argues “the PCR court's rationales for allowing Mr. Bryant's initial Eighth Amendment claim to proceed all turn on that federal constitutional question, and apply with equal force to its amendment.” ECF No. 104 at 61. The undersigned disagrees.

While the underlying claim was certainly dependent on federal law, the application of the procedural bar-that is, whether the proposed claim was the same as the limited claim that had been authorized to proceed-was not. As stated by the PCR court, “[a]ll claims other than the claim that Applicant is diagnosed with intellectual disability, (i.e., mental retardation), and exempt under Atkins v. Virginia, may not be heard.” ECF No. 89-37 at 140. The PCR court did not have to interpret Atkins at all in comparing the claims. It was sufficient that Petitioner was alleging he had FASD, not intellectual disability. Furthermore, the PCR court found that Petitioner had “candidly admit[ted] he [was] attempting to raise a new claim, i.e., an extension of the Atkins exemption to cover a new condition not otherwise recognized as an exemption.” ECF No. 89-37 at 140-41. The procedural bar applied by the PCR court was not dependent on federal law.

Petitioner further argues that the procedural bar applied in his case was not regularly or consistently applied. However, the law contradicts Petitioner's position. First, statutory law in South Carolina indicates that untimely and successive PCR applications are not allowed. Under S.C. Code Ann. § 17-27-45, a petitioner must file his PCR application within one year after his judgment or conviction becomes final. And S.C. Code Ann. § 17-27-90 generally prohibits successive PCR applications although it does allow for such applications when “the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended application.” There have been limited exceptions recognized to the broad rule that successive PCR applications are disallowed;¹⁷ however, the South Carolina Supreme Court has declined to expand the rule, preferring to limit the consideration of successive application to “only the very rarest of exceptions . . . .” Aice v. State, 409 S.E.2d 392, 394 (S.C. 1991). Additionally, this court has previously recognized the state procedural bar against time-barred and successive PCR applications as one that is regularly applied in South Carolina. See Fields v. Stevens, Civil Action No. 0:13-2679-TMC, 2014 WL 3728163, at *7 (D.S.C. July 25, 2014) (adopting report and recommendation where a ground raised in a successive and time-barred PCR application was found to be procedurally defaulted) (citing Hutto v. South Carolina, C/A No. 0:08-2188-TLW-PJG, 2009 WL 2983018, at *6 (D.S.C. Sept. 14, 2009) (adopting report and recommendation finding claims dismissed by the PCR court as untimely and successive were procedurally barred); Scott v. Bazzle, C/A Nos. 8:05-2690-GRA-BHH, 8:06-2730-GRA-BHH, 2007 WL 2891541, at *5 (D.S.C. Sept. 28, 2007) (adopting report and recommendation and noting that the “South Carolina statute of limitations for PCR applications” is an independent and adequate state ground “which acted as a procedural bar to the petitioner's claims)). Petitioner's arguments that the state procedural bar is not adequate are unavailing.

17 In a recent per curiam opinion, the South Carolina Supreme Court reversed the lower court's dismissal of an Atkins claim as untimely and successive. See Woods v. State, App. Case No. 2019001713, 2019 WL 6898088 (S.C. Dec. 18, 2019) (per curiam). The South Carolina Supreme Court stated:

Because there is a possibility the Constitution categorically bars Petitioner's execution, we hold the successive PCR application in this case is permissible because of extraordinary circumstances. See e.g., Robertson v. State, 795 S.E.2d 29, 35 (2016) (allowing a successive PCR application where PCR counsel was not statutorily qualified to represent the applicant); Washington v. State, 478 S.E.2d 833, 835 (1996) (permitting a successive PCR application where multiple procedural irregularities, including the denial of a direct appeal, denied applicant to the benefit of due process); Gamble v. State, 379 S.E.2d 118, 119 (1989) (allowing a successive PCR application where the applicant unknowingly withdrew his first PCR application with prejudice); Carter v. State, 362 S.E.2d 20, 21-22 (1987) (authorizing a successive PCR application where the applicant did not have PCR counsel that differed from his trial counsel); Case v. State, 289 S.E.2d 413, 414 (1982) (allowing a successive PCR application where the applicant's first PCR application was dismissed without the assistance of legal counsel and without a hearing).

Woods, 2019 WL 6898088, at *1. As a per curiam opinion, Woods has no precedential value, but it suggests that Atkins's categorical bar to the execution of intellectually disabled persons has created one of the rare exceptions for which successive applications will be allowed.

Petitioner questions why his intellectual disability claim was permitted while his FASD claim was deemed successive and untimely (as were all other claims he attempted to raise in his second and third PCR actions). See ECF No. 104 at 62 (“The PCR court's initial flexibility makes its later inflexibility inexplicable and establishes the inadequacy of its decision in preventing federal review.”). The difference is obvious. Atkins created a categorical bar for executing prisoners who are intellectually disabled. No such bar exists for those who suffer from FASD. See Garza v. Shinn, No. CV-14-01901-PHX-SRB, 2021 WL 5850883, at *105 (D. Ariz. Dec. 9, 2021) (“There is no authority holding that individuals with FASD are exempt from capital punishment.”). The fact that claims of intellectual disability for death-sentenced prisoners appear to be one of the “rarest of exceptions” to the procedural bar of successive and untimely PCR applications in South Carolina does not render the procedural bar inadequate or not independent.

Regardless of whether Petitioner is asserting that he is exempt from the death penalty because he is intellectually disabled or because he has FASD, his claim is procedurally barred. Petitioner has further failed to show that he can overcome the default based on cause and prejudice or some miscarriage of justice. Accordingly, Respondents' motion for summary judgment on Ground Seven should be granted.

H. Grounds Eight and Nine

In Ground Eight, Petitioner argues that trial counsel were ineffective for failing to conduct an adequate investigation into Petitioner's background, history, character, and mental illness. He likewise believes trial counsel failed to provide the available information to the defense team's mental health experts, and they failed to adequately present the evidence during the mitigation presentation. In Ground Nine, Petitioner alleges that trial counsel and post-conviction relief counsel labored under a conflict of interest.

These grounds were raised in Petitioner's third PCR action but were found to be both successive and time-barred. ECF Nos. 89-2, 89-6, 89-8. Petitioner appealed the order of dismissal, but his appeal was dismissed because he “failed to show there [was] an arguable basis for asserting that the determination by the lower court was improper.” ECF No. 89-15; see also ECF Nos. 8910, 89-11. As discussed above, the state court's application of a procedural bar to Petitioner's successive and untimely PCR action is an adequate and independent state procedural rule, which renders Grounds Eight and Nine procedurally defaulted and barred from consideration in this action.

Petitioner argues that the procedural default of Grounds Eight and Nine should be excused pursuant to Martinez v. Ryan, 566 U.S. 1 (2012). In Martinez, the United States Supreme Court held that “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” 566 U.S. at 9. In order to assess PCR counsel's performance, the court uses the ineffective assistance of counsel standards set by Strickland. Under those standards, counsel is presumed to have provided reasonable representation, and it is incumbent on the petitioner to rebut that presumption. Strickland, 466 U.S. at 689 (“[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ....”).

Here, Petitioner has offered very little to rebut the presumption as to PCR counsel's performance. Generally, he asks for an evidentiary hearing in order to “prove, as a threshold matter that his initial PCR counsel performed deficiently in failing to develop and present these claims.” ECF No. 104 at 71. However, he fails to allege facts to support his contention that PCR counsel's investigation or presentation was deficient. “It should go without saying that the absence of evidence cannot overcome the ‘strong presumption that counsel's conduct [fell] within the wide range of professional assistance.'” Burt v. Titlow, 571 U.S. 12, 22-23 (2013) (quoting Strickland, 466 U.S. at 689); see Runningeagle v. Ryan, 825 F.3d 970, 984 (9th Cir. 2016) (“Given the ‘highly deferential' standard under which we evaluate [collateral counsel's] performance, and the paucity of evidence that [collateral counsel] performed deficiently-which [the petitioner] had a full opportunity to develop . . .-[the petitioner] fails to overcome the ‘strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'” (quoting Strickland, 466 U.S. at 689)). Petitioner's conclusory allegations are not sufficient to meet his burden.

The only other information Petitioner offers regarding PCR counsel's performance is his belief that PCR counsel labored under a conflict of interest. In accordance with Supreme Court precedent, “the possibility of a conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance.” Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). In order to show ineffective assistance of counsel based on a conflict of interest, a petitioner must “show[] that his counsel actively represented conflicting interests . . . .” Id. With that in mind, the undersigned turns to Petitioner's claim that PCR counsel was conflicted, which he explains as follows:

[A] prosecution witness at [Petitioner's] sentencing, Barbara Cusso Ryan, was then married to James Hugh Ryan, III, who, at the time of Mr. Bryant's arrest was an Assistant Public Defender in Sumter County, from 2005 to 2007 was an Assistant Solicitor in Sumter County, and at the time of Mr. Bryant's sentencing hearing was the “Deputy Director and General Counsel for the South Carolina Commission on Indigent Defense with oversight responsibility for funding capital cases.” . . . Mr. Bryant allege[s] that he was denied the right to an initial, conflict-free postconviction relief hearing . . . because Mr. Ryan “personally selected Mr. Bryant's [initial] post-conviction relief counsel ....”

ECF No. 104 at 64. Boiled down, Petitioner alleges that PCR counsel had a conflict of interest because the person who appointed them to Petitioner's case was married to a witness for the State at the time of his sentencing proceeding, and that same man also worked for the Public Defender's Office and the Solicitor's Office at the time of Petitioner's arrest and pre-trial matters. There is no contention that Ryan was ever involved in Petitioner's case. It is unclear how those facts establish that PCR counsel had an actual conflict of interest. There are no obvious actively conflicting interests there, and Petitioner has not offered any additional explanation as to what those could be. The facts offered by Petitioner are a far cry from even “the possibility of a conflict” that the Supreme Court warns against. He has not met his burden under Martinez.

Under Strickland, PCR counsel is presumed to have provided constitutionally reasonable representation. Petitioner has failed to offer anything to create even a question of whether he can rebut that presumption. Because he has failed to meet his Martinez burden, the procedural default of his Grounds Eight and Nine stands. Accordingly, the undersigned recommends that Respondents' motion for summary judgment as to these grounds be granted.

I. Request for Further Briefing or an Evidentiary Hearing

Petitioner has requested further briefing on some issues and for an evidentiary hearing on others, but he offers no indications as to what additional information could be offered in such briefing or in a hearing or how such information would impact the analysis of this court. Petitioner has been given time here and in state court to investigate the matters he has raised in his petition, and this court has granted Petitioner's many requests for extensions of time to complete his briefing. See ECF Nos. 95, 99, 101, 103. Petitioner has been given ample opportunity to raise and brief his claims to this court. There is no indication that further briefing or a hearing could enable Petitioner to prove his allegations, and his requests for further briefing and an evidentiary hearing are, thus, denied. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“In deciding whether to grant an evidentiary hearing, a federal court must consider whether such a hearing could enable an applicant to prove the petition's allegations, which, if true, would entitle the applicant to federal habeas relief.”).

J. Certificate of Appealability

Rule 11(a) of the Rules Governing § 2254 Proceedings provides that the district court “must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” A certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). An applicant satisfies this standard by establishing that reasonable jurists would find that the district court's assessment of the constitutional claims is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). Here, Petitioner does not meet this standard because there is nothing debatable about the court's resolution of his petition. As such, the undersigned recommends denying the certificate of appealability.

IV. CONCLUSION

For the reasons set forth above, it is RECOMMENDED that Respondents' Motion for Summary Judgment (ECF No. 91) be GRANTED and the Petition for writ of habeas corpus be DENIED.

The parties are directed to the next page for their rights to file objections to this recommendation.

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk

United States District Court

Post Office Box 835

Charleston, South Carolina 29402

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).