Opinion
C/A No.: 6:18-2417-SAL-KFM
04-07-2020
Kevin Gilliard, Petitioner, v. Warden Joyner, Respondent.
REPORT OF MAGISTRATE JUDGE
The petitioner, a state prisoner proceeding pro se and in forma pauperis, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.), this magistrate judge is authorized to review post-trial petitions for relief and submit findings and recommendations to the district court.
I. BACKGROUND
The petitioner is currently incarcerated at the Lee Correctional Institution in the South Carolina Department of Corrections ("SCDC"). He was indicted by the Anderson County Grand Jury in July 2009 for possession of marijuana with intent to distribute (2009-GS-04-1736) and a dual indictment for trafficking crack cocaine between 28 and 100 grams and possession of a weapon during the commission of a violent crime (2009-GS-04-01737). The marijuana and weapon possession charges were dismissed just prior to trial (app. 5, 35-38). After his first attorney, Kurt Tavernier, was conflicted out of the case, the petitioner was represented by Andrew Potter ("trial counsel"). On December 7-9, 2009, the petitioner proceeded to jury trial before the Honorable J. Cordell Maddox, Jr. (app. 1). Assistant Solicitor Rame Campbell represented the State. The jury found the petitioner guilty of trafficking crack cocaine between 28 and 100 grams (app. 168). Judge Maddox sentenced the petitioner to 25 years imprisonment with credit for time served and issued a fine of $50,000 (app. 173-74).
A. Underlying Case Facts
On April 19, 2009, Deputy Surratt of the Anderson County Sheriff's Office initiated a traffic stop on a silver Pontiac Grand Am that he saw run a stop sign (Tr. 65-66). During the stop, Deputy Surratt testified that he smelled a strong odor of marijuana (app. 67-68). The traffic stop occurred at the corner of Brown and Market Streets (app. 83). The driver of the vehicle was Demetrius Robertson, who was found to be driving under suspension (app. 67). The petitioner was seated in the passenger seat holding a partially smoked marijuana cigarette. During a quick pat-down of the petitioner and Robertson, Deputy Surratt felt a small bulge in the petitioner's pocket, which was a small bag of marijuana (app. 68-69). Surratt took the two men into custody, and the vehicle was searched. As a result of the search, law enforcement officers recovered 2.9 grams of cocaine base ("crack"), approximately half of a pound of marijuana, scales, and a .45 caliber pistol (app. 35-36). The petitioner was arrested and transported to the Anderson County Detention Center (app. 71).
The petitioner was booked by Deputy Lunz, a jailer at the Anderson County Detention Center (app. 97). The booking room was equipped with surveillance cameras. The petitioner was searched in the booking room by Deputy Lunz. Deputy Surratt was standing behind Deputy Lunz during the search. Deputy Surratt testified that the petitioner did not want to move his legs apart for the search when asked. When Deputy Lunz pushed the petitioner's legs apart with his foot, a clear baggie containing 49 grams of crack cocaine fell out of the petitioner's pants leg. Deputy Surratt confiscated the baggie. A videotape was made of the search, and Deputy Surratt requested that a copy be made of the tape; however, it was later inadvertently recorded over prior to a copy being created (app. 40-41, 73-80, 99-101, 106, 122, 233-34).
As noted above, the petitioner was initially indicted by an Anderson County Grand Jury for possession of marijuana with intent to distribute, trafficking crack cocaine between 28 and 100 grams, and possession of a weapon during the commission of a violent crime (app. 5). However, immediately prior to the petitioner's trial, the petitioner's co-defendant, Robertson, admitted possession and ownership to the pistol, the half of a pound of marijuana, and the 2.9 grams of crack cocaine found inside the vehicle. Accordingly, the corresponding charges against the petitioner were dropped prior to opening statements (app. 35-38), and the trial proceeded only on the petitioner's charge for trafficking in crack cocaine (app. 46), with regard to the crack cocaine found during the search of the petitioner when he was booked into the detention center.
During pretrial motions, the petitioner's counsel asked for a spoliation instruction to the jury regarding the destruction of the videotape of the search of the petitioner in the booking room. The petitioner's counsel argued that the petitioner should be entitled to an exculpatory inference of the destroyed evidence (app. 39-40). The State informed the trial court that they had both the arresting officer and the booking officer (Deputies Surratt and Lunz) available to testify as to what they witnessed concerning the baggie of crack cocaine being discovered during the booking pat-down and that there was no law requiring the recording of such procedure; for those reasons, the State argued that a spoliation charge would be inappropriate (app. 41-42).The trial court denied the request at that time but allowed the petitioner to question witnesses regarding the missing videotape and reasons for its absence (app. 43) The petitioner renewed his request twice at the end of the trial. The trial judge denied the requests, stating that he was not going to instruct the jury regarding the videotape and noting that the petitioner's arguments were protected on the record (app. 136, 167).
At the petitioner's trial, Deputy Surratt testified that the baggie of crack cocaine was not discovered during the traffic stop, because he did not have another officer present to allow him the time to conduct a thorough search, but merely a search for weapons for safety purposes (app. 75-76). Deputy Surratt testified on direct examination that he did not "plant" the baggie of crack cocaine on the petitioner (app. 79). On cross-examination, Deputy Surratt testified as to the process for acquiring an arrest warrant (app. 81) and that the warrant for the petitioner's arrest stated that "the drugs were found during a lawful traffic stop" (app. 82). Deputy Surratt agreed with defense counsel that the drugs were not found "on the traffic stop on the side of the road"; rather, the drugs were discovered "during a lawful traffic stop," because the drugs were found during the booking process (app. 82-83). Deputy Surratt admitted that his incident report contained a mistake in which he stated that the drugs were found in the petitioner's pants while Deputy Surratt was conducting the traffic stop (app. 87). In his case summary, Deputy Surratt referred to the evidence as being found in a "search incident to arrest," which Deputy Surratt testified extended to evidence found during the booking process (app. 88-90). Trial counsel also cross-examined Sergeant John Clamp, supervisor of the evidence division, on the fact that the evidence form indicated that the evidence was found at the traffic stop at Brown and Market Streets (app. 117, 120).
B. Direct Appeal
Attorney Tristan Shaffer filed and perfected an appeal of the conviction on behalf of the petitioner, raising the following issue: "Whether the trial court erred in refusing to instruct the jury that when material evidence is destroyed by the State, the jury may infer that evidence would have been a favorable to Appellant?" (doc. 27-2). The South Carolina Court of Appeals affirmed the conviction by unpublished opinion, State v. Gilliard, No. 2012-UP-351, filed June 13, 2012 (doc. 27-3). The petitioner sought a writ of certiorari from the South Carolina Supreme Court, which was denied by order dated July 15, 2015 (doc. 27-4).
C. PCR
On September 1, 2015, the petitioner filed an application for post-conviction relief ("PCR") (app. 177-82). In the section for "the grounds on which you base your allegation that you are being held in custody unlawfully," the petitioner stated, "Applicant reserved the right to amend his application at a late date" (app. 179). The State filed its return on May 23, 2016 (app. 184-87). On October 25, 2016, the day of his PCR evidentiary hearing, the petitioner filed a handwritten three-page document raising the following allegations:
1. Conflict of Interest:
a. Applicant's state appointed lawyer (Kurt Tavernier) was a conflict of interest at the time of Applicant's prelim. hearing
b. Trial counsel and initial counsel Kurt Tavernier both worked for the public defenders office and utilized the same services
2. Preliminary Hearing
a. The State failed to comply with Applicants timely request for a prelim
3. Ineffective Assistance of Counsel:
a. Failed to adequately investigate
b. Failed to conduct adequate pre-trial investigations
c. Failed to seek suppression of evidence found in Applicants hand and pocket as a result of traffic stop
d. Failed to investigate potential defense
e. Failed to interview defense witness made known by Applicant
f. Failed to ask for a Franks hearing or challenge validity of arrest warrant
g. Failed to bring issue to tribunal that Applicant made him aware of the fact that he was denied a preliminary hearing and he still wanted one.
h. For allowing evidence of uncharged offenses to be admitted at trial
I. For failing to protect Applicants right to a fair trial by allowing uncharged evidence to be admitted
j. For allowing Applicant to be tried and convicted on indictment other than indictment found by grand jury
4. Prosecutorial Misconduct
a. Solicitor's evidence during pre-trial
b. Solicitors prejudicial opening remarks and closing arguments
c. Unethical tactics in maintain conviction
5. Judicial Misconduct
(App. 248-50).a. Pointing at attorneys
The October 25, 2016, evidentiary hearing was conducted before the Honorable Letitia H. Verdin. All allegations of ineffective assistance of counsel were restricted to claims concerning Mr. Potter, as the petitioner had failed to properly give notice of any allegation against Mr. Tavernier (app. 198-99). Judge Verdin filed an order of dismissal on January 3, 2017, finding that the petitioner failed to carry his burden of proving any of his claims for relief (app. 251-61).
D. PCR Appeal
The petitioner, who was represented by attorney John H. Strom, filed a Johnson petition for writ of certiorari in the South Carolina Supreme Court (doc. 27-5). The petition raised a single issue for consideration and requested that Mr. Strom be relieved as counsel: "The PCR court erred in finding that trial counsel provided effective assistance of counsel where trial counsel's professed trial strategy for not suppressing evidence of Petitioner's uncharged possession of marijuana was not objectively reasonable" (id. at 1). The Supreme Court issued its Johnson letter to the petitioner instructing him to file within 45 days any and all claims he wished to raise in his PCR appeal (doc. 27-6). The petitioner did not file a pro se response. Certiorari was initially granted, but on July 15, 2015, the South Carolina Supreme Court dismissed it as improvidently granted (doc. 27-4). The South Carolina Supreme Court filed an order denying certiorari and granting counsel's request to withdraw on June 14, 2018 (doc. 27-7). The remittitur was issued on July 2, 2018, and filed with the Anderson County Clerk of Court on July 5, 2018 (doc. 27-8).
See Johnson v. State, 364 S.E.2d 201 (1988) (setting forth the procedures for counsel to follow when filing meritless appeals in state PCR cases pursuant to Anders v. California, 386 U.S. 738 (1967)).
E. Federal Petition
On August 31, 2018, the petitioner filed a Section 2254 petition (doc. 1). In his initial petition, he answered question 12, which asks for the grounds for relief and supporting facts, by referring the court to an attachment consisting of copies of prior state court documents. As it was unclear what ground or grounds the petitioner was presenting, the court issued proper form orders on September 7 and October 3, 2018, directing the petitioner to answer question 12 with specific grounds and to answer question 18 regarding the timeliness of the petition (docs. 6, 9). On October 19, 2018, the petitioner brought his petition into proper form (see doc. 14), raising the following grounds for relief (verbatim):
Ground One: In violation of Sixth Amendment right to effective assistance of Counsel.
Supporting Facts: Trial Counsel was ineffective for failing to challenge the lack of preliminary hearing in this case where Petitioner was denied his guaranteed 6th Amendment right to counsel during a critical stage, where Petitioner's initial State appointed counsel, Kurt Tavernier, who was found to be a conflict of interest three weeks prior to trial, due to the fact he was the prosecuting attorney in Petitioner's 2001 conviction for distribution of marijuana, one of the convictions used to enhance Petitioner's current conviction for trafficking, was also a conflict at the time of Petitioner's preliminary hearing,
Ground Two: In violation of Sixth Amendment right to effective assistance of Counsel.
Supporting Facts: Trial counsel was ineffective for failing to effectively challenge the veracity or constitutionality of the arresting officer's evidence in obtaining the arrest warrant in this case.
Ground Three: In violation of Sixth Amendment right to effective assistance of Counsel.
Supporting Facts: Trial counsel was ineffective for failing to seek a pre-trial suppression hearing to exclude from trial evidence seized in violation of Fourth Amendment's prohibitions against unreasonable search and seizures, where the arresting officer in this case used false and misleading evidence before magistrate in obtaining arrest warrant where officer swore to magistrate that he found drugs on Petitioner at the scene of a traffic stop that occurred on the corner of Brown Street and Market Street, but none of the testimony collaborated this evidence at trial.
Ground Four: In violation of Sixth Amendment right to effective assistance of Counsel.
Supporting Facts: Trial counsel was ineffective for failing to raise meritorious Fourth Amendment claim that crack cocaine evidence was improperly seized pursuant to an unlawful seizure based on the arresting officer's misconduct in obtaining the arrest warrant in this case.
Ground Five: In violation of Sixth Amendment right to effective assistance of Counsel.
Supporting Facts: Trial counsel's professed trial strategy for not suppressing evidence of Petitioner's uncharged possession of marijuana was objectively unreasonable and constitutes ineffective assistance fo counsel.
Ground Six: In violation of Sixth Amendment right to effective assistance of Counsel.
Supporting Facts: Trial counsel's belief that there was no basis for a successful motion to squash or dismiss the indictment was unreasonable in light of the facts and evidence in this case.
Ground Seven: In violation of Sixth Amendment right to effective assistance of Counsel.
Supporting Facts: Trial counsel was ineffective for failing to protect Petitioner's Sixth Amendment right to a fair trial by failing to object and challenge the admissibility of evidence of Petitioner's uncharged possession of marijuana.
Ground Eight: In violation of Sixth Amendment right to effective assistance of Counsel.
Supporting Facts: Trial counsel's failure to investigate and call to trial witnesses on Petitioner's behalf constitutes ineffective assistance of counsel.(Doc. 1-3 at 5-23).
Ground Nine: In violation of Sixth Amendment right to effective assistance of Counsel.
Supporting Facts: Trial counsel's inflammatory comment concerning the videotape that "he didn't think the videotape was destroyed in bad faith" was unreasonable and highly prejudicial to Petitioner's defense.
Ground Ten: Denial of Due Process
Supporting Facts: Whether the trial court erred in refusing to instruct the jury that when material evidence is destroyed by the State, the jury may infer that evidence would have been favorable to Petitioner, particularly in such a case as this where there was ample reasonable doubt on the question of Petitioner's guilt in the case.
Ground Eleven: Denial of Due Process
Supporting Facts: Arrest warrant affidavit for trafficking charge contained false and misleading statements, in violation of Fourth Amendment's prohibition against unreasonable seizures where arresting officer swore to magistrate judge that he found drugs on Petitioner at the scene of a traffic stop which occurred on the corner of Brown Street and Market Street, but none of the testimony collaborated the evidence of trial.
Ground Twelve: Prosecutorial Misconduct
Supporting Facts: The prosecutor's usage of evidence of Petitioner's uncharged possession of marijuana prior to trial and at trial, by such one experienced prosecutor, was unreasonable, unethical and unduly prejudicial.
On March 4, 2019, the respondent filed a motion for summary judgment and a return (docs. 27, 28). On March 5, 2019, by order filed pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975), the petitioner was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion (doc. 29). On April 22 and 29, 2019, the petitioner filed motions to amend his petition (docs. 35, 42). On May 6, 2019, the respondent filed a response in opposition to the motions to amend (doc. 43). After being granted two extensions of time through July 5, 2019, the petitioner had not filed a response to the motion for summary judgment. Accordingly, on July 8, 2018, this court issued an order giving the petitioner through July 29, 2019, to file his response and advising him of the consequences if he failed to respond (doc. 48). He did not timely respond. On August 5, 2019, the court denied the petitioner's motions to amend and gave him a final extension of time through August 26, 2019, to file his response to the motion for summary judgment (doc. 50). On August 8, 2019, the petitioner filed a response in opposition (doc. 54), in which he also moved for summary judgment (doc. 53). The respondent filed a reply to the petitioner's response to the motion for summary judgment on August 15, 2019 (doc. 56). The reply included a response to the petitioner's motion for summary judgment.
On October 31, 2019, this court issued an order (doc. 57) explaining that, when service on the respondent was authorized in this case on October 31, 2018, the court inadvertently attached the petitioner's original petition (see doc. 15-1), rather than the amended petition the petitioner submitted in compliance with the court's proper form orders. The petition that should have been served on the respondent is the amended petition submitted by the petitioner on October 19, 2018 (doc. 1-3). Thus, when the respondent filed his original return and motion for summary judgment, the respondent understandably addressed the grounds raised in the original petition, as this was the petition that was served on the respondent (see doc. 15-1; doc. 27 at 6-7). As the appropriate petition for consideration in this case is the amended petition (doc. 1-3), the undersigned directed the respondent to file an amended return and amended motion for summary judgment addressing the issues raised by the petitioner in his amended petition (doc. 57).
On November 21, 2019, the respondent filed an amended return and amended motion for summary judgment (docs. 58, 59). On the same date, by order filed pursuant to Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975), the petitioner was advised of the summary judgment procedure and the possible consequences if he failed to adequately respond to the motion (doc. 60). On December 9, 2019, the petitioner filed a motion to stay (doc. 62). The respondent filed a response in opposition on December 19, 2019 (doc. 63). On December 20, 2019, the court denied the motion to stay and gave the petitioner through January 6, 2020, to file his response to the amended motion for summary judgment (doc. 65). On December 26, 2019, the undersigned entered an order finding the respondent's original motion for summary judgment moot based upon the filing of the amended motion (doc. 67).
On January 17, 2020, the undersigned filed a report and recommendation that the petitioner's motion for summary judgment be denied (doc. 77). The Honorable Sherri A. Lydon, United States District Judge, adopted that recommendation on March 2, 2020 (doc. 81).
On January 2, 2020, the petitioner filed a motion for reconsideration of the order denying his motion to stay along with another motion for extension of time to file a response to the respondent's amended motion for summary judgment (docs. 69, 70). On January 17, 2020, the undersigned denied the motion to reconsider and granted the motion for extension of time in part, extending the time for the petitioner's response to the amended motion for summary judgment to February 7, 2020 (doc. 78). In that order, the undersigned noted that the petitioner had previously filed a 54-page response to the respondent's original motion for summary judgment, and, in that response, the petitioner addressed the same grounds for relief at issue in the respondent's amended motion for summary judgment (id. at 3). The petitioner has failed to file any response to the respondent's amended motion for summary judgment. Accordingly, the undersigned will consider the arguments raised by the petitioner in his response in opposition to the original motion for summary judgment (see doc. 54) as also made in opposition to the amended motion for summary judgment.
II. APPLICABLE LAW AND ANALYSIS
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). As to the first of these determinations, a fact is deemed "material" if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is "genuine" if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Id.
B. Section 2254 Standard
Because the petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997). Under the AEDPA, federal courts may not grant habeas corpus relief on any claim that was adjudicated on the merits in state court unless the underlying state adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or28 U.S.C. § 2254(d). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 411 (2000). Moreover, federal habeas review requires presuming state court factual determinations to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
C. Exhaustion and Timeliness
The respondent acknowledges that the petitioner has technically exhausted his state court remedies and that the petition is timely (doc. 58 at 7-8, 10).
D. Procedural Default
The respondent argues that, with the exception of Ground Five, the petitioner's grounds for habeas review in the amended petition are procedurally defaulted (doc. 58 at 12-15; see doc. 1-3). Procedural default, sometimes referred to as procedural bar or procedural bypass, is the doctrine applied when a petitioner seeks habeas corpus relief on an issue after he has failed to raise that issue at the appropriate time in state courts and has no further means of bringing that issue before the state courts. Coleman v. Thompson, 501 U.S. 722, 785 n.1 (1991). In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Id.; see Smith v. Murray, 477 U.S. 527, 533 (1986).
Default can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion. If a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the Supreme Court has explained:
[State procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984).
1. Grounds One, Two, Three, Four, Six, Eight, and Nine
As argued by the respondent, these grounds for relief were not raised in the PCR appeal. As noted above, the Johnson petition raised only one issue, and that issue was raised by the petitioner in his amended petition here as Ground Five (doc. 27-5; see doc. 1-3 at 12). The Supreme Court also provided the petitioner with an opportunity to provide a pro se response to raise and argue any issues he believed the court should consider in the PCR appeal (doc. 27-6), but the petitioner did not file any response. Accordingly, these grounds for relief are procedurally barred.
2. Ground Seven
In Ground Seven, the petitioner alleges that his trial counsel was ineffective for failing to object and challenge the admissibility of evidence of the uncharged possession of marijuana. As this ground for relief is quite similar to the ground for relief raised in the petitioner's PCR appeal (Ground Five), it will be addressed on the merits below.
3. Ground Ten
Ground Ten challenges the trial court's conclusion that a spoliation instruction was not appropriate with regard to the destruction of the videotape of the search of the petitioner when he was booked into the detention center, during which the baggie containing crack cocaine fell out of the petitioner's pants leg. This ground was the only issue raised in the direct appeal (doc. 27-3). As argued by the respondent, this claim is a challenge to the court's application of the South Carolina Rule of Evidence, and, as such, it is not cognizable for federal habeas review. Relief in a federal habeas action is only available to petitioners in "custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Issues of state law are generally not cognizable in habeas review. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.") (citations omitted). Evidentiary rulings are generally considered state law matters. Spencer v. Murray, 5 F.3d 758, 763 (4th Cir. 1993) ("It has been settled in this circuit for years that a claim about the admissibility of evidence under state law rarely is a claim upon which federal habeas corpus relief can be granted."). Evidentiary rulings will not be considered in federal habeas "'unless [the] erroneous evidentiary rulings were so extreme as to result in a denial of a constitutionally fair proceeding.'" Barbe v. McBride, 521 F.3d 443, 452 (4th Cir. 2008) (quoting Burket v. Angelone, 208 F.3d 172, 186 (4th Cir. 2000)). No such showing has been made here. Moreover, to the extent the petitioner seeks to couch this evidentiary claim as a violation of his right to due process, that argument was not presented to the state courts on direct appeal and is therefore procedurally defaulted. See Duncan v. Henry, 513 U.S. 364, 366 (1995) ("If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court.") (citation omitted).
4. Ground Eleven
In Ground Eleven, the petitioner alleges that he was denied due process because the arrest warrant affidavit for the trafficking charge contained false and misleading statements in violation of the Fourth Amendment's prohibition against unreasonable seizures, where the arresting officer swore that he found drugs on the petitioner at the scene of a traffic stop, which occurred on the corner of Brown and Market Streets, but the evidence at trial did not show this. As argued by the respondent, such a freestanding claim is not cognizable on federal habeas review. See Stone v. Powell, 428 U.S. 465, 481-82 (1976) (holding that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial"). Moreover, the claim was not raised in the direct appeal or in the PCR appeal, and thus, even if cognizable, the claim is procedurally defaulted.
5. Ground Twelve
In Ground Twelve, the petitioner alleges a claim of prosecutorial misconduct on the basis of the Solicitor's introduction of evidence of the petitioner's uncharged possession of marijuana. As argued by the respondent, this claim is not cognizable as it is, at its heart, a claim couched in the application of South Carolina Rules of Evidence and not a violation of federal law. As discussed above, issues of state law generally are not cognizable in habeas review. Estelle, 502 U.S. at 67-68. Further, even if cognizable, the petitioner did not raise this ground in the direct appeal or PCR appeal, and, therefore, it is procedurally defaulted.
E. Cause and Prejudice
"[A] federal court ordinarily may not consider claims that a petitioner failed to raise at the time and in the manner required under state law unless 'the prisoner demonstrates cause for the default and prejudice from the asserted error.'" Teleguz v. Pearson, 689 F.3d 322, 327 (4th Cir. 2012) (quoting House v. Bell, 547 U.S. 518, 536 (2006)). To show cause, a petitioner must "show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule," Murray v. Carrier, 477 U.S. 478, 488 (1986), or that "the factual or legal basis for the claim was not reasonably available to the claimant at the time of the state proceeding," Roach v. Angelone, 176 F.3d 210, 222 (4th Cir. 1999). Alternatively, the petitioner may "prove that failure to consider the claims will result in a fundamental miscarriage of justice." McCarver v. Lee, 221 F.3d 583, 588 (4th Cir. 2000) (citing Coleman, 501 U.S. at 750). A fundamental miscarriage of justice equates to the conviction of someone who is actually innocent. Murray, 477 U.S. at 496 (noting that "where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default"). However, "actual innocence" requires "factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998) (internal quotation marks and citation omitted).
In Martinez v. Ryan, 566 U.S. 1, 9 (2012), the United States Supreme Court carved out a "narrow exception" that modified the "unqualified statement in Coleman [501 U.S. at 754-55] that an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default." In Martinez, the Court
read Coleman as containing an exception, allowing a federal habeas court to find "cause," thereby excusing a defendant's procedural default, where (1) the claim of "ineffective assistance of trial counsel" was a "substantial" claim; (2) the "cause" consisted of there being "no counsel" or only "ineffective" counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the "initial" review proceeding in respect to the "ineffective-assistance-of-trial-counsel claim"; and (4) state law requires that an "ineffective assistance of trial counsel [claim] ... be raised in an initial-review collateral proceeding."Trevino v. Thaler, 569 U.S. 413, 423 (2013) (quoting Martinez, 566 U.S. at 14-18). The Court in Martinez also noted:
When faced with the question whether there is cause for an apparent default, a State may answer that the ineffective-assistance-of-trial-counsel claim is insubstantial,
i.e., it does not have any merit or that it is wholly without factual support, or that the attorney in the initial-review collateral proceeding did not perform below constitutional standards.566 U.S. at 15-16.
Procedural default is an affirmative defense that is waived if not raised by the respondent. Gray v. Netherland, 518 U.S. 152, 165-66 (1996). If the defense is raised, it is the petitioner's burden to then show cause and prejudice or actual innocence; if not raised by the petitioner, the court need not consider the defaulted claim. Kornahrens v. Evatt, 66 F.3d 1350, 1359 (4th Cir. 1995). The Fourth Circuit Court of Appeals has observed that although it is always tempting to discuss the merits as an alternative reason for a conclusion, once a court finds an issue to be procedurally barred, all discussion that follows is only dicta. Karsten v. Kaiser Found. Health Plan of the Mid-Atl. States, Inc., 36 F.3d 8, 11 (4th Cir. 1993).
The undersigned finds that the petitioner has failed to show cause for the default. In his response to the respondent's original motion for summary judgment, the petitioner argued that "trial counsel's ineffectiveness in not raising [these issues] at trial is cause for the procedural bar to [these claims]" (doc. 54 at 10-24). However, the ineffective assistance of trial counsel grounds discussed above are appropriate for PCR proceedings, but are defaulted here because they were not raised in the PCR appeal. To the extent the petitioner may argue that his appellate PCR counsel's failure to raise the procedurally defaulted grounds in the Johnson petition in the PCR appeal constitutes cause for the procedural default, such argument fails as "the Martinez exception does not extend to PCR appellate counsel." Neumon v. Cartledge, C.A. No. 8:14-CV-2556-RMG, 2015 WL 4607732, at *11 n.12 (D.S.C. July 31, 2015) (citing Crowe v. Cartledge, C.A. No. 9:13-CV-2391-DCN, 2014 WL 2990493 at *6 (D.S.C. July 2, 2014) ("[I]neffective assistance of PCR appellate counsel is not cause for a default."); Cross v. Stevenson, C.A. No. 1:11-CV-02874-RBH, 2013 WL 1207067 at *3 (D.S.C. Mar.25, 2013) ("Martinez, however, does not hold that the ineffective assistance of counsel in a PCR appeal establishes cause for a procedural default.")). See also Johnson v. Warden of Broad River Corr. Inst., No. 12-7270, 2013 WL 856731, at *1 (4th Cir. Mar. 8, 2013) ("Because Johnson alleges only ineffective assistance of appellate postconviction counsel, his allegations do not constitute cause for his failure to exhaust under the limited exception in Martinez.").
In the alternative, the petitioner must show a miscarriage of justice by showing that he is actually innocent. The court's review of the record does not support a showing of actual innocence.
Based upon the foregoing, the procedural bar applies to the foregoing claims. F. Merits of Grounds Five and Seven
In the discussion of the merits of Grounds Five and Seven in the amended motion for summary judgment, the respondent also addresses Ground Three, stating that all three grounds address the petitioner's trial counsel's failure to seek suppression of the marijuana found during the pat-down of the petitioner at the scene of the traffic stop (doc. 58 at 30-31). However, it appears to the undersigned that the allegations in Ground Three concern trial counsel's alleged ineffectiveness for failing to seek suppression of the crack cocaine found during the booking process, rather than to the marijuana found on the petitioner during the traffic stop. Accordingly, Ground Three is procedurally defaulted as it was not raised in the PCR appeal, as discussed above.
In Grounds Five and Seven, the petitioner essentially argues that his trial counsel was ineffective for failing to exclude testimony about the marijuana found in his pocket at the traffic stop, which the petitioner refers to as his "uncharged possession of marijuana" (doc. 1-3 at 12, 15). As noted above, this was the only issue raised in the PCR appeal (doc. 27-5 at 1).
The petitioner articulates Grounds Five as an ineffective assistance claim "for pursuing an objectively unreasonable trial strategy that did not seek to suppress [the] uncharged possession of marijuana" and Ground Seven as an ineffective assistance claim "for failing to challenge the admissibility of evidence of [the] uncharged possession of marijuana" (doc. 1-3 at ).
1. Ineffective Assistance of Trial Counsel
To be entitled to relief on an ineffective assistance claim, a petitioner must show that (1) trial counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that but for counsel's error, the result of that proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-94 (1984). Strickland does not guarantee perfect representation, only a "'reasonably competent attorney.'" Id. at 687 (quoting McMann v. Richardson, 397 U. S. 759, 770 (1970)). There is a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment in making all significant decisions in the case. Id. at 690. The review of ineffective assistance of counsel claims in federal habeas is not simply a new review of the merits; rather, habeas review is centered upon whether the state court decision was reasonable. See 28 U.S.C. § 2254(d). Additionally, each step in the review process requires deference—deference to counsel and deference to the state court that previously reviewed counsel's actions:
Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both "highly deferential," and when the two apply in tandem, review is "doubly" so. The Strickland standard is a general one, so the range of reasonable applications is substantial. Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.Harrington v. Richter, 562 U.S. 86, 104 (2011) (internal citations omitted).
2. PCR Court's Decision
The PCR court specifically considered the petitioner's allegation that trial counsel's representation was deficient for failing to exclude testimony about the marijuana found on the petitioner at the traffic stop (app. 258-59). The PCR court analyzed the claim under the appropriate standard set out in Strickland and concluded that the petitioner failed to show that his trial counsel's performance was deficient and also failed to show that he was prejudiced by his trial counsel's performance (app. 254-55, 259). The PCR court appropriately noted the strong presumption that counsel's conduct falls within the range of reasonable professional assistance (app. 259) and also noted that "'[c]ourts must be wary of second guessing counsel's trial tactics; and where counsel articulates a valid reason for employing such strategy, such conduct is not ineffective assistance of counsel'" (app. 258) (quoting Whitehead v. State, 417 S.E.2d 529 (S.C. 1992)).
The PCR court cited testimony from the PCR hearing that supported the finding that the petitioner had not met his burden of showing either deficient performance or prejudice (Tr. 259). Specifically, trial counsel "agreed part of his strategy was to highlight the search done of [the petitioner] at the traffic stop and the marijuana officers had found on [him] during the pat down in order to challenge the later discovery of the crack cocaine on [the petitioner] in the booking room" (app. 259). The PCR court determined that "trial counsel testified to a valid trial strategy in addressing and using this testimony to benefit his client" (app. 258). The PCR court also noted the petitioner's testimony in the PCR hearing in which he acknowledged that he was tried solely on the crack cocaine found in his possession in the booking room, and the State presented two witnesses (Deputies Surratt and Lunz) who observed the crack cocaine fall by the petitioner's foot in the booking room (app. 259).
3. Analysis
The PCR court's decision that the petitioner failed to prove either prong of Strickland is reasonable and is supported by the record. First, the PCR hearing testimony supports the PCR court's finding the petitioner failed to meet his burden to show that trial counsel was ineffective because his trial counsel pursued a valid trial strategy to highlight Deputy Surratt's failure to discover the crack cocaine during the first search of the petitioner so as to bring doubt upon how the crack cocaine was discovered during the second search in the booking room (app. 238-39). At the PCR hearing, the petitioner testified, "I can't dispute it - I did ha[ve] a dime bag of marijuana in my pocket, but I was never charged with this, and I do not feel like that was evidence that was presented to the Grand Jury to get me indicted for trafficking. What got me indicted for trafficking was the evidence in the car" (app. 208). He testified that he thought that if his trial counsel had moved to suppress the drugs that were found on his person at the traffic stop, he would not have been brought to trial at all (app. 214). He further testified that it was his marijuana in his hand and in his pocket when the deputy pulled the car over, and his co-defendant could not and did not take responsibility for that marijuana (app. 215-16). The petitioner acknowledged that, in addition to the trafficking in crack cocaine charge (based on the crack cocaine found during the booking process), he was originally charged with possession with intent to distribute marijuana and possession of a weapon during the commission of a violent crime based the marijuana and gun found in the car; however, his co-defendant took responsibility for the gun and that marijuana, and those charges were dismissed in a hearing immediately prior to trial (app. 214-15; see Tr. 36-39). Further, the petitioner's trial attorney was asked what his thoughts were at trial as to whether to object to the reference to the marijuana found on the petitioner during the traffic stop. Mr. Potter testified that he "was probably wanting to focus the jury more in regards . . . to try to trap and try to challenge the veracity of Officer Surratt, specifically, and the officers involved in the case" (app. 238). Mr. Potter testified that it was beneficial to his trial strategy to demonstrate that Deputy Surratt found drugs on the petitioner during the first pat down at the scene of the traffic stop, but he missed the baggie of crack cocaine for which the petitioner was on trial (app. 238-39).
Second, there is evidence to support the PCR court's finding that the petitioner failed to meet his burden to show prejudice. The petitioner's conviction and sentence arise from trafficking in crack cocaine, which was found during the booking search, and, as noted by the PCR judge, the State presented two witnesses who observed the crack cocaine fall by the petitioner's foot in the booking room (app 259). Therefore, suppression of evidence from the search and seizure performed during the traffic stop would be of no assistance to his defense. Consequently, the petitioner would not have avoided trial, as he seems to believe.
The petitioner has failed to demonstrate that the PCR court's rejection of this ineffective assistance of counsel ground for relief was "contrary to, or . . . an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or . . . a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d). Based upon the foregoing, summary judgment should be granted to the respondent on Grounds Five and Seven.
III. CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, IT IS RECOMMENDED that the respondent's amended motion for summary judgment (doc. 59) be granted and the petition be dismissed. IT IS SO RECOMMENDED.
s/ Kevin F. McDonald
United States Magistrate Judge April 7, 2020
Greenville, South Carolina
The petitioner's attention is directed to the important notice on the next page.
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
300 East Washington Street
Greenville, South Carolina 29601
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).