Opinion
Civil Action No. 6:18-106-RBH-KFM
12-18-2019
Farid Ahmad Mangal a/k/a Farid Ahmad Maugal, Petitioner, v. Warden, Perry Correctional Institution, Respondent.
REPORT OF MAGISTRATE JUDGE
The petitioner, a state prisoner, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Pursuant to the provisions of 28 U.S.C. § 636(b)(1), 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 Perry Correctional Institution in the South Carolina Department of Corrections (doc. 1 at 1). He was indicted by the Spartanburg County Grand Jury in August 2006 on charges of incest (06-GS-42-2830) and criminal sexual conduct ("CSC") with a minor in the first degree (06-GS-42-2831). The Grand Jury indicted him in October 2006 for a lewd act or attempt to commit a lewd act upon a child under 16 (06-GS-42-4217), and he was indicted in January 2007 for CSC with a minor in the second degree (06-GS-42-4869) (doc. 20-39). The petitioner was represented by Lawrence W. Crane on these charges. On March 12-15, 2007, the petitioner was tried before the Honorable J. Mark Hayes, and the jury found him guilty as charged (app. 1-533). On March 16, 2007, Judge Hayes imposed concurrent sentences of 30 years imprisonment for CSC with a minor in the first degree, 20 years imprisonment for CSC with a minor in the second degree, 15 years imprisonment for lewd act on a minor, and one year imprisonment for incest. Judge Hayes also ordered that the petitioner receive credit for time served (app. 534-55).
The appendix page numbers referenced herein are found in Case Management/Electronic Case Filing ("CM/ECF") document numbers 20-6, 20-7, and 20-8.
A. Trial in Underlying Case
The petitioner was found guilty of committing various acts of sexual misconduct against his biological daughter, spanning approximately six years and beginning when she was ten years old (see app. 531-32). The State called the victim as the first witness. She testified that when she was ten years old, the petitioner "told me that he was gonna explain what sex was to me and that he was gonna show me what ... I shouldn't allow other people to do to me." The petitioner sexually assaulted her and told her it would not happen again, but it happened again the next day (app. 10-14). The victim further testified that the petitioner told her that her mother would not believe her if she reported the incidents. Instead, it would embarrass her and the entire family. Several years later, he threatened to kill the whole family if she ever told anyone about the sexual assaults. Even when other people were in the room with them, he would grab and touch her on her breasts, legs, and "behind." He would also force her to bathe in front of him, and he would wash her (app. 14-15). The victim testified that the sexual abuse "happened many times over the six years" and only ended when she was 16 years old. She could not recall the specific number of times that the petitioner abused her, but she testified, "When it first started it was pretty much every single day I came home from school." He continued to assault her once or twice a week until she was in the middle of the tenth grade (app. 15-16). The victim testified that the house was more peaceful if the victim complied with his demands, and he would yell at her mother and her brothers when she did not. Also, he would call her mother a "whore" and call the victim's brother names such as "fat ass" and "bastard." She felt that she had to comply with his demands to prevent him from abusing them (app. 19-20).
The victim testified that although the petitioner did not fully penetrate her during many of the assaults because he was concerned that she might get pregnant, he fully penetrated her on several occasions. The first time he fully penetrated her occurred when she was 13 or 14 years old (app. 18-21). The victim testified that the last time that the petitioner abused her was on the night before her mother had neck surgery. She refused because her mother was in the next room. He punished her brothers the next day because she had rejected him (app. 28-29). The first person to whom she disclosed the abuse was her brother, Rashan. The victim testified:
My brother Rashan was the first person I told because after he went to bed that night that my dad had hit him, I went in there and I was very upset because he had come in there and called me a whore..... And I told Rashan I had something to tell him because ... I didn't feel it was fair that they had to live in misery because ... I felt like it was my fault. .... I didn't really tell him upright. He guessed ... what was going on. I mean it took him a while because I didn't want, I didn't want to tell him and my main reason for not wanting to tell him was because I didn't want my mom to find out. [M]y mom had had it hard enough. My mom's had a very hard life and my dad was never good to her, and I grew up watching that, and I didn't want to be another burden on her shoulders. And Rashan told me if I didn't tell her that he would.(App. 29-30). The victim told her mother the following day that the petitioner had been sexually abusing her for six years (app. 30-31).
On cross examination, the victim testified that the petitioner was very strict. He would take her straight home from school, where she had to do chores, she could not use the telephone, could not have friends over to the house, she could not go out, and she could not celebrate Christmas. Moreover, she was staying in the dining room at the time of the petitioner's arrest, and she did not like this. Also, the petitioner tried to arrange her marriage to a cousin. Although she denied that this was the reason she accused her father, she admitted that things got better after his arrest, and, within about four months after his arrest, she began smoking and drinking, and she had a college-age boyfriend (app. 61-65, 73). The victim confirmed that when she talked to counselors form the Children's Advocacy Center she did not tell them about getting suspended from school in November 2002 for having oral sex with another student (app. 66). The petitioner's trial counsel also questioned the victim about discrepancies between her family court testimony and her testimony at trial as to the time periods during which different types of sexual abuse occurred (app. 70-71).
The victim's brother, Rashan, testified that the petitioner "verbally and physically" abused the family and that he hit the victim with an extension cord. Also, he called her names, such as "slut and bitch and whore" (app. 92-93; 103). Rashan confirmed that his mother was working during the day during this time period and that the petitioner would usually pick up the victim after school. He confirmed that his sister reported the abuse to their mother (app. 95-97). He also testified:
I would see [the petitioner and [the victim] go in her room or maybe I . . . just didn't know where they were, and . . . couldn't find them. So, I'd go and I'd knock on the door, on his or her door . . . and I jiggled the door handle and it was locked. And I asked ... is anybody in there and he would answer. He said we're talking, just go away, and, you know, the door was locked. So, I didn't understand. You know, if he had something to yell at her about or say to her, he usually just did it out in the open.(App. 97-98). He explained that the victim and the petitioner would be behind closed doors for 20 or 30 minutes at a time. When they came out, she would be "visibly upset, crying, and she [would] just head to the bathroom." However, he never heard them fighting over anything. He saw this happen roughly 20 or 30 times over the years (app. 98). Further, the petitioner installed a keyed lock on his bedroom door around 2000 or 2001, and the State introduced photographs of the lock (app. 100, 107).
The State also presented the testimony of Wiley Garrett, a licensed independent social worker, who conducted two forensic interviews of the victim. He was qualified by the trial judge as an expert "in the area of forensic interviewing to give opinion testimony in that area" (app. 119-22). On direct examination by the State, he testified that one of his "ultimate purpose[s]" in conducting forensic interviews is to determine whether a child has made "a clear[,] consistent disclosure," and he confirmed that part of the process is "to determine whether there's fabrication" (app. 12-24). Garrett interviewed the victim twice in July 2004 at the Children's Advocacy Center in Spartanburg, South Carolina (app. 117, 125, 129). The victim—who was 16 years old at the time of the interview—disclosed to him that she had been sexually assaulted multiple times beginning at age ten and that this happened in her parents' bedroom (app. 125-26). Garrett testified that the victim's disclosure was a "clear, consistent, and compelling disclosure of sexual abuse" (app. 130). On cross examination, Garrett conceded that he had cases where 16 year old girls had lied about being sexually abused, and he did not speak to the petitioner about the allegations against him (app. 139-43). Garrett also testified that at the time he did his assessment, he had not been told by the victim or her mother that the victim had been suspended from school for allegedly engaging in oral sex with another student nor had he been told of other issues the victim had at school (app. 138-42).
Dr. Nancy Henderson, a board certified pediatrician whose practice focused on the diagnosis of child abuse, including sexual abuse, also testified for the State. The trial judge found her qualified as an expert "in the examination, diagnosis, and treatment of child sexual abuse" (app. 147-53). She performed a medical examination of the victim on July 9, 2004, which revealed an abnormality of the hymen, which she explained as follows:
A: And the way I would describe it, it's called a crescent shape hymen because it has - it appears like a crescent shape moon. Sometimes in the normal changing it can be called angular where it goes all the way around. But because it kind of stops at this point up here it's called a crescent shape.
And we label things like a clock. So this is twelve o'clock, six o'clock, three o'clock, and nine o'clock. And so, on her exam right, right at about eight o'clock, right at this point, right at this point here, the hymen tissue looked very, very normal until you get to this point, and she had mark narrowing at that point and then it resumed very normal to the, to the rest of her exam. And there was just a tiny bit of discharge, a thin white amount of discharge, which without doing cultures it's hard for me to make any kind of judgment of that. We didn't look too concerned just looking at it. But this was the finding that I had.
Q: What does narrowing at eight o'clock mean?
A: Typically the [hymeneal] tissue is pretty uniform, and pretty
consistent all the way around. So, when you see marked narrowing - now, it normally, in some children, you can see a lot of variations especially when you get to adolescence. There can be a lot of changes because they have a lot of estrogen around and that causes a lot of flexibility to the [hymeneal] tissue.(App. 158-59). Dr. Henderson further testified, "Based on the history that [the victim] shared with me and based on my examination I felt that it was consistent with a, that she had been abused" and that it was her opinion that the victim "was sexually abused" (app. 159).
But when you see where the [hymeneal] tissue is almost completely diminished at that one point, that's a sign of some type of penetration through the [hymeneal] tissue.
On cross examination, Dr. Henderson testified that her report did not indicate "consistent" with sexual abuse, but instead indicated "suspicious" of sexual abuse, because the report was based on the physical examination, but her testimony was based on the history the victim provided as well (app. 161-63). Dr. Henderson elaborated that "based on the history that Victim shared, and she denies any other kind of trauma to that area . . . my conclusion is . . . as I stated" (app. 163). When asked whether she based her testimony on possible untrue information from the victim, Dr. Henderson replied, "I based it on the information received by my patient, which is invaluable information any doctor receives when they are examining a patient" (app. 164). When asked whether she assumed that what the victim told her was true, Dr. Henderson responded, "Based on the way she shared it and all the information that she shared, yes" (app. 164).
Defense counsel called Dr. Medlock as an expert witness (app. 209-51). He was the Mangal family's treating physician for many years. He testified that a record from an examination on January 2, 2002, indicated that the victim's hymen was still intact, and it was his "interpretation" that "if [the hymen] is [intact], ... it would indicate there's not been sexual activity" and that "if the vagina had been penetrated [he] would expect the hymen to ... not be intact" (app. 227-28, 246-47; doc. 79). Dr. Medlock testified that the victim "denie[d] sexual activity" during a visit on October 20, 2003, and the victim's "[r]ectal examination reveal[ed] external examination was in normal limits" (app. 224). Dr. Medlock testified that a note dated September 30, 2004, in the victim's medical records, made by another physician in his practice, reflected that she suffered from "[post-traumatic] stress secondary to sexual abuse." He explained that this finding was "an impression or a presumptive diagnosis ... [taking] what the patient tells you, history, and then you do a physical examination. And from that you come to an impression or make a presumptive diagnosis" (app. 241-51). Dr. Medlock further testified that he had known the petitioner for years, the petitioner had done construction work for him, the petitioner had a good reputation, and he could not believe the petitioner "would be guilty of that sort of thing" (app. 226-227; doc. 79).
The victim's mother, Diane, was called by trial counsel as a defense witness (app. 253-54, 256). She testified on direct examination that the victim had never complained to her about sexual abuse before June 15, 2004, and she never saw anything that caused her to suspect that the victim was being abused (app. 266-67). She attributed any blood that she saw on the victim's underwear to the victim's menstrual cycle, since the victim had her first period at age nine (app. 267-68). Also, the petitioner went on a trip to Germany in January 2004 to visit his brothers. He was out of the country for four weeks, but the victim did not report alleged abuse in his absence (app. 268-69). Later, on direct examination, the victim's mother testified that her daughter told her on June 15, 2004, that the petitioner "had been molesting her since she was ten" (app. 276). She testified that when the petitioner was arrested, she gave the police a statement indicating the victim had disclosed the abuse to her but the victim stated she had not allowed penetration or oral sex (app. 276-79). During an examination as to precisely when the victim made this disclosure, the mother twice testified, "I am telling the truth in what I'm saying . . . that my child was violated" (app. 281). She testified that when she confronted the petitioner with what the victim had told her, the petitioner immediately denied abusing the victim and accused the victim of lying to "make trouble" (app. 291-92). The victim's mother testified that Garrett had asked her whether her children lie. The victim's mother testified that she told Garrett, "Sir, I believe everyone lies. I would say that my children are, are usually truthful . . . " (app. 284). She told Garrett that the only trouble the victim had gotten into at school was for drinking alcohol, and she did not report that the victim had been suspended from school for having oral sex with another student (app. 284-85). The victim's mother testified that the petitioner had a mole or freckle on the head of his penis, and not on the shaft, as the victim had testified. Also, trial counsel introduced into evidence the victim's mother's drawing of the petitioner's penis (app. 296-99).
Trial counsel requested that the court call the victim's mother "as an adverse witness for the Court . . . [b]ecause she is a 100 percent adversary to . . .our side of the case" (app. 253-54). The trial court denied the motion (app. 255).
The State's cross examination of the mother established that she had seen the petitioner slap, punch, and kick her children, as well as call them names, referring to the victim as "whore" and "slut," while he referred to his sons as "bastards." The victim's mother testified that she did not report this physical abuse because the petitioner "promised me if I ever had told anybody about what went on in our house, if I ever tried to stand up for my children as far as taking them [away] from the abuse . . . he would rather see their dead bodies laying out in front of him" (app. 307-08). She further testified that the petitioner physically abused her (app. 308-09). When asked whether she believed the victim when the victim told her about the abuse, the victim's mother stated, " Yes, ma'am, I did, and I still do." She was then asked why she believed the victim, and the victim's mother testified, "Because she's my child." The victim's mother continued, "She had . . . no reason to lie about something like that. . . . [I]f anybody could of seen the level of how distraught she was, the look in her eyes, the begging, please help me, that's why I believed her" (app. 314).
The petitioner testified in his own defense and denied the allegations of abuse (app. 369-72). He testified that he had discovered a boy in the victim's bedroom one night. This boy was someone that he did not want her to see, and that was why he made her sleep in the dining room (app. 343-54). On cross examination, he denied taking his children behind a closed door to discipline them. He admitted that he had installed an exterior "steel" lock on his bedroom door that required a key (app. 381-82). On redirect, he testified that he had installed the lock because his children would sneak into his room and steal money and cigarettes (app. 394).
The other witnesses for the defense were a records custodian (Leslie Mostile), the petitioner's former neighbor (Kevin Riddle), a detention center employee (Mike Ennis) who had inspected the petitioner's penis, the petitioner's former employer (Jim Brock) from his residential construction job, and a former client (Elizabeth Waddell) of the petitioner (app. 202-51, 402-61).
B. Direct Appeal
The petitioner timely served and filed a notice of appeal. He was represented by Assistant Appellate Defender LaNelle C. Durant. He filed a final brief of appellant on June 5, 2008, raising the following issue: "Did the trial judge err in failing to grant a mistrial after the State cross examined a witness for the defense on Appellant's prior DUI convictions as character evidence?" (doc. 20-12 at 6). The State filed a final brief of respondent on May 30, 2008 (doc. 20-13).
The Court of Appeals of South Carolina affirmed the petitioner's convictions and sentence on March 4, 2009 (doc. 20-14). The petitioner filed a timely petition for rehearing on March 19, 2009 (doc. 20-15). The Court of Appeals filed an order denying the petition on May 4, 2009 (doc. 20-16).
On June 3, 2009, the petitioner filed a petition for writ of certiorari. He presented the following issue to the Supreme Court of South Carolina: "Did the Court of Appeals err by affirming the trial court which denied a mistrial after the State cross examined a witness for the defense on Appellant's prior DUI convictions as character evidence?" (doc. 20-17). The State filed a return to petition for writ of certiorari on June 30, 2009 (doc. 20-18). On December 17, 2009, the Supreme Court of South Carolina filed an order denying certiorari (doc. 20-19). The Court of Appeals sent the remittitur to the Spartanburg County Clerk of Court on December 22, 2009 (doc. 20-20).
C. PCR
On January 6, 2010, the petitioner filed a pro se application for post conviction relief ("PCR") (2010-CP-42-0080), alleging the following grounds for relief:
1. Ineffective assistance of trial counsel, in that:
a. "Failure to preserve direct appeal issue,"
b. "Trial counsel failed to investigate [documentary] evidence and witnesses,"
c. "Trial counsel fail to make an additional object[ion] to the sufficiency of the curative charge or move for a mistrial;" and
(App. 557-62). The State filed its return on May 12, 2010 (app. 563-67).
2. Ineffective assistance of appellate counsel.
On April 4, 2011, the Honorable J. Derham Cole held an evidentiary hearing. The petitioner was present at the hearing, and he was represented by J. Falkner Wilkes. Assistant Attorney General Suzanne H. White represented the State. The petitioner testified on his own behalf at the hearing. He also presented testimony from trial counsel Crane (app. 568-623).
Judge Cole denied relief and dismissed the application with prejudice in an order of dismissal filed on January 10, 2012 (doc. 20-21). The order of dismissal addressed the petitioner's claims that (1) trial counsel was ineffective in failing to investigate additional evidence and witnesses for trial; (2) trial counsel was ineffective for failing to preserve an issue for appeal regarding the improper introduction of character evidence during Dr. Medlock's testimony, when counsel failed to also object to the judge's curative instructions; (3) trial counsel was ineffective for failing to effectively cross examine witnesses, particularly the victim; (4) trial counsel was ineffective for not objecting to several jurors with biases; and (5) appellate counsel was ineffective for failing to include sufficient matter in the designation of matter on appeal for the Court of Appeals to consider the issue presented (app. 616-22).
On January 20, 2012, the petitioner's PCR counsel filed a motion to alter or amend judgment, pursuant to Rule 59(e), SCRCP (app. 623-33). One of the issues raised in the motion was that the PCR court failed to make sufficient specific findings of fact or rulings of law on the issue of whether trial counsel was ineffective in failing to object to the testimony of Dr. Henderson as bolstering or vouching for the victim's veracity (app. 630-31). The State made a return to the motion on February 10, 2012 (app. 634-38). On July 9, 2012, Judge Cole denied the motion, finding that "[a]lthough Applicant alleges that the issues in the Motion were raised in the hearing, but not properly ruled upon by this Court, this Court finds that the issues were not presented to the Court in the application or in an amendment and no evidence from the Applicant was presented in support of these allegations" (app. 639-40).
D. PCR Appeal
In August 2012, the petitioner's PCR appellate counsel, John R. Ferguson, timely served and filed a notice of appeal. On January 23, 2013, counsel filed a petition for writ of certiorari, raising the following questions for review:
I. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO THE STATE'S BOLSTERING OF ITS WITNESSES?(Doc. 20-23). The State filed a return to the petition on April 21, 2013 (doc. 20-24), and the petitioner filed a reply on April 26, 2013 (doc. 20-25). On September 30, 2014, the Court of Appeals of South Carolina filed an order granting certiorari (doc. 20-26).
II. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO MOVE FOR A MISTRIAL IN RESPONSE TO THE STATE'S BOLSTERING OF ITS WITNESSES?
III. WAS TRIAL COUNSEL'S PERFORMANCE TAKEN AS A WHOLE DEFICIENT AND PREJUDICIAL TO APPELLANT?
IV. WAS THE POST-CONVICTION RELIEF COURT IN ERROR IN FINDING THAT THE BOLSTERING ISSUE WAS NOT RAISED?
V. WAS PCR COUNSEL INEFFECTIVE FOR NOT SUFFICIENTLY RAISING THE BOLSTERING ISSUE?
On January 21, 2015, the petitioner's counsel filed a brief of petitioner, presenting the following issues on certiorari;
I. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO THE STATE'S BOLSTERING OF ITS WITNESSES?(App. 641-52). The State filed a brief of respondent on April 24, 2015 (app. 653-72), and the petitioner filed a reply on May 1, 2015 (app. 673-79).
II. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO MOVE FOR A MISTRIAL IN RESPONSE TO THE STATE'S BOLSTERING OF ITS WITNESSES?
III. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO OBJECT TO THE QUALIFICATION OF A FORENSIC INTERVIEWER AS AN EXPERT?
IV. WAS TRIAL COUNSEL'S PERFORMANCE TAKEN AS A WHOLE DEFICIENT AND PREJUDICIAL TO APPELLANT?
V. WAS THE POST-CONVICTION RELIEF COURT IN ERROR IN FINDING THAT THE BOLSTERING ISSUE WAS NOT RAISED?
VI. WAS PCR COUNSEL INEFFECTIVE FOR NOT SUFFICIENTLY RAISING THE BOLSTERING ISSUE?
On December 30, 2015, the Court of Appeals filed a published opinion reversing the PCR court and granting relief (app. 680-88). See Mangal v. State, 781 S.E.2d 732 (S.C. Ct. App. 2015) ("Mangal I"), rev'd, 805 S.E.2d 568 (2017). With regard to the claim that trial counsel was ineffective for failing to object to improper bolstering testimony, the Court of Appeals found that, as it related to Dr. Henderson's testimony, the PCR judge "erred in finding the bolstering issue was not raised because PCR counsel questioned trial counsel on the subject, and PCR counsel raised the issue again in his Rule 59(e), SCRCP, motion." Id. at 735. However, the court found that any bolstering issues "related to other witnesses" were "unpreserved." Id. at 735-36. The Court of Appeals further found that Dr. Henderson's testimony improperly bolstered the victim's credibility such that trial counsel's failure to object constituted deficient performance, and the petitioner was prejudiced by counsel's error as "the case lacked physical evidence and hinged on credibility." Id. at 737 (citations omitted).
The State filed a petition for rehearing on January 11, 2016 (app. 689-705). On January 20, 2016, the petitioner filed a response to the State's petition (app. 706-09). The Court of Appeals denied rehearing on February 22, 2016 (app. 710).
On April 11, 2016, the State filed a petition for writ of certiorari, raising the following issue:
Did the court of appeals err in reversing the PCR judge's finding that counsel was not ineffective for failing to object or move for a mistrial in response to bolstering testimony given by Dr. Henderson where the PCR judge never made such a ruling and where the court of appeals considered testimony that was not raised at the evidentiary hearing or in the motion to alter or amend?(Doc. 20-27). On May 4, 2016, the Solicitor's Association of South Carolina submitted a brief of amicus curiae (doc. 20-28). On June 16, 2016, the Supreme Court of South Carolina filed an order granting certiorari to review the Court of Appeals' decision. The order provided that "[t]he parties shall proceed to serve and file the appendix and briefs as provided by Rule 242(i), SCACR" (doc. 20-29). John R. Ferguson and C. Rauch Wise represented the petitioner, as the respondent, in the Suprem e Court of South Carolina.
On July 18, 2016, the State filed a brief of petitioner, presenting the following issues for review:
I. Whether the Court of Appeals err[ed] in reversing the PCR judge's finding that counsel was not ineffective for failing to object or move for a mistrial in response to alleged bolstering testimony where the PCR judge never made such a finding and where the court considered testimony that was not raised at the PCR hearing or in Respondent's motion to alter or amend.
A. Whether the Court of Appeals erred in finding that the bolstering issue was preserved with respect to any of Dr. Henderson's testimony.
(Doc. 20-30).B. Whether, even if this Court finds the bolstering issue was preserved, it was only preserved to the extent it was raised to the PCR judge, and in making its finding that counsel was ineffective, the Court of Appeals was not entitled to consider any other portion of Dr. Henderson's testimony.
C. Whether the Court of Appeals erred in finding counsel was ineffective for not objecting to alleged bolstering where Dr. Henderson's direct examination testimony did not constitute bolstering, counsel had a valid trial strategy in eliciting her testimony on cross-examination in an attempt to further discredit Victim, and there is no reasonable probability that the outcome would have been different had counsel objected.
The South Carolina Network of Children's Advocacy Centers and the University of South Carolina Children's Law Center were permitted to participate as amicus curiae and filed a brief in support of the petitioner state of South Carolina, which the Supreme Court of South Carolina received on July 18, 2016 (doc. 20-31). The petitioner filed a brief of respondent on September 28, 2016 (doc. 20-32), and the State filed a reply on October 11, 2016 (doc. 20-33).
Following briefing and oral arguments by the parties and the amicus curiae, the Supreme Court reversed the Court of Appeal's judgment and reinstated the PCR judge's order denying PCR. See Mangal v. State, 805 S.E.2d 568, 576 (2017) ("Mangal II"). The Supreme Court found that the PCR court acted within its discretion in refusing to address the improper bolstering regarding Dr. Henderson and further found that this was "not an appropriate case to excuse Mangal from his procedural default." Id. at 571-75. The remittitur was issued on October 20, 2017, and was filed on October 23, 2017 (doc. 20-38).
The court filed its initial opinion on July 19, 2017, but that opinion was withdrawn, substituted, and refiled on October 4, 2017. Mangal II, 805 S.E.2d at 568.
II. FEDERAL PROCEEDINGS
A. Petition
On January 8, 2018 (doc. 1-4), the petitioner, proceeding pro se, filed a Section 2254 petition in this court, alleging as follows
See Houston v. Lack, 487 U.S. 266, 270 (1988) (a state prisoner's pro se petition for habeas corpus relief is deemed "filed" at moment of delivery to prison authorities for forwarding to district court).
Ground One: Petitioner was denied a fair trial when the trial court and State Appellate Court failed to grant a mistrial motion after the State cross-examined a defense witness regarding Petitioner's prior DUI conviction as character evidence.
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Ground Two: (A) Petitioner was denied the effective assistance of counsel when counsel failed to object to the State's improper bolstering of [its] own witness. (B) Petitioner was denied the effective assistance of counsel when counsel failed to move for a mistrial when the State improperly bolstered [its] own witnesses testimony. (C) Petitioner was denied his constitutionally guaranteed right to the effective assistance of counsel when counsel's performance taken as a whole was deficient performance that unduly prejudiced Petitioner. (D) The State [courts] erred in finding that the bolstering issue was not raised. (E) Any procedural default by PCR Counsel for failing to sufficiently raise the State's improper bolstering issue is excused by Martinez v. Ryan, 566 U.S. 1, 132 S. Ct. 1309 (2012).
Supporting Facts: The alleged victim was Petitioner's teenage daughter, . . . with whom Petitioner had a strained relationship with due to his [strict] parenting. [Victim] testified that Petitioner had begun committing lewd acts on her when she was ten years old and had allegedly raped her multiple times. [Victim] testified that Petitioner had taken her virginity, however, later examination by a physician established that her hymen was intact. . . .
Wiley Garrett, (hereafter "Garrett") a forensic interviewer for the Children's Advocacy Center, testified without objection from counsel that when Garrett interviewed [Victim] he found her account to be a "clear consistent, and compelling disclosure of sexual abuse." Garrett testified that [Victim] told him the sexual
abuse became once a week when she turned 15. Garrett's report stated that [Victim] [told him] that Petitioner had sex with her three to four times a week after she was ten years old.
Dr. Nancy Henderson (hereafter "Henderson") testified for the State. Henderson testified that [Victim] retained her hymen, although there was a thin spot which could not definitely say resulted from sexual intercourse. Nevertheless Henderson classified it that way based on what [Victim] told her. Without objection Henderson testified that the information she received from [Victim] was invaluable, and she made a plain determination and considered that "[Victim] was telling the truth."
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(A) & (B).
A and B will be addressed together here. The first bolstering witness was Wiley Garrett, a forensic interviewer who was "wrongfully qualified as an expert" without an objection from counsel. Garrett testified that "her ([Victim]'s) disclosure to him was [a] clear, consistent and compelling disclosure of sexual abuse."
The State in this matter had a serious problem because [Victim] . . . if believed was to have been raped multiple times yet had an "intact hymen and was a virgin.". . . . To get past this fact, the State put Dr. Nancy Henderson on the stand who testified to an abnormality of the hymen, but stated "I cannot say for certain it was caused by the incident." Henderson said that the ambiguity was resolved in favor of rape "based on the history [Victim] had shared, and she denied any other kind of trauma to that area." Even though Henderson testified stating: "I can't say that the actual result I saw was caused by the penis." Henderson concluded that she "based it (her conclusion) on the information received by [Victim].
The next instance of improper bolstering was a question advanced by the Prosecution to [Victim]'s mother about whether or not she ([Victim]'s mother) believed her. Trial counsel sat mute and [Victim]'s mother answered in the affirmative. In response to the question of why she believed [Victim] she answered: "[Victim] had [no] reason to lie about something like that." Again counsel sat mute. (emphasis added and supplied).
For reasons clearly unknown trial counsel assisted the Prosecution's case by calling [Victim]'s mother as a witness allegedly for the defense[,] [n]oting she had divorced Petitioner
and was obviously [disgruntled] and unfavorable to Petitioner as a witness. Counsel unsuccessfully tried to get [Victim]'s mother to say that she did not believe [Victim]'s accusations, but the result was devastating in front of the jury when [Victim]'s mother said: "I do believe my daughter." This was extremely damaging coming after the Prosecution had gotten a witness to say she believed [Victim], to which the answer was not a surprise. Clearly counsel's performance was deficient and clearly seen as counsel took part in the improper bolstering.
This improper bolstering was unduly prejudicial because the credibility of [Victim] was a major issue in the case. [Victim] candidly admitted that she considered her father to be [very strict], as Petitioner would not let her date or go out at night. Not too long before the accusations, Petitioner found a boy in [Victim]'s bedroom. After Petitioner's incarceration, [Victim] was in and out of the home at night and was keeping late hours with boys.
Petitioner would submit there is no doubt [Victim] wanted Petitioner out of the way, and as soon as she accomplished that, [Victim] started smoking and drinking and using drugs. [Victim] admitted she "kinda went wild" after Petitioner's arrest and developed a drinking problem. [Victim] admitted that she had been disciplined in school for giving "oral sex to a fellow student." Even the State's witness Garrett testified [Victim] was "parent defiant."
Trial counsel had an obligation to recognize this error and lodge an objection to allow the trial court to correct the error, and further to preserve this meritorious issue for appellate review. . . .
(C).
. . . . The South Carolina Court of Appeals found that trial counsel failed to object to the sufficiency of the curative instruction or move for a mistrial. See State v. Mangal, S.C. Ct. App. Op. No. 2009-UP-113 (2009). Counsel's deficient performance was material and created a reasonable probability of prejudice sufficient to undermine confidence in the outcome of the trial.
(D).
The State PCR Court in [its] order denying reconsideration found that the improper bolstering issue was not raised, yet PCR Counsel did interrogate trial counsel on the issue. The essential question is not how extensive the testimony was, but whether there was [any] testimony at all on the subject. In PCR
Counsel's motion to alter/amend PCR counsel made a more detailed argument on the issue preserving such for appellate review, so it was clearly a matter which was argued to the State PCR Court, yet that Court did not rule on the issue. Petitioner submits there is sufficient evidence in the record that the State Supreme Court should have ruled on the issue as well.(Doc. 1-1 at 4-12).
Although PCR Counsel deficiently raised the issue of bolstering as to only one witness, Petitioner in this habeas is able to argue that the other instances of bolstering proved [an] extremely damaging context where the impact of the bolstering by Dr. Henderson was maximized in that Dr. Henderson's part in the cumulative effect of the improper bolstering.
(E).
The State may argue this issue was procedurally defaulted because the PCR Court did not rule on it. However, Petitioner would submit that the record clearly reveals that the underlying claim of ineffective assistance of counsel is "a substantial" claim, as noted by the Court of Appeals and therefore can be reviewed under Martinez v. Ryan, 566 U.S. 1, 132 S. Ct. 1309 (2012) as result of ineffective assistance of PCR Counsel.
B. Respondent's Motion for Summary Judgment
On June 21, 2018, the respondent filed a motion for summary judgment (doc. 21) and return and memorandum (doc. 20). With regard to the bolstering claims now before the court, the respondent argued that the claims were procedurally defaulted and that the petitioner failed to show both cause for and prejudice from the default of the claims (id. at 42-64). By order filed June 22, 2018, 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. 22). On August 24, 2018, after being granted two extensions of time, the petitioner filed a response in opposition to the motion for summary judgment, and the respondent filed a reply on August 29, 2018 (docs. 34, 37).
On January 23, 2019, the undersigned issued a report and recommendation that the respondent's motion for summary judgment be granted and the petition be denied (doc. 52). On April 8, 2019, the Honorable R. Bryan Harwell, Chief United States District Judge for the District of South Carolina, issued an order granting the respondent's motion for summary judgment with respect to Ground One and the expert qualification issue (relating to Wiley Garrett) raised in Ground Two. Judge Harwell rejected the report and recommendation as to the analysis of the petitioner's improper bolstering claims raised in Ground Two and held in abeyance ruling on these claims, which were brought pursuant to Martinez v. Ryan, 566 U.S. 1 (2012). The court found that an evidentiary hearing was necessary on the Strickland v. Washington, 466 U.S.668 (1984) deficiency prong as it relates to the performance of both trial counsel and PCR counsel. Judge Harwell recommitted the matter to the undersigned with instructions to conduct an evidentiary hearing and to submit another report and recommendation regarding the improper bolstering claims and the "strategy and/or reasons regarding the same" of both trial counsel and PCR counsel. The district court further stated that the undersigned should direct the parties to brief the issue of the Strickland prejudice prong as it relates to both trial counsel and PCR counsel and should analyze this issue in the report and recommendation. Judge Harwell also directed the undersigned to appoint counsel for the petitioner to assist with these matters (doc. 65 at 24-27). C. Evidentiary Hearing on Martinez Claims
On April 11, 2019, the undersigned appointed Derek J. Enderlin to represent the petitioner (doc. 67). Thereafter, on July 10, 2019, the undersigned set the evidentiary hearing for 10:00 a.m. on September 9, 2019, and directed the parties to brief the issue of the Strickland prejudice prong as it relates to both trial counsel and PCR counsel and the petitioner's bolstering claims by September 5, 2019 (doc. 78). The parties timely submitted their pretrial memoranda (docs. 80, 81). The evidentiary hearing was held on September 9, 2019 (doc. 82). The petitioner called trial counsel Crane and PCR counsel Wilkes as witnesses (see doc. 86).
The evidentiary hearing was previously scheduled for August 22, 2019, but was rescheduled based on the unavailability of trial counsel Crane on that date (see docs. 69, 73, 77).
Following the evidentiary hearing, the undersigned directed the petitioner to file his post-trial memorandum within 30 days of counsel's receipt of the hearing transcript and directed the respondent file his memorandum within 30 days after the filing of the petitioner's memorandum, with any reply by the petitioner filed within ten days thereafter (doc. 85). The transcript was filed on September 16, 2019 (doc. 86), and the petitioner timely filed a trial brief on October 16, 2019 (doc. 92). On November 5, 2019, the respondent moved for an extension of time, with the consent of the petitioner (doc. 93). The undersigned granted the motion through November 25, 2019 (doc. 94). The respondent timely filed a trial brief on that date (doc. 96), and the petitioner filed a reply brief on December 4, 2019 (doc. 98).
III. APPLICABLE LAW
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. Procedural Default
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief on an issue after he failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
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).
"[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, 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 v. Thompson, 501 U.S. 722, 750 (1991)). A fundamental miscarriage of justice equates to the conviction of someone who is actually innocent. However, "actual innocence" requires "factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998).
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 post conviction 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 Fourth Circuit has expounded on the requirement of a "substantial" claim:
Regarding the requirement that there be a "substantial" claim, the Supreme Court held that a prisoner must "demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a
substantial one, which is to say that the prisoner must demonstrate that the claim has some merit." Martinez, 132 S. Ct. at 1318. Relatedly, to show ineffective assistance, the petitioner must make a "substantial" showing with respect to both counsel's competency (first-prong Strickland) and prejudice (second-prong Strickland).Teleguz v. Zook, 806 F.3d 803, 815 (4th Cir. 2015) (ellipsis, some internal quotation marks, and some internal citations omitted). Significantly, "because a petitioner raising a Martinez claim never presented the claim in state court, a federal court considers it de novo, rather than under AEDPA's deferential standard of review." Gray v. Zook, 806 F.3d 783, 789 (4th Cir. 2015). C. Strickland Test
As to the specific elements of the ineffective assistance claim, a petitioner must make a substantial showing of incompetency, i.e., that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Further, the petitioner must make a substantial showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable, i.e., that there was a substantial, not just conceivable, likelihood of a different result.
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.
D. Improper Bolstering
"[A]ny testimony by one witness as to their opinion about the credibility of another witness" is inadmissible, "incompetent evidence." State v. Dawkins, 377 S.E.2d 298, 302 (S.C. 1989); State v. Dempsey, 532 S.E.2d 306, 309-10 (S.C. Ct. App. 2000) (recognizing Dawkins stands for the principle that a witness cannot "improperly vouch[] for the victim's credibility"). "[A]fter State v. Dawkins was decided in 1989, the law was clear that no witness may give an opinion as to whether the victim is telling the truth." Thompson v. State, 814 S.E.2d 487, 491 (S.C. 2018) (emphasis added) (quoting Briggs v. State, 806 S.E.2d 713, 718 (S.C. 2017)). "[T]he central point of the prohibition against improper bolstering [is that] a witness may not give an opinion for the purpose of conveying to the jury—directly or indirectly—that she believes the victim." Briggs, 806 S.E.2d at 717; see Thompson, 814 S.E.2d at 491 ("[I]t [i]s improper for a witness to vouch for the credibility of another witness."). "[N]o witness may give an opinion as to whether the victim is telling the truth," and "[w]hen the testimony directly conveys the witness's opinion that the victim is telling the truth, it is obviously improper bolstering." Briggs, 806 S.E.2d at 718.
IV. ANALYSIS OF MARTINEZ CLAIMS
The petitioner's ineffective assistance claims at issue here concern three trial witnesses: (1) forensic interviewer Wiley Garrett, (2) pediatrician Dr. Nancy Henderson, and (3) the victim's mother. The petitioner alleges trial counsel was ineffective by failing to object to and by eliciting certain testimony from these three witnesses that had the effect of improperly bolstering the victim's credibility. It is undisputed that the claims are procedurally defaulted. The petitioner faults PCR counsel for failing to properly raise these claims in the state proceedings, and thus he seeks to bring the claims in this court pursuant to Martinez. Again, to overcome the procedural default and for this court to review his claims of ineffective assistance of trial counsel under Martinez, the petitioner must show that (1) the underlying ineffective assistance of trial counsel claims are substantial (i.e., have "some merit") and (2) PCR counsel was ineffective for failing to raise the claims in the state PCR proceedings. Buck v. Davis, 137 S. Ct. 759, 771 (2017). Accordingly, the court will first consider whether the underlying ineffective assistance of trial counsel claims have merit and will then consider whether PCR counsel was ineffective for failing to raise the claims in the state PCR proceedings.
The opinions of the Supreme Court of South Carolina and the Court of Appeals of South Carolina make clear that the petitioner's claims are defaulted under South Carolina procedural rules governing issue preservation and presentation of issues to a PCR court. Specifically, the Supreme Court of South Carolina found the petitioner's claim regarding Dr. Henderson was not properly presented to the PCR court, and the Court of Appeals of South Carolina (which was reversed on the Dr. Henderson issue) found the petitioner's claims regarding Garrett and the victim's mother were not preserved for appellate review; in reaching these results, both courts relied on established state law principles governing issue preservation and presentation of issues to the PCR court. See Mangal II, 805 S.E.2d at 576 ("This is not an appropriate case in which to excuse Mangal from his procedural default."); Mangal I, 781 S.E.2d at 735-36 ("[W]e find any bolstering issues related to other witnesses are unpreserved because they were not raised in Petitioner's PCR application, the PCR hearing, or in the Rule 59(e) motion.").
A. Trial Counsel
1. Strickland Deficiency Prong
As noted above, Judge Harwell reserved ruling on the Strickland deficiency prong as it relates to trial counsel, "pending an evidentiary hearing on the issue of strategy" (doc. 65 at 15, 18, 20). Further, the undersigned was directed to submit another report and recommendation regarding "the improper bolstering claims . . . and trial counsel's strategy and/or reasons regarding same" (id. at 26). "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." Strickland, 466 U.S. at 689. "The proper measure of attorney performance [is] reasonableness under prevailing professional norms." Id. at 688.
a. Wiley Garrett
The petitioner alleges that his trial counsel was ineffective for failing to object when the State bolstered the victim's testimony though Garrett (doc. 1-1 at 7-8). As noted above, Garrett conducted two forensic interviews of the victim, and he was qualified as an expert "in the area of forensic interviewing to give opinion testimony in that area" (app. 119-22). The portion of Garrett's testimony on direct examination that the petitioner claims is improper bolstering is as follows:
Q: What conclusion did you make regarding your forensic interview of victim?(App. 130; doc. 20-10 at 4, supp. app.) (emphasis added).
A: Oh, oh. My, my conclusion was that her disclosure was [a] clear, consistent, and compelling disclosure of sexual abuse.
Q: Do you have an opinion then within a reasonable degree of psychological certainty, based upon your education, training, and experience, and based further upon your forensic interview of victim, whether your findings are consistent with a child who's been sexually abused?
A: Yes, I, I do have a conclusion and yes, victim words, disclosures, descriptions, emotions, reactions are all consistent with a child who has been sexually abused.
In the order issued on April 8, 2019, Judge Harwell stated as follows with regard to trial counsel's failure to object to Garrett's above-quoted testimony:
As mentioned above, Petitioner's trial occurred in 2007. After 1989, South Carolina law was "clear" that no witness may opine that a victim is telling the truth. Thompson, 814 S.E.2d at 491 (citing Dawkins); Briggs, 806 S.E.2d at 718 (same). More specifically, regarding forensic interviewers, "[a]fter Dawkins in 1989, . . . reasonably competent trial counsel should know to object—absent a valid trial strategy—when a forensic interviewer gives testimony that indicates the witness believes the victim, but does not serve some other valid purpose." Briggs, 806 S.E.2d at 718; see State v. White, 578 S.E.2d 728, 733 (S.C. Ct. App. 2003) (considering an improper bolstering challenge and recognizing Dawkins "and its progeny" establish "the proper boundaries of expert testimony regarding . . . sexual abuse"), aff'd as modified, 605 S.E.2d 540 (S.C. 2004); State v. Dempsey, 532 S.E.2d 306, 309 (S.C. Ct. App. 2000) ("[N]o psychotherapist may render an opinion on whether a witness is credible in any trial in this state. The assessment of credibility is for the trier of fact and not for psychotherapists."); State v. Morgan, 485 S.E.2d 112, 119 (S.C. Ct. App. 1997) ("Prejudice can result from an expert's testimony about the victim's credibility, by giving factfinders little more than a false sense of security based on the incorrect assumption that a reasonably accurate scientific explanation for behavior has been provided." (internal quotation marks omitted)), overruled on other grounds
by State v. White, 676 S.E.2d 684 (S.C. 2009). "That such evidence is improper, in both state and federal trials, can hardly be disputed," Snowden v. Singletary, 135 F.3d 732, 738 (11th Cir. 1998), and the reason is simple—"[d]etermining the weight and credibility of witness testimony . . . belongs to the jury." United States v. Scheffer, 523 U.S. 303, 313 (1998).(Doc. 65 at 12-14) (emphasis in original).
Judge Harwell found as follows, "[A]s Respondent concedes, Garrett's above-quoted testimony constituted improper bolstering. Thus, the question is whether trial counsel made an 'informed strategic choice,'. . . , not to object to Garrett's inadmissible testimony . . . . '" (doc. 65 at 14) (quoting Strickland, 466 U.S. at 691). Judge Harwell further noted, "If trial counsel chose not to object pursuant to a 'sound trial strategy,' . . . the Court could potentially conclude his performance was objectively reasonable despite the inadmissibility of this testimony" (id.) (quoting Strickland, 466 U.S. at 689). While trial counsel did not object to Garrett's improper bolstering testimony, he asked Garrett during cross examination if he had dealt with 16 year old girls who made similar allegations that "turned out to be untrue," and Garrett replied, "Oh, yes, I have" (doc. 65 at 14) (citing app. 143). The district court noted that it was "unclear whether trial counsel's apparent strategy of demonstrating fabrication—by showing inconsistencies in the victim's reports of sexual abuse—would have been advanced by allowing Garrett to effectively testify he believed the victim's 'clear, consistent, and compelling disclosure of sexual abuse' while bootstrapping that conclusion to his expert opinion" (id.).
Trial counsel was not asked about Garrett's testimony in the state PCR hearing. In the federal evidentiary hearing before the undersigned, trial counsel testified he had been practicing criminal law for 30 years when he tried the petitioner's case (doc. 86 at 9). He did not recall trying any CSC with a minor trial before the petitioner's (id. at 23). He testified the whole case came down to credibility (id. at 11). He noted the victim's story was "scatterbrained and changed several times" and that several people in the courtroom told him the jury would not convict the petitioner (id. at 12). Trial counsel acknowledged that he was not sure he knew what improper bolstering was at the time of trial (id. at 13, 19). In regards to Garrett's testimony — including his statement that part of his job was to determine whether there was fabrication and his conclusion that the victim's words, disclosures, descriptions, emotions, reactions, were all consistent with a child who has been sexually abused and were a compelling disclosure of sexual abuse — trial counsel did not consider objecting to the improper bolstering (id. at 14-15). He testified that if he could have prohibited Garrett from testifying he would have done so (id. at 16). He testified there was nothing helpful in allowing Garrett to testify that he believed the victim or that the victim was truthful, and there was definitely no strategic reason to allow Garrett to testify that way (id.).
As noted by the district court, it was unclear from the trial counsel's limited testimony regarding Dr. Henderson at the PCR hearing whether he understood the concept of improper bolstering and the permissible scope of an expert's testimony (app. 584, 595-96). Based upon trial counsel's testimony at the federal evidentiary hearing, it is now clear that trial counsel did not make an informed strategic choice not to object to Garrett's inadmissible bolstering testimony (doc. 86 at 14-15). Further, trial counsel testified that his strategy of demonstrating fabrication by the victim was not advanced by allowing Garrett to testify that he believed the victim or that she was truthful (id. at 16). As noted, leading up to the bolstering testimony at issue, Garrett had confirmed that one of the purposes of forensic interviewing was "to determine whether there's fabrication" (app. 123-24).
As Judge Harwell stated in ordering an evidentiary hearing, "As the record currently stands, the Court is unable to conclude that trial counsel consciously decided not to object Garrett's improper bolstering testimony pursuant to a valid trial strategy" (doc. 65 at 15) (citing Griffin v. Warden, 970 F.2d 1355, 1358 (4th Cir. 1992) (explaining "courts should not conjure up tactical decisions an attorney could have made"). Trial counsel's testimony at the evidentiary hearing has now made clear that his failure to object to Garrett's improper bolstering testimony was not part of a valid trial strategy. See Briggs, 806 S.E.2d at 720 ("If [trial counsel] did not consider objecting, he could not have decided not to object as a matter of strategy."). Based upon the foregoing, the undersigned finds that the petitioner has met his burden of showing that trial counsel's representation in this regard was objectively unreasonable under prevailing professional norms.
b. Dr. Nancy Henderson
The petitioner contends that Dr. Henderson's testimony - elicited by the State on direct examination and by trial counsel on cross examination - improperly bolstered the victim's credibility (doc. 1-1 at 8-11; doc. 34 at 16-23; doc. 59 at 6-8). As noted above, the trial judge qualified Dr. Henderson as an expert "in the examination, diagnosis, and treatment of child sexual abuse" (app. 147-53).
The portion of Dr. Henderson's testimony on direct examination that the petitioner claims is improper bolstering is as follows:
Q: Doctor Henderson, do you have an opinion, within a reasonable degree of medical certainty based upon your education, training, and experience and based upon your findings on examination of Victim, whether those findings are consistent with penetrating injury?(App. 159) (emphasis added).
A: Based on the history that she shared with me and based on my examination I felt that it was consistent with a, that she had been abused.
Q: All right. Also opinion as to whether she was sexually abused, that opinion is?
A: That she had been, yes, sir.
On cross examination, Dr. Henderson testified that her report did not indicate "consistent" with sexual abuse, but instead indicated "suspicious" of sexual abuse, because the report was based on the physical examination, but her testimony was based on the history the victim provided as well (app. 161-63). Dr. Henderson elaborated that "based on the history that Victim shared, and she denies any other kind of trauma to that area . . . my conclusion is . . . as I stated" (app. 163) (emphasis added). When asked whether she based her testimony on possible untrue information from the victim, Dr. Henderson replied, "I based it on the information received by my patient, which is invaluable information any doctor receives when they are examining a patient" (app. 164) (emphasis added). When asked whether she assumed that what the victim told her was true, Dr. Henderson responded, "Based on the way she shared it and all the information that she shared, yes" (app. 164) (emphasis added).
In Mangal II, the Supreme Court of South Carolina found this claim procedurally defaulted without resolving the issue on the merits. 805 S.E.2d at 576 ("We need not decide whether this was a valid trial strategy. We simply find this evidence does not support the extraordinary action of excusing Mangal's procedural default." (internal footnote omitted)). Given the procedural default finding, the court's review of this Martinez claim remains de novo. See Gray, 806 F.3d at 789.
The respondent argues that Dr. Henderson's direct examination did not constitute improper bolstering because the testimony pertained solely to her medical opinion concerning her examination of the victim, which necessarily included the victim's relation of medical history and whether her findings were consistent with abuse, and she was entitled to give this opinion as a matter of state evidentiary law (doc. 96 at 48-49) (citing Rule 704, SCRE (providing that "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact") and Rule 803(4), SCRE (providing that "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history . . . " are not excluded by the hearsay rule)). The respondent argues that Dr. Henderson "did not testify on direct that she personally felt the victim was telling the truth. Rather, her testimony was that what her examination revealed was consistent with the victim's claim of sexual abuse" (id. at 53). The respondent further argues that trial counsel's cross examination of Dr. Henderson did not bolster the victim's testimony because the purpose was to impeach Dr. Henderson's testimony on direct and simultaneously undermine the victim's credibility (id at 54-55).
It would have been proper for Dr. Henderson to opine that, based on her examination, the victim's injuries were consistent with sexual abuse. However, Dr. Henderson testified that her opinion was based on the examination and "the history that [the victim] shared with [her]" (app. 159). Immediately after stating that her opinion was based, at least in part, on what the victim told her, Dr. Henderson stated, "I felt that it was consistent with a, that she had been abused" (id.). On cross examination, Dr. Henderson again stated that her opinion was based on her examination of the victim and the history the victim provided (app. 161-63). When trial counsel asked whether she assumed that what the victim told her was true, Dr. Henderson responded, "Based on the way she shared it and all the information that she shared, yes" (app. 164). The undersigned agrees with the Court of Appeals that "[t]here is no other way to interpret these comments other than to mean that Dr. Henderson believed [the victim] was truthful." See Mangal I, 781 S.E.2d at 736-37 (citing State v. Chavis, 771 S.E.2d 336, 340 (S.C. 2015) (finding a child abuse assessment expert's recommendation that the defendant should not be around the victim for any reason was improper because it could only be interpreted as the expert's believing the victim's sexual abuse claims); State v. Jennings, 716 S.E.2d 91, 94 (S.C. 2011) (finding an expert's reports were erroneously admitted when there was "no other way to interpret the language used in the reports other than to mean the forensic interviewer believed the children were being truthful"); Dempsey, 532 S.E.2d at 308-10 (finding a child sex abuse expert's testimony improperly vouched for a victim's credibility when the expert concluded victim was reliable and the expert testified that a very high rate of children who made sex abuse allegations were truthful); Dawkins, 377 S.E.2d at 302 (holding a psychologist's testimony indicating he believed a victim's allegations were genuine was improper)).
Dr. Henderson's testimony on direct examination that her conclusion that the victim had been sexually abused was based, at least in part, on what the victim told her and her testimony on cross examination that she assumed what the victim told her was true based on the information the victim shared and the way the victim shared it was improper bolstering testimony. Thus, the question is whether trial counsel made an "informed strategic choice" not to object to the testimony. See Strickland, 466 U.S. at 691.
In the PCR hearing, trial counsel was asked about Dr. Henderson's allegedly bolstering testimony:
[T]rial counsel admitted that he did not object when Dr. Henderson was asked whether her findings were consistent with a penetrating injury and she responded that she believed Victim was abused. On cross-examination, trial counsel stated he expected Dr. Henderson to opine that Victim was abused because her testimony was "canned testimony." Trial counsel explained that he had been in cases with Dr. Henderson before, and he probably should have objected when she gave an opinion on the ultimate issue. On redirect, trial counsel was asked if the comment struck "a cord as improper bolstering" during trial, and trial counsel stated it did not.Mangal I, 781 S.E.2d at 735. (See app. 570-97).
In the PCR hearing, trial counsel was asked about the alleged bolstering testimony in the State's direct examination of Dr. Henderson, but he was not asked about the alleged bolstering testimony in Dr. Henderson's cross examination testimony (see app. 583-84, 594-95). See Mangal II, 805 S.E.2d at 572 ("[M]ost of the testimony the court of appeals relied on to support its conclusion Dr. Henderson's testimony was improper bolstering was actually elicited by trial counsel on cross examination. There was no reference to any of that testimony during the PCR hearing.").
In the evidentiary hearing before the undersigned, the petitioner questioned trial counsel Crane about whether he considered raising a bolstering objection to any of the testimony from Dr. Henderson (and Garrett) at the time of the 2007 trial, and he testified as follows:
The best I can recall, to give you a one-word answer would be: No. .... I'm not sure that back then -- I think I said it at the PCR hearing. I'm not sure that I considered bolstering. I'm not sure that even with all my years of practice, I was aware of the various cases that have said that improper bolstering should not be allowed and ought to be objected to. So I didn't object to it.(Doc. 86 at 13). Trial counsel further testified that Dr. Henderson's above-quoted testimony on direct examination did not strike him as bolstering, but if he could have excluded that testimony, he would have (id. at 17). He testified that he would have excluded any testimony that relied on history rather than physical examination if he could have (id.). Trial counsel further testified, "I guess maybe I have to say that I wasn't sure that I was aware of the prohibition against bolstering, or I would have objected" (id. at 18). He testified that there was no strategic reason to allow Dr. Henderson to testify that she believed the victim or to allow the expert to bolster the victim's testimony (id. at 19). Trial counsel also agreed he should have objected to the prosecutor reading Garrett's and Dr. Henderson's statements verbatim to the jury during the closing argument. He did not have any strategic reason not to object, and he agreed that the testimony was powerful evidence (id. at 19-20). When asked if he recalled whether or not he knew to object to possible bolstering, trial counsel replied, "I really don't, and I apologize to Mr. Mangal for that" (id. at 31).
On cross examination in the evidentiary hearing, trial counsel testified that in his cross examination of Dr. Henderson, he was able to impeach her with her own report by pointing out that her report differed from her trial testimony (doc. 86 at 28). Trial counsel was asked whether, at trial, he was "trying to suggest . . that, 'Of course, [Dr. Henderson] says this because she is an advocate'?" (id. at 30). Crane testified that he "might've said that" in his closing argument (id. at 31). While trial counsel was able to impeach Dr. Henderson in his cross examination by pointing out that her report differed from her trial testimony (app. 161-63), upon further questioning by trial counsel, Dr. Henderson testified that she did assume that what the victim told her was true "[b]ased on the way she shared it and all the information that she shared . . . ." (app. 164). As in Briggs, trial counsel "compounded [Dr. Henderson's] prejudicial testimony on direct examination" by again eliciting testimony from her that she believed the victim was telling the truth. See Briggs, 806 S.E.2d at 721.
Based upon the foregoing, it is clear that trial counsel's failure to object to Dr. Henderson's improper bolstering testimony was not part of a valid trial strategy. See Briggs, 806 S.E.2d at 720 ("If [trial counsel] did not consider objecting, he could not have decided not to object as a matter of strategy."). The undersigned finds that the petitioner has met his burden of showing that trial counsel's representation in this regard was objectively unreasonable under prevailing professional norms.
c. Victim's Mother
The petitioner alleges that his trial counsel was ineffective for not objecting to the State's cross examination of the victim's mother, which he contends constituted improper bolstering (doc. 1-1 at 7-11). The portion of the victim's mother's testimony that the petitioner claims is improper bolstering is as follows:
Q: [D]id you question [the victim] about why she had waited so long?(App. 314) (emphasis added).
A: Yes, of course. I mean that kept running through my mind why, why did she not, why did she not come to me.
Q: And did she tell you why?
A: She told me she was afraid because he promised to hurt her brothers and myself if she ever, ever told anybody.
Q: At that time did you believe what your daughter was telling you?
A: Yes, ma'am, I did, and I still do.
Q: What made you believe her?
A: Because she's my child.
Q: Yes, ma'am.
A: She had . . . no reason to lie about something like that. . . . [I]f anybody could of seen the level of how distraught she was, the look in her eyes, the begging, please help me, that's why I believed her.
The respondent contends in the motion for summary judgment and the post-evidentiary hearing trial brief that this testimony does not constitute improper bolstering because it did not come from a prosecution witness (doc. 20 at 63; doc. 96 at 67-69). However, Judge Harwell has previously rejected this argument, stating, "[A]s mentioned above, ' no witness may give an opinion as to whether the victim is telling the truth'" (doc. 65 at 19) (quoting Briggs, 806 S.E.2d at 718) (emphasis added in J. Harwell's order).
The respondent further argues that, even if the court finds that the State's cross examination of the victim's mother bolstered the victim's credibility, it was not improper bolstering because the State had the right to question the victim's mother about prior consistent statements of the victim in order to refute the petitioner's implicit assertion of recent fabrication by the victim (doc. 96 at 70-73) (citing Rule 801(d)(1)(B), SCRE) (other citations omitted). The rule cited by the respondent provides that a prior statement by a witness is not hearsay if the "declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive . . . . " Rule 801(d)(1)(B), SCRE. However, the State's cross examination of the victim's mother was not limited to inquiring about the victim's prior consistent statements. Rather, the State specifically asked the victim's mother if she believed her daughter and the reasons why she believed her, which elicited the testimony set forth above (app. 314). See Tome v. United States, 513 U.S. 150, 157-58 (1995) (discussing Fed. R. Civ. P. 801(d)(1)(B) and stating that the purpose of the rule is to rebut an alleged fabrication or motive, not to "bolster[ ] the veracity of the story told."). As Judge Harwell stated, "This testimony unmistakably conveyed the mother's opinion that she believed her daughter was telling the truth about the alleged abuse" (doc. 65 at 19) (citing Briggs, 806 S.E.2d. at 719 (finding testimony that "clearly conveyed to the jury that [the witness] believed the victim" was improperly bolstering)).
"Rule 801(d)(1)(B), SCRE is based upon its counterpart under the Federal Rules of Evidence." State v. Fulton, 509 S.E.2d 819, 824 (S.C. Ct. App. 1998).
Based upon the foregoing, the victim's mother's above-quoted testimony was improper bolstering, and, therefore, the question is whether trial counsel made an "informed strategic choice" not to object. See Strickland, 466 U.S. at 691.
Trial counsel was not asked about the victim's mother's testimony in the state PCR hearing. In the evidentiary hearing in this case, trial counsel testified he did not recognize the above-quoted testimony as improper bolstering at the time, he had no strategic reason not to object to the testimony, and he would have excluded the testimony if possible (doc. 86 at 20-21). Trial counsel confirmed that he never made a decision to allow bolstering testimony in order to get other information in front of the jury (id. at 37).
Based upon the foregoing, it is clear that trial counsel's failure to object to the victim's mother's improper bolstering testimony was not part of a valid trial strategy. See Briggs, 806 S.E.2d at 720 ("If [trial counsel] did not consider objecting, he could not have decided not to object as a matter of strategy."). The undersigned finds that the petitioner has met his burden of showing that trial counsel's representation in this regard was objectively unreasonable under prevailing professional norms.
2. Strickland Prejudice Prong
To satisfy Strickland's prejudice prong, the petitioner must show a "reasonable probability" that the outcome of trial would have been different had the jury not heard the improper bolstering testimony. See 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the . . . jury." Id. at 695. "Strickland asks whether it is 'reasonably likely' the result would have been different," and the "likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 562 U.S. 86, 112 (2011). "In jurisdictions such as South Carolina, where a jury must return a unanimous verdict to convict, the prejudice prong of Strickland is met where 'there is a reasonable probability that at least one juror would have struck a different balance.'" Hope v. Cartledge, 857 F.3d 518, 524 (4th Cir. 2017) (quoting Wiggins v. Smith, 539 U.S. 510, 537 (2003)).
As noted by Judge Harwell in the April 8, 2019 order, "strong arguments can be made for and against Strickland prejudice" in this case (doc. 65 at 20). The respondent admits that "the central issue in this case was whether the victim or the petitioner was telling the truth" (doc. 96 at 57, 61, 73-74). However, the respondent argues that the petitioner cannot show prejudice from the alleged errors because the victim's testimony was not the only evidence presented by the State to support her credibility. Specifically, the respondent notes that Dr. Henderson's expert testimony concerning her gynecological findings supported the victim's claims (doc. 96 at 57-58, 61-63). Importantly, however, Dr. Henderson's testimony was that, based on the examination alone, it was unclear whether the victim's narrowed but otherwise intact hymen was caused by penetration or some other trauma, but, based on the victim's history denying any other kind of trauma to that area, Dr. Henderson opined that she found the narrowing was caused by abuse (see app. 157-63). Thus, Dr. Henderson's testimony regarding her gynecological findings was based on her opinion that the victim was truthful, making her testimony particularly prejudicial. See Mangal I, 781 S.E.2d at 737 ("Given a lack of physical evidence, we believe Dr. Henderson's testimony was critical because she explained how Victim—who claimed full penetration occurred on multiple occasions—had a narrowed but otherwise intact hymen. As a result, Dr. Henderson's improper testimony insinuating that she found Victim credible was particularly prejudicial.").
Similarly, in Thompson v. South Carolina, an expert testified the victim suffered from post-traumatic stress disorder, that the victim's interview was compelling for sexual abuse, and that it was one of the most compelling interviews the expert had conducted. 814 S.E.2d 487, 490-91 (S.C. 2018). The Supreme Court of South Carolina found that the "testimony most certainly served to directly enhance the credibility of Victim" and noted that the prosecutor repeated the statements to the jury in closing. Id. at 491. Likewise, here, the State emphasized Dr. Henderson's expert testimony in the closing argument (app. 510-12). The court in Thompson concluded that "[t]he devastating prejudicial effect of [the expert's] improper bolstering testimony is . . . clear." 814 S.E.2d at 494. While the PCR court had concluded that the petitioner in Thompson was not prejudiced by trial counsel's deficient performance because properly admitted evidence overwhelmingly established the petitioner's guilt, id. at 492, the state Supreme Court reversed, finding that "[t]he properly admitted evidence of Petitioner's guilt was not strong enough to overcome trial counsel's failure to object to [the expert's] inadmissible bolstering testimony." Id. at 495. The same is true here.
Judge Harwell referred the parties to cases in which they might find the Strickland prejudice analysis helpful (doc. 65 at 22 n.23). The Thompson case is one of those cases (id.) (citing Gabaree v. Steele, 792 F.3d 991, 999-1000 (8th Cir. 2015); Thomas v. United States, 596 F. App'x 808, 810 (11th Cir. 2015); Engesser v. Dooley, 457 F.3d 731, 738-39 (8th Cir. 2006); Earls v. McCaughtry, 379 F.3d 489, 495-96 (7th Cir. 2004); Dorsey v. Chapman, 262 F.3d 1181, 1186 (11th Cir. 2001); Olesen v. Class, 164 F.3d 1096, 1102 (8th Cir. 1999); White v. Nooth, 322 F. Supp. 3d 1077, 1092-93 (D. Or. 2018); Parmelee v. Piazza, 622 F. Supp. 2d 212, 229-30 (M.D. Pa. 2008); Thompson, 814 S.E.2d at 494-95; Briggs, 806 S.E.2d at 722-23).
The respondent argues that the testimony of the victim's brother supported the victim's claims (doc. 96 at 57-58, 61-63). Specifically, the victim's brother testified that the victim told him the abuse started when she was ten and continued until she was 16 years old. He further testified that, on numerous occasions, the petitioner took the victim into a locked room, and she would leave visibly upset and crying and go to the bathroom (app. 96-98). While this is incriminating testimony, as in Thompson, the properly admitted evidence of the petitioner's guilt here is not strong enough to overcome trial counsel's failure to object to the inadmissible bolstering testimony of Garrett, Dr. Henderson, and the victim's mother.
The respondent further argues that trial counsel impeached the credibility of Garrett's opinion through not only his cross examination of Garrett, but through his cross examination of the victim and his direct examination of her mother concerning their failure to tell Garrett relevant information (doc. 96 at 62). Further, Garrett conceded that he had cases where 16 year old girls had lied about being sexually abused, and he did not speak to the petitioner about the allegations against him (see app. 139-43). Trial counsel then used these discrepancies in arguing in his closing that "Wiley Garrett believes [the victim]. But Wiley Garrett didn't have all the information" (see app. 480-81). The respondent further notes that trial counsel suggested in his closing argument that Dr. Medlock's testimony further undermined the basis for Garrett's belief in the victim's credibility (doc. 96 at 62-63).
Importantly, however, the State emphasized Garrett's expert testimony in its closing argument, repeating Garrett's testimony and telling the jury that Garrett did not think the victim was lying (app. 510) ("And yes, I've had teenagers who came in lying, and no, she wasn't in my opinion. That's what [Garrett] said. . . . "). Similarly, in Briggs, trial counsel testified in PCR proceedings that the case against his client turned on the credibility of the victim. 806 S.E.2d at 722. Despite the fact that the petitioner in Briggs did not strongly deny the accusations, instead telling detectives he was "sick and needed help, and the fact that two jailhouse informants testified the petitioner admitted the offenses, the Supreme Court of South Carolina upheld the PCR court's determination that the petitioner was prejudiced by his trial counsel's failure to object to the forensic interviewer's testimony that it was her "purpose" to "find[] out if something happened" or "to figure out what has occurred." Id. at 719-20, 722-23. The state Supreme Court reiterated that "'the impermissible harm' from improper bolstering 'is compounded' when the witness 'is qualified as an expert.'" Id. at 722 (quoting South Carolina v. Kromah, 737 S.E.2d 490, 499 (S.C. 2013)). Moreover, "although an expert's testimony theoretically is to be given no more weight by a jury than any other witness, it is an inescapable fact that jurors can have a tendency to attach more significance to the testimony of experts." Kromah, 737 S.E.2d at 499;
The respondent further asserts the victim's mother's bolstering testimony could not have prejudiced the petitioner in light of the mother's repeated assertions on direct examination "that she believed her daughter's report of molestation by Petitioner" (doc. 20 at 64; see also doc. 96 at 73). However, Judge Harwell has previously rejected this argument (doc. 65 at 19). Specifically, Judge Harwell noted that on direct examination, the mother testified she herself was "telling the truth" that her daughter was violated— not that she believed her daughter (id.; see app. 281). In contrast, on cross examination, the victim's mother was asked whether she believed her daughter, and she responded that she did and gave several reasons why she believed her (app. 314).
The respondent also argues that trial counsel presented several well-respected members of the community who testified to the petitioner's good character and that trial counsel "mounted a virtual war on [the victim's] credibility," establishing a motive for the victim to fabricate the charges against the petitioner (doc. 96 at 28-29, 58-59, 63-64, 74-75). Specifically, Kevin Riddle, a senior investigator in the Spartanburg Public Defender's Office, who had lived next door to the Mangal family, testified that he did not "believe much of what comes out of [the victim's] mouth" and that the victim's social life improved following the petitioner's arrest (app. 404, 408-10, 413-14). Contractor Jim Brock testified to the petitioner's good reputation and that the allegations were out of character for him (app. 448-49), and Elizabeth Waddell testified that the petitioner had done construction for her, and she trusted the petitioner "100 percent" (app. 456-57). As noted by the respondent, the general themes of trial counsel's closing argument were that the victim's various inconsistent statements demonstrated that she was lying; that the charges against the petitioner were brought because both she and her mother had motives for wanting the petitioner out of their lives, and those motives had nothing to do with sexual abuse of the victim; and that jurors should believe his character witnesses (app. 466-69).
The importance of the believability of the victim to the State's case against the petitioner is only reinforced by the respondent's arguments. Here, the case lacked physical evidence, and there were no witnesses to the sexual abuse testified to by the victim. In a similar case, the Court of Appeals for the Seventh Circuit found in Earls v. McCaughtry that the petitioner was prejudiced by his trial counsel's failure to object to a social worker's expert testimony that, in her interview with the victim, she was looking for things to determine if the victim was being truthful, and she did not see anything that would indicate the victim was not being truthful. 379 F.3d 489, 493, 495-96 (7th Cir. 2004). The court noted that "the sole issue before the jury was whether [the victim] was telling the truth" as "[t]here was no physical evidence of abuse and no witnesses who could corroborate [her] version of the events . . . ." Id. at 495-96. The court noted that the social worker's testimony was "pivotal." Id. at 496. Likewise, the testimonies of the State's expert witnesses (Garrett and Dr. Henderson) were pivotal to the case against the petitioner, and both "wandered into assessing the credibility of [the victim's] accusation - an issue that should have been left solely for the jury to determine." Id.
The respondent also notes that trial counsel argued in closing and the trial judge instructed jurors that it was their duty, alone, to determine the believability and credibility of the witnesses (see app. 472, 481-82, 522-23). The trial judge likewise instructed jurors that even though Garrett and Dr. Henderson had been qualified as experts, "[t]hat does not mean that you must accept [their] opinion[s]" (see app. 122, 152-53). While "[a] jury is presumed to follow its instructions," Weeks v. Angelone, 528 U.S. 225, 234 (2000) (citation omitted), "[m]erely giving general instructions as to witness credibility is not sufficient to give confidence that the outcome was not tainted by prejudice." United States v. Luck, 611 F.3d 183, 190 (4th Cir. 2010). See also State v. Makins, App. Case No. 2016-002495, 2019 WL 4180050, at *5 (S.C. Ct. App. Sept. 4, 2019) (finding that "[a]n isolated statement, buried in the midst of the circuit court's jury instructions and unconnected to any specific witness or statement, could not cure the prejudice" of allowing testimony of witness that implied she believed the victim was telling the truth with respect to allegations of sexual abuse) (citing Dempsey, 532 S.E.2d at 310 (noting trial court's curative instructions during and immediately following child sexual abuse counselor's bolstering testimony cured any prejudice flowing from the improper vouching)).
Given the importance of the jury's assessment of the victim's credibility in this case and the lack of overwhelming evidence of the petitioner's guilt, the undersigned recommends that the district court find that the petitioner has met the prejudice prong of Strickland because there is a reasonable probability that at least one juror would have struck a different balance had the jury not heard the improper bolstering testimony (see doc. 65 at 20).
The undersigned is mindful that the Court of Appeals for the Fourth Circuit has held that cumulative error by trial counsel cannot provide a basis for habeas relief. See Fisher v. Angelone, 163 F.3d 835, 852 (4th Cir. 1998) (rejecting petitioner's argument "that the cumulative effect of his trial counsel's individual actions deprived him of a fair trial"); see also Mueller v. Angelone, 181 F.3d 557, 586 (4th Cir. 1999) ("Petitioner also urges us to consider the cumulative effect of his ineffective assistance of counsel claims rather than whether each claim, considered alone, establishes a constitutional violation. This argument is squarely foreclosed by our recent decision in Fisher ..."). Here, particularly with regard to the improper bolstering claims as to the State's experts, the petitioner has shown a "reasonable probability" that the outcome of trial would have been different had the jury not heard the improper bolstering testimony of each of the witnesses considered individually.
Based upon the foregoing, the petitioner has met his burden under Martinez of showing that the underlying ineffective assistance of trial counsel claims have "some merit." Accordingly, the undersigned will now consider whether PCR counsel was ineffective for failing to raise the claims in the state PCR proceedings. See Buck, 137 S. Ct. at 771.
B. PCR Counsel
1. Strickland Deficiency Prong
The Strickland deficiency prong requires the petitioner to show PCR counsel's representation was objectively unreasonable "under prevailing professional norms." Strickland, 466 U.S. at 688. In his order, Judge Harwell stated as follows with regard to PCR counsel's representation of the petitioner:
"After Dawkins in 1989, certainly after Douglas in 2009 and Smith in 2010, reasonably competent trial counsel should know to object—absent a valid trial strategy—when a forensic interviewer gives testimony that indicates the witness believes the victim, but does not serve some other valid purpose." Briggs, 806 S.E.2d at 718. All three decisions—Dawkins, Douglas, and Smith—were established law when the PCR hearing occurred in April 2011. App. 616. Thus, the improper bolstering claims—including that regarding Garrett, a forensic interviewer—would have been viable in the state PCR proceedings, yet were not properly raised by PCR counsel.(Doc. 65 at 23). Judge Harwell thus reserved ruling on the Strickland deficiency prong as it relates to PCR counsel, pending "[a]n evidentiary hearing as to PCR counsel's strategy and/or reasons" regarding his "failure to properly raise the improper bolstering claims in the state PCR proceedings" (doc. 65 at 23-24). Further, the undersigned was directed to submit another report and recommendation regarding "the improper bolstering claims . . . and PCR counsel's strategy and/or reasons regarding same" (id. at 26).
It is undisputed that PCR counsel failed to properly raise the claim concerning Dr. Henderson and failed altogether to raise the claims concerning Garrett and the victim's mother. See Mangal II, 805 S.E.2d at 576 (finding the claim concerning Dr. Henderson was procedurally defaulted); Mangal I, 781 S.E.2d at 735-36 (indicating the claims concerning Garrett and the victim's mother "were not raised" in the PCR court). In particular, it is unclear why PCR counsel did not raise the claim regarding Garrett—an expert witness who gave improper bolstering testimony—when he did raise the (albeit untimely) claim regarding Dr. Henderson.
a. Wiley Garrett
PCR counsel Wilkes testified that he has been practicing law since 1989, had handled "a lot" of PCR cases before he represented the petitioner, and has been successful in a number of those other cases (doc. 86 at 58-59). PCR counsel understood that the petitioner would have to prove both error by trial counsel and resulting prejudice in order to prevail under Strickland, and he believed that it was strategically advantageous to narrow the issues in PCR and avoid raising weak claims (id. at 59-60). In order for him to better determine what claims to raise on the petitioner's behalf, before the PCR hearing, he spoke with the petitioner, reviewed the trial transcript, reviewed the records from the direct appeal, and talked with trial counsel Crane and discussed Crane's trial strategy. While he did not recall their conversation because of the passage of time, PCR counsel testified that he would have relied upon the conversation in deciding upon the claims he raised (id. 60-61).
When PCR counsel was retained by the petitioner, the petitioner had already filed the PCR application (doc. 86 at 61). PCR counsel attempted to raise additional claims, including that Dr. Henderson's testimony on direct examination bolstered or vouched for the victim's credibility, by way of a document that he presented to the PCR judge and counsel for the respondent at the outset of the PCR hearing, which was held on April 4, 2011 (id. at 39, 42, 61-63, 65-66). He did not raise any issue of bolstering as to the testimony of Garrett or the victim's mother (id. at 39). Although he attempted to recreate his reasoning process as to why he did not raise claims relating to these two witnesses through his review of the relevant portions of the transcript and Judge Harwell's order, he clearly testified that he did not have any independent recollection of why he did not raise those allegations (id. at 44-47, 49-55, 68-74, 76-77). PCR counsel testified that he believed he might have had strategic reasons for failing to include improper bolstering issues regarding their testimony (doc. 86 at 49-53). He acknowledged that in prior conversations with the petitioner's counsel he had stated that if he missed these things it was clear error (id. at 53).
PCR counsel testified that he believed his strategic reason for not including Garrett's testimony as part of the improper bolstering issue was that it was not "wrong under the law at the time" (doc. 86 at 45). He further indicated that he believed the Supreme Court of South Carolina's decision in State v. Hill "was still allowing that sort of testimony in and holding a tight line saying that, 'Well, the witness did not actually say they believed them or specifically vouch their credibility'" (id. at 45-46). PCR counsel testified that he did not recall Garrett's testimony to be that Garrett believed what the victim said, and thus he "did not see that testimony as crossing the line of Dawkins and any other case" (id. at 48). He believed Dr. Henderson's testimony did cross the line, but not Garrett's (id. at 49). He wished he had put every possible vouching instance in the record: "It would've been so much better. And although unforeseen, it would have been - it would have resulted in very dramatic - dramatically different results. . . . I should've been much more aggressive and included those. . . . I think failure to be very aggressive and add everything in was clearly fatal to my case" (id. at 76).
Assuming PCR counsel was referring to South Carolina v. Hill, 715 S.E.2d 368 (S.C. 2011) in his above-quoted testimony, it is clear that he could not have relied on this case for his decision not to raise the bolstering issue as to Garrett's testimony, because the state PCR hearing was held on April 4, 2011 (app. 568-623), and Hill was decided on July 27, 2011. Nonetheless, as argued by the petitioner, the case does not support PCR counsel's position that Garrett's testimony was not objectionable as improper bolstering (doc. 92 at 25-26). In Hill, the court stated:
[T]he forensic interviewer never addressed the veracity of Victim. He testified only that he saw the types of details in Victim's interview that he would look for to determine whether a child had been coached. He gave no opinion on whether Victim was being truthful, or even that Victim had not, in fact, been coached. Accordingly, we find no reversible error in the admission of this testimony.715 S.E.2d at 376-77 (S.C. App. 2011), overruled on other grounds by State v. Stukes, 787 S.E.2d 480 (S.C. 2016). Here, unlike in Hill, Garrett did address the veracity of the victim by testifying that one of the purposes of forensic interviewing is "to determine whether there's fabrication" (app. 123-24) and that he concluded, based on his forensic interview of the victim, "that her disclosure was [a] clear, consistent, and compelling disclosure of sexual abuse" (app. 130). That testimony is much more similar to the testimony that the Court of Appeals of South Carolina found was improper bolstering in 2000 in State v. Dempsey. In that case, the court found that where a child sexual abuse counselor's testimony included how he determined whether a child was telling the truth, his specific finding that child victim's answers and responses did not include any abnormality that would lead him to believe that child victim was not telling the truth, his testimony that children were being truthful in 95 percent of instances in which sexual abuse was alleged, and his conclusion that child victim in that case was being reliable, constituted improper vouching for the child victim. Dempsey, 532 S.E.2d at 308-09 (citing Dawkins, 377 S.E.2d 298 (testimony of psychiatrist who treated child victim of sexual assault was improper where psychiatrist answered "yes" to solicitor's question of whether, based on his examination and observations of the victim, he was "of the impression that [the victim's] symptoms [were] genuine"); State v. Morgan, 485 S.E.2d 112, 119 (S.C. Ct. App. 1997) ("'We have said before, and we will say it again, this time with emphasis-no psychotherapist may render an opinion on whether a witness is credible in any trial in this state. The assessment of credibility is for the trier of fact and not for psychotherapists.'") (quoting State v. Milbradt, 756 P.2d 620, 624 (Or. 1988))), overruled on other grounds by State v. White, 676 S.E.2d 684 (S.C. 2009)).
The respondent suggests that the Supreme Court of South Carolina's decision in State v. White, 605 S.E.2d 540 (S.C. 2004) supports Wilkes' testimony that, at the time of the petitioner's trial, forensic interviewers were not prohibited from giving the type of testimony now at issue (doc. 96 at 60-61). Importantly, the respondent has previously conceded that Garrett's testimony was "inadmissible under state law if a proper objection had been raised" (doc. 20 at 51; see doc. 65 at 12). Moreover, the testimony in White was different than the testimony at issue here. In White, the court rejected the appellant's argument that a psychotherapist who treated the victim was improperly permitted to testify that "the victim's symptoms were consistent with those of a recent trauma sufferer . . . . " 605 S.E.2d at 544. The court concluded that the psychotherapist's testimony was "consistent with the probative purpose of admitting rape trauma evidence, i.e., to refute the defendant's contention that the sex was consensual and to prove that a sexual offense occurred." Id. Garrett's testimony is similar to that at issue before the Supreme Court of South Carolina in Thompson, in which a forensic interviewer testified that the victim's "interview was ruled compelling for physical abuse, sexual abuse, and psychological abuse" and was "among the most compelling interviews that I've conducted, not only because of the amount of detail that she was able to provide, but also the emotional intensity that she was clearly experiencing in the room, in—in having to provide her disclosure." 814 S.E.2d at 490-91. In Thompson, the court concluded that, well before the trial in 2008, trial counsel "was on notice that it was improper for a witness to vouch for the credibility of another witness. The [testimony of the forensic interviewer] unmistakably conveyed to the jury her belief that Victim was telling the truth about the abuse." Id. at 492. Likewise, here, at the time of the PCR proceedings in 2011, PCR counsel should have been on notice that testimony similar to that provided by Garrett was improper bolstering. See id. at 491 (citing Kromah, 737 S.E.2d 490; Jennings, 716 S.E.2d 91; Smith v. State, 689 S.E.2d 629 (S.C. 2010); Dawkins, 377 S.E.2d at 302; Briggs, 806 S.E.2d at 718; Dempsey, 532 S.E.2d at 308-09).
As the respondent notes (doc. 96 at 15), PCR counsel testified at the evidentiary hearing before the undersigned that it was in his "strategic advantage to narrow the issues for a [c]ourt," and "it can be counterproductive to raise weak issues to a [c]ourt" (doc. 65 at 60). See Jones v. Barnes, 463 U.S. 745, 751-52 (1983) ("Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues"). Counsel was not required to raise all nonfrivolous claims in the PCR proceeding. See Bell v. Smith, 236 F.3d 149, 164 (4th Cir. 2000) (citations omitted). However, as Judge Harwell stated, "In particular, it is unclear why PCR counsel did not raise the claim regarding Garrett—an expert witness who gave improper bolstering testimony—when he did raise the (albeit untimely) claim regarding Dr. Henderson" (doc. 65 at 23). As noted, PCR counsel testified that he "did not see [Garrett's] testimony as crossing the line of Dawkins and any other case"; however, he believed Dr. Henderson's testimony did cross the line (doc. 86 at 48-49). To the extent the respondent contends that PCR counsel's "sound strategy" was to raise the stronger bolstering argument (as to Dr. Henderson) while "winnowing out" the weaker bolstering arguments (as to Garrett and the victim's mother), the undersigned disagrees. As discussed above, PCR counsel's belief that Garrett's testimony was not objectionable was in error. Notably, the respondent in the instant case has conceded that Garrett's testimony was objectionable as bolstering, but has strongly argued that Dr. Henderson's testimony was not objectionable. Further, as the petitioner points out, PCR counsel attempted to raise several issues in the PCR hearing, only one of which regarded the bolstering issue (as to Dr. Henderson) (doc. 92 at 31-32). However, PCR appellate counsel centered the PCR appeal on the bolstering issue with regard to all three witnesses (Garrett, Dr. Henderson, and the victim's mother) and specifically stated:
The crux of the matter is that Petitioner's strongest argument for ineffective assistance of [trial] counsel was the pervasive bolstering by the State of the Prosecutrix. Counsel raised that argument in so cursory a fashion that the hearing judge missed it and ruled that it had not been raised at all. Precedent says that if the judge had ruled on the issue, he would have been compelled to grant [the petitioner] a new trial. . . .(App. 651) (emphasis added). See United States v. Allmendinger, 894 F.3d 121, 126 (4th Cir. 2018) (finding that "appellate counsel may render deficient performance by failing to raise 'issues [that] are clearly stronger than those presented'") (citations omitted).
Based upon the foregoing, it is clear that PCR counsel's failure to raise the issue of Garrett's improper bolstering testimony in the PCR proceedings was not part of a valid strategy. The undersigned finds that the petitioner has met his burden of showing that trial counsel's representation in this regard was objectively unreasonable under prevailing professional norms.
b. Dr. Nancy Henderson
As Judge Harwell stated in his order, "It is undisputed that PCR counsel failed to properly raise the claim concerning Dr. Henderson . . . " (doc. 65 at 23). As set out above, PCR counsel testified at the evidentiary hearing that he attempted to raise additional claims, including that Dr. Henderson's testimony on direct examination bolstered or vouched for the victim's credibility, by way of a document that he presented to the PCR judge and counsel for the respondent at the outset of the PCR hearing (doc. 86 at 39, 42, 61-63, 65-66). The document was submitted and marked for identification as Defense Exhibit 1 at the evidentiary hearing before the undersigned (id. at 65). PCR counsel testified, "I included Dr. Henderson's [testimony], because I believed that it crossed the line with what I understood the case law to be." He acknowledged that he did not raise a claim of bolstering through trial counsel's cross examination of Dr. Henderson (id. at 40). PCR counsel did not file the document with the Clerk of Court and did not formally amend the application, and he acknowledged that he "should have. No question" (id. at 66, 75). He explained that it was his customary practice to try allegations in this manner (id. at 66). As set out above, the PCR judge ruled that the claim was not preserved in the order denying the petitioner's Rule 59(e) motion, and, ultimately, the Supreme Court of South Carolina found that the claim was not preserved for appellate review because it was not timely and sufficiently presented to the PCR judge (id. at 56, 77-78). PCR counsel testified at the evidentiary hearing that he had no strategic reason not to properly preserve the improper bolstering issue concerning Dr. Henderson's testimony (id. at 56).
The exhibit is entitled "Applicant's Additional Evidence" and consists of a seven-page document setting out six issues and listing the evidence supporting each issue, along with copies of the supporting evidence (see def. ex. 1). The bolstering issue regarding Dr. Henderson's direct examination testimony is listed as Issue VI (doc. 86 at 65; see def. ex. 1).
Following the evidentiary hearing in this case, the respondent agreed to stipulate that Defense Exhibit 1 is not included in the Spartanburg Clerk of Court's PCR record (docs. 88, 89).
Based upon the foregoing, it is clear that PCR counsel's failure to properly raise the issue of Dr. Henderson's improper bolstering testimony was not part of a valid strategy. The undersigned finds that the petitioner has met his burden of showing that PCR counsel's representation in this regard was objectively unreasonable under prevailing professional norms.
c. Victim's Mother
In the evidentiary hearing before the undersigned, PCR counsel testified that he did not recall making a conscious decision not to raise the issue of bolstering as to the victim's mother's testimony (doc. 86 at 50). However, he believed he did not raise it because trial counsel Crane asked the questions that led to the allegedly bolstering testimony (id. at 51-52). He explained that he did not think defense attorneys were prohibited from asking a witness whether they believed the victim (id. at 52). He specifically agreed that, if the prosecutor had asked these same questions on direct (or on cross if it was not raised on direct), "there would clearly be a problem," and he would have preserved this issue (id. at 54-55).
It is clear from the record that the prosecutor asked the relevant questions on cross examination of the victim's mother (see app. 314). The prosecutor pointedly asked the victim's mother whether she believed the victim when she revealed that her father had been sexually abusing her, and the victim's mother responded that she did. In response to further questioning, she testified to her reasons for believing the victim: "She had ... no reason to lie about something like that. ... [I]f anybody could of seen the level of how distraught she was, the look in her eyes, the begging, please help me, that's why I believed her" (id.). The respondent argues that any bolstering in the State's cross examination of the victim's mother was appropriate (and thus PCR counsel's representation could not be objectively unreasonable in failing to raise the issue) because the victim's mother's testimony on direct examination "was to the effect that she believed her daughter's accusations" (doc. 96 at 73). The respondent also argues that improper bolstering only occurs when a party elicits evidence that bolsters the credibility of another witness called by that party (id. at 67). As discussed above, Judge Harwell previously rejected both of these arguments (doc. 65 at 19).
Based upon the foregoing, it is clear that PCR counsel's failure to raise the issue of the victim's mother's improper bolstering testimony was not part of a valid strategy. The undersigned finds that the petitioner has met his burden of showing that PCR counsel's representation in this regard was objectively unreasonable under prevailing professional norms.
2. Strickland Prejudice Prong
The Strickland prejudice prong requires the petitioner to show a reasonable probability that but for PCR counsel's deficient performance, the result of the state PCR proceedings would have been different. Juniper v. Zook, 117 F. Supp.3d 780, 790 (E.D. Va. 2015); Runningeagle v. Ryan, 825 F.3d 970, 982 (9th Cir. 2016). As pointed out by Judge Harwell, "This analysis largely hinges on whether the underlying ineffective-assistance-of-trial-counsel claims would have been successful; in other words, the prejudice analysis for PCR counsel dovetails with the Strickland analysis for trial counsel" (doc. 65 at 24) (citing Juniper, 117 F. Supp. 3d at 790). As discussed above, the undersigned finds that the petitioner's underlying ineffective assistance of trial counsel claim is substantial. The undersigned further finds that the petitioner has shown a reasonable probability that had PCR counsel properly raised the bolstering claims the result of the PCR proceedings would have been different.
Indeed, as discussed above, the Court of Appeals of South Carolina, which found that the issue of bolstering was raised with regard to Dr. Henderson's testimony, found that trial counsel's failure to object constituted deficient performance and that the petitioner was prejudiced by counsel's error as "the case lacked physical evidence and hinged on credibility." Mangal I, 781 S.E.2d at 737. In Mangal II, the Supreme Court of South Carolina's reversed that decision, find that the PCR court acted within its discretion in refusing to address the issue and further found that this was "not an appropriate case to excuse Mangal from his procedural default." 805 S.E.2d at 576.
Based upon the foregoing, the undersigned concludes that, pursuant to Martinez, the petitioner has shown that his claims of ineffective assistance of trial counsel are substantial and that his PCR counsel was ineffective in failing to properly raise the issues in the state habeas proceedings. Accordingly, cause and prejudice exists to excuse the petitioner's procedural default of the improper bolstering claims alleged in Ground Two, and the district court should thus consider the merits of the petitioner's otherwise defaulted ineffective assistance of trial counsel claims. See Martinez, 566 U.S. at 17.
V. MERITS REVIEW
The respondent argues that the court's consideration of evidence presented at the federal evidentiary hearing is limited to the examination of whether the petitioner can show cause for and prejudice resulting from the procedural default under Martinez (doc. 96 at 23-26). The respondent relies on the case of Fielder v. Stevenson in which the Honorable J. Michelle Childs, United States District Judge for the District of South Carolina, considered the respondent's motion to strike an affidavit that a Section 2254 petitioner submitted in response to the respondent's motion for summary judgment. C.A. No. 2:12-cv-412-JMC, 2013 WL 593657, at *3 (D.S.C. Feb. 14, 2013). Judge Childs noted that Section 2254(e)(2) "sets limits on a petitioner's ability to expand the record in a federal habeas proceeding" and specifically provides:
[I]f a petitioner has failed to diligently develop his evidence in state court, he may present the evidence in a federal habeas court only if his claim relies on "(1) a new rule of constitutional law, made retroactive to cases on collateral review ... that was previously unavailable; or (2) a factual predicate that could not have been previously discovered through the exercise of due diligence."Id. (quoting 28 U.S.C. § 2254(e)(2)). Judge Childs further noted that "courts have held that § 2254(e)(2) does not similarly constrain the court's discretion to expand the record to establish cause and prejudice to excuse a petitioner's procedural defaults." Id. (citations omitted). The court noted that "Martinez does not directly provide the authority for a petitioner to expand the record in order to further develop facts that could have been presented in the state court proceeding." Id. at *4 (citations omitted). Judge Childs determined that the affidavit at issue presented evidence in support of the claim that PCR was ineffective and thus caused the petitioner to default, but the affidavit also presented evidence "regarding the shooting [in the underlying case] which could have been presented in the state proceeding and which could also impact any analysis on the underlying ineffective assistance of counsel claim." Id. The court granted the motion to strike the affidavit, concluding as follows:
Such facts [alleged in the affidavit] could serve to strengthen the underlying ineffective-assistance-of-counsel claim, thereby strengthening Petitioner's argument that he suffered prejudice as a result of PCR counsel's performance. Allowing Petitioner's unchallenged statements to be considered at this point would constitute an end run around the general rule that evidence supporting an ineffective-assistance-of-counsel claim should be presented in the state court tasked with adjudicating that issue.Id. at *5.
The respondent urges the court to follow Fielder and other nonbinding authority and argues that the court may not consider the evidence presented in the evidentiary hearing in considering the merits of the underlying defaulted claims of ineffective assistance of trial counsel (doc. 96 at 23-26). Here, unlike in Fielder, the district court concluded that an evidentiary hearing was necessary on the Strickland deficiency prong as it relates to the performance of both trial and PCR counsel in the petitioner's Martinez claims (doc. 65 at 24) (citing Schriro v. Landrigan, 550 U.S. 465, 468 (2007) ("In cases where an applicant for federal habeas relief is not barred from obtaining an evidentiary hearing by 28 U.S.C. § 2254(e)(2), the decision to grant such a hearing rests in the discretion of the district court."); Martinez, 566 U.S. at 14 (explaining a court may "hear" the procedurally defaulted claim "as an equitable matter"); Gray, 806 F.3d at 789 (explaining a federal court considers a Martinez claim de novo); Segundo v. Davis, 831 F.3d 345, 351 (5th Cir. 2016) (discussing evidentiary hearings in the context of Martinez); see, e.g., Teleguz, 806 F.3d at 806-07, 820 (hearing an appeal from a district court that had allowed testimony on a Martinez claim); Stokes v. Stirling, C.A. No. 1:16-cv-00845-RBH, 2018 WL 4678578, at *3 (D.S.C. Sept. 28, 2018) (involving an "evidentiary hearing on the Martinez claims"); Belmar v. Clarke, C.A. No. 3:16CV455, 2018 WL 1568680, at *1 (E.D. Va. Mar. 30, 2018) (explaining the court had held an evidentiary hearing on a Martinez claim because the petitioner had "sufficient preliminary showing")).
The Court of Appeals for the Ninth Circuit recently addressed this exact issue and concluded:
We hold that 28 U.S.C. § 2254(e)(2), which precludes evidentiary hearings on claims that were not developed in state court proceedings, did not prohibit the district court from considering the evidence adduced at the Martinez hearing to determine the merits of [the petitioner's] underlying [ineffective assistance of counsel] claim. When a district court holds an evidentiary hearing to determine whether a petitioner's claim is excused from procedural default under Martinez, it may consider that same evidence to grant habeas relief on the underlying claim.Jones v. Shinn, No. 18-99006, 2019 WL 6442931, at *2 (9th Cir. Nov. 29, 2019). The court reasoned as follows:
As we have previously recognized and now explicitly hold, Martinez's procedural-default exception applies to merits review, allowing federal habeas courts to consider evidence not previously presented to the state court. The Supreme Court explained in Martinez that if the prisoner's state court attorney is ineffective, "the prisoner has been denied fair process and the opportunity to comply with the State's procedures and obtain an adjudication on the merits of his claims." 566 U.S. at 11, 132 S. Ct. 1309. The Court's concern was with the prisoner's opportunity to "vindicat[e] a substantial ineffective-assistance-of-trial-counsel claim," a claim which "often depend[s] on evidence outside the trial record." Id. at 11, 13, 132 S. Ct. 1309. The Court held that the federal habeas court may hear a claim of ineffective assistance of trial counsel where the initial state collateral proceeding "may not have been sufficient to ensure that proper consideration was given to a substantial claim." Id. at 14, 132 S. Ct. 1309.
In Detrich v. Ryan, 740 F.3d 1237 (9th Cir. 2013) (en banc), which did not produce a majority opinion, a four-judge plurality held that Martinez recognized that determining "whether there has been IAC often requires factual development in a collateral proceeding." Id. at 1246 (W. Fletcher, J., plurality). Determining whether counsel's performance was deficient often requires asking the attorney to state the strategic or tactical reasons for his actions, and determining prejudice often requires discovery and an evidentiary hearing to assess the effect of the deficient performance. Id. at 1246-47. As the district court explained in
denying the State's motion to stay,
[I]t is simply illogical, and extraordinarily burdensome to the courts and the litigants, in a post-Martinez world, for a court to allow full evidentiary development and hearing on the Martinez "claim," but not allow consideration of that very same evidence as to the merits of the underlying trial-counsel IAC claim because his constitutionally ineffective PCR counsel failed to raise that claim.
Jones v. Ryan, 2018 WL 5066494, at *4.
While the Supreme Court held in Cullen v. Pinholster that a federal habeas court is ordinarily confined to the evidentiary record from state court, it held that the court was limited to "the record that was before the state court that adjudicated the claim on the merits." 563 U.S. 170, 180, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) (emphasis added). Because the underlying claim in a Martinez case has not been adjudicated on the merits in a state-court proceeding, "Martinez would be a dead letter if a prisoner's only opportunity to develop the factual record of his state PCR counsel's ineffectiveness had been in state PCR proceedings, where the same ineffective counsel represented him." Detrich [v. Ryan, 740 F.3d 1237, 1247 (9th Cir. 2013)]. We have explained that "Martinez may provide a means to show 'cause' to overcome the default and reach the merits of the new claim." Dickens v. Ryan, 740 F.3d 1302, 1321 (9th Cir. 2014). The Supreme Court in Martinez recognized that "[c]laims of ineffective assistance at trial often require investigative work." 566 U.S. at 11, 132 S.Ct. 1309. Courts may require expanded records to reach the merits of these claims.
Other courts have reached the same conclusion as our four-judge plurality from Detrich. The Eighth Circuit held that Martinez provided an exception to § 2254(e)(2) in Sasser v. Hobbs, 735 F.3d 833, 853-54 (8th Cir. 2013). The Fifth Circuit has also noted that if the district court found cause and prejudice for the procedural default of any claim, "[i]t should then revisit the merits of any such claim anew," and its cause and prejudice findings "may directly address its merits determination of certain elements of that claim." Barrientes v. Johnson, 221 F.3d 741, 771, 771 n. 21 (5th Cir. 2000). See also Woods v. Sinclair, 764 F.3d 1109, 1138 (9th Cir. 2014) (citing the four-judge plurality from Detrich and remanding to the district court to determine whether defendant's IAC claims were substantial and whether PCR counsel was ineffective for
failing to raise them, potentially with an evidentiary hearing and an opportunity to expand the record).Id. at *7-8 (footnote omitted). See Belmar, 2018 WL 1568680, at *2-11 (considering evidence developed in hearing on Martinez claims in ruling on the merits of underlying ineffective assistance of trial counsel claim). The undersigned recommends that the district court likewise find that the evidence developed in the hearing before the undersigned may be considered in adjudicating the underlying ineffective assistance of trial counsel claims on de novo review.
We conclude that 28 U.S.C. § 2254(e)(2) does not prevent a district court from considering new evidence, developed to overcome a procedural default under Martinez v. Ryan, when adjudicating the underlying claim on de novo review.
As discussed, the undersigned finds that the petitioner has met his burden under Martinez of showing both that his underlying ineffective assistance of trial counsel claims have merit under the standards of Strickland and that his PCR counsel was ineffective under the standards of Strickland in failing to properly raise the bolstering issues in the state habeas proceeding. As the United States District Court for the Eastern District of Virginia has observed:
Although Martinez separates the first and second elements, the two blend together. Specifically, the prejudice prong for habeas-level ineffectiveness requires a consideration of the merits of the underlying trial-level ineffectiveness claim, because Strickland prejudice requires consideration of "whether it is 'reasonably likely' the result would have been different" in that proceeding. Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052). In reviewing a Martinez claim, a court asks whether the state-level habeas proceeding would have come to a different result if habeas counsel brought forward the trial-level ineffectiveness claim. "Thus, the facts that bear on the Strickland prejudice analysis and the Martinez substantiality analysis will largely be the same," because both questions ask a court to consider the merits of that underlying claim. Teleguz v. Davis, No. 7:10-cv-254, 2014 WL 3548982, at *24 (W.D. Va. July 17, 2014). Somewhat circuitously, therefore, the Martinez exception to the procedural-default bar includes within it consideration of the merits of the procedurally defaulted
claim.Juniper, 117 F. Supp.3d at 790. For the reasons set forth at length above, the petitioner has shown that his trial counsel's performance fell below an objective standard of reasonableness by failing to object to and by eliciting improper bolstering testimony with regard to witnesses Garrett, Dr. Henderson, and the victim's mother. Moreover, the petitioner has shown that there is a reasonable probability that, but for his trial counsel's unprofessional errors, the result of the trial would have been different. Strickland, 466 U.S. at 694. Accordingly, for the reasons discussed above, the undersigned recommends that the district court grant the petitioner relief on the improper bolstering claims raised in Ground Two.
VI. CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, the undersigned recommends that the district court deny the respondent's motion for summary judgment and grant the petitioner's habeas petition as to the improper bolstering claims raised in Ground Two.
IT IS SO RECOMMENDED.
s/Kevin F. McDonald
United States Magistrate Judge December 18, 2019
Greenville, South Carolina
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).