Opinion
C/A No. 0:16-cv-2512-TLW-PJG
01-12-2018
Freddie Owens, Petitioner, v. Bryan P. Stirling, Commissioner, South Carolina Department of Corrections, Joseph McFadden, Warden, Lieber Correctional Institution, Respondents.
REPORT AND RECOMMENDATION
DEATH PENALTY HABEAS CORPUS PETITION
Petitioner Freddie Owens, a death-sentenced state prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter comes before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the respondents' second motion for summary judgment (ECF Nos. 147 & 148) and the petitioner's motion for a hearing (ECF No. 164), and the petitioner's motion to stay (ECF No. 186). All motions have been fully briefed. (See ECF Nos. 166, 174, 175, 184, 189, 190.) Having carefully considered the parties' submissions and the record in this case, the court concludes that the respondents' motion for summary judgment should be granted and Owens's Petition and motion for hearing should be denied. Additionally, the court denies Owens's motion for an evidentiary hearing (ECF No. 164) and recommends denying Owens's motion to stay (ECF No. 186).
BACKGROUND
Owens was convicted of murdering a convenience store clerk, Irene Graves, during an armed robbery. After the guilty verdict but before the sentencing phase began, Owens killed his cell mate at the Greenville County Detention Center, Christopher Lee. The jury sentenced Owens to death for Graves's murder. Following an appeal in which the South Carolina Supreme Court vacated his death sentence, a circuit court judge again sentenced him to death. The state supreme court again reversed. After a third sentencing hearing, a jury again imposed the death penalty. The South Carolina Supreme Court affirmed. Following two rounds of proceedings seeking post-conviction relief, Owens now seeks a writ of habeas corpus from this court.
PROCEDURAL HISTORY
Owens was indicted in October 1998 in Greenville County for armed robbery, murder and possession of a firearm during the commission of a violent crime, and criminal conspiracy (1998-GS-23-5218, -5220, -5223). (ROA1 at 1-6, ECF No. 14-6 at 7-12.) The State issued a notice of intent to seek the death penalty in March 1998. (ROA1 at 7, ECF No. 14-6 at 13.) Owens was represented by John M. Rollins, Esquire, and Karl B. Allen, Esquire, in a jury trial that began on February 8, 1998. (ROA1 at 498-99, ECF No. 14-7 at 7-8.) On February 15, 1998, the jury found Owens guilty as charged. (ROA1 at 3001-06, ECF No. 15-2 at 47-52.) Following a sentencing proceeding, the jury recommended a sentence of death as to the murder conviction, finding the aggravating circumstance that the murder was committed while in the commission of a robbery while armed with a deadly weapon. (ROA1 at 3320, ECF No. 15-2 at 366.) The circuit court sentenced Owens to death for murder, thirty years' imprisonment for armed robbery, five years' imprisonment for possession of a weapon during a violent crime, and five years' imprisonment for criminal conspiracy, the armed robbery sentence to be served consecutively to the death sentence, and the others to be served concurrently. (ROA1 at 3329-31, ECF No. 15-2 at 375-77.)
This is the Record on Appeal from the first trial, which included both a guilt phase and a sentencing phase. The court uses ROA2 to cite to the Record on Appeal from the second trial, which only included a sentencing phase. The Record on Appeal from the third trial, which similarly only included a sentencing phase, was not filed separately with this court but was included as part of the Appendix from the appeal of Owens's post-conviction relief action.
First Direct Appeal
Owens timely appealed and was represented by trial counsel and Katherine Carruth Link, Assistant Appellate Defender with the South Carolina Office of Appellate Defense, who filed a final brief on Owens's behalf raising various issues relating to the trial court's jurisdiction, evidentiary rulings, the denial of a new trial, and sentencing. (Final Br. of Appellant at i, ECF No. 14-1 at 2.)
On September 4, 2001, the South Carolina Supreme Court affirmed Owens's convictions, vacated his sentence for possession of a firearm during the commission of a violent crime, reversed his death sentence, and remanded the case for a new sentencing proceeding. State v. Owens, 552 S.E.2d 745 (S.C. 2001); (ECF No. 14-4).
Second Sentencing Proceeding and Appeal
On remand Owens was represented by Alex Kinlaw, Jr., Esquire, and Steven Sumner, Esquire. (ROA2 at 88, ECF No. 15-7 at 91.) In his second sentencing proceeding, Owens elected a bench trial rather than a jury trial. (ROA2 at 31-36, ECF No. 15-7 at 34-39; ROA2 at 77-86, ECF No. 15-7 at 80-89; ROA2 at 95, ECF No. 15-7 at 98.) Following the sentencing proceeding, Owens was sentenced to death. (ROA2 at 521-23, ECF No. 15-8 at 25-27.) In an opinion issued on December 20, 2004, the South Carolina Supreme Court again reversed Owens's death sentence, and the case was remanded for a third sentencing proceeding. State v. Owens, 607 S.E.2d 78 (S.C. 2004); (ECF No. 15-5).
Third Sentencing Proceeding
In his third sentencing proceeding, which began on September 28, 2006, Owens was represented by E.P. "Bill" Godfrey, Esquire, and Ken Gibson, Esquire. (App. at 1, ECF No. 16-1 at 4.) Following the presentation of evidence, a jury sentenced Owens to death for murder, finding the aggravating circumstances that the murder was committed while in the commission of a robbery while armed with a deadly weapon and that the murder was committed while in the commission of a larceny with the use of a deadly weapon. (App. at 1608-11, ECF No. 16-4 at 193-96.)
The grounds raised in this habeas corpus action all concern Owens's third sentencing proceeding. Most of the grounds allege ineffective assistance of counsel by Godfrey and Gibson at Owens's third sentencing proceeding. To distinguish Godfrey and Gibson from the other sets of counsel that represented Owens at his various trial proceedings (both guilt and sentencing), the court will refer herein to Godfrey and Gibson as "sentencing counsel." However, the court notes that the state post-conviction relief court referred to Godfrey and Gibson as "trial counsel." Additionally, in the applicable case law, attorneys who represent a defendant at the trial stage are also oftentimes described as "trial counsel." The court has not changed the references to "trial counsel" in those sources. Thus, for purposes of this report and recommendation, references to Owens's "sentencing counsel" or "trial counsel" should be construed as relating to Gibson and Godfrey unless otherwise specified.
Third Direct Appeal
In a timely filed appeal to the South Carolina Supreme Court, Owens was represented by Joseph L. Savitz, III, Chief Appellate Defender, and Lanelle C. Durant, Appellate Defender, both with the South Carolina Commission on Indigent Defense, Division of Appellate Defense. (ECF No. 16-4.) In a final brief filed on Owens's behalf, appellate counsel raised the following issues:
1. The trial judge abused his discretion when he summarily disqualified a potential juror, Sonya Ables (Juror Number 1), solely because she "went to [her] pastor and talked to him about [the death penalty]," as he incorrectly believed "there is a case right on point, that if a woman talks to her priest after she's been called as a juror about capital punishment, she is disqualified under the law."
2. The trial judge committed reversible error by admitting Owens' prison disciplinary records, as they violated the rule against hearsay, as well as the Sixth and Fourteenth Amendments.(App. at 1689, ECF No. 16-4 at 222.) On July 14, 2008, the South Carolina Supreme Court issued an opinion affirming Owens's death sentence. (App. at 1780-84, ECF No. 16-4 at 313-17.) Appellate counsel submitted a petition for rehearing, (App. at 1785-86, ECF No. 16-4 at 318-19), which was denied on August 8, 2008 (App. at 1787, ECF No. 16-4 at 320).
3. The trial judge committed reversible error by allowing the Solicitor to argue in closing that the conditions of life imprisonment in general justified a death sentence for Owens, as this argument injected an arbitrary factor into the jury sentencing considerations in violation of S.C. Code Section 16-3-25(C)(1).
Petition for Writ of Certiorari in the United States Supreme Court
On November 5, 2008, Owens, represented by John H. Blume, Esquire, and Keir M. Weyble, Esquire, filed a petition for writ of certiorari in the United States Supreme Court, presenting the following question:
Whether the South Carolina Supreme Court's holding that Petitioner's Confrontation Clause challenge to the admission of testimonial hearsay contained in prison disciplinary records was procedurally barred is an adequate and independent state ground given that A) trial counsel objected and challenged the trustworthiness and reliability of the evidence, which are the precise values embodied the Confrontation Clause; and B) the trial court clearly understood that counsel's objection raised a federal constitutional issue.(App. at 1789, ECF No. 16-4 at 322.) The Court denied the petition on January 21, 2009. (App. at 1863, ECF No. 16-4 at 396.)
First Post-Conviction Relief Action
Owens filed a pro se application for post-conviction relief ("PCR") on January 29, 2009. (Owens v. State of South Carolina, 2009-CP-23-1741; App. at 1864-68, ECF No. 16-4 at 397-401.) Subsequently, Weyble and Emily C. Paavola, Esquire, were appointed to represent Owens in the PCR proceeding, and they filed an amended petition on his behalf. (Owens v. State of South Carolina, 2009-CP-23-1741; App. at 1869-74, ECF No. 16-4 at 402-07). The State filed a return on April 2, 2009. (App. at 1885-1945, ECF No. 16-5 at 9-69.) Through Weyble and Paavola, Owens filed a second amended application for post-conviction relief on June 15, 2010, raising the following claims:
10(a): Applicant was denied the right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, §§ 3 and 14 of the South Carolina Constitution during jury selection at his 2006 capital re-sentencing proceeding.
11(a): Supporting Facts: Trial counsel's performance during jury selection was both deficient and prejudicial. See Strickland v. Washington, 466 U.S. 668 (1984). Counsel's acts or omissions included the following:
1) Counsel failed to object to statements by the solicitor, and similar instructions by the trial court, that the State may only seek death where aggravating circumstances are present, which improperly suggested to potential jurors that the aggravating circumstances had already been found.
2) Counsel failed to object when the trial judge erred by disqualifying a potential juror, Sonya Ables (Juror Number 1), solely because she "went to [her] pastor and talked to him about [the death penalty]," as the trial judge incorrectly believed "there is a case right on point, that if a woman talks to her priest after she's been called as a juror about capital punishment, she is disqualified under the law."
10(b): Applicant was denied the right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, §§ 3 and 14 of the South Carolina Constitution, during his 2006 capital sentencing proceeding.
11(b): Supporting facts: Trial counsel's performance during the sentencing phase was both deficient and prejudicial. See Strickland v. Washington, 466 U.S. 668 (1984). Counsel's acts or omissions included the following:
1) Counsel failed to object and/or request proper instructions from the court when the State played a crime scene video without further explanation or analysis. 2006 Tr. at 1076. The crime scene video
shows two masked men, but their faces are not identifiable. One of the masked men is primarily shown in the video. He stands behind the counter, points a gun at the clerk, and appears to shoot the clerk before the two men run out of the convenience store. Applicant's co-defendant, Steven Golden, testified at Applicant's previous trials that it was he (Golden) who is primarily visible in the video. The State then offered an analysis as to why it believed the fatal shot came from the other man standing off-camera. The jury at Applicant's 2006 re-sentencing heard no analysis about who appears in the video. They were simply instructed that Applicant had already been found guilty of murder, and then they were shown the video without explanation. The trial judge at the 2006 re-sentencing instructed the jurors that they could consider whether Applicant had "minor participation" in the crime as a mitigating circumstance. 2006 Tr. at 1592. But, without further instruction, the video misled the jury to believe that there was conclusive video-graphic evidence that Applicant fired the fatal shot, thereby foreclosing consideration of both the "minor participation" mitigating circumstance, and the related possibility that Applicant, though perhaps present, had not been the triggerman.
2) Counsel failed to object to improper and prejudicial opinion testimony from Officer Joe Wood that Applicant gave him "cold chills," and the solicitor's reliance on that testimony in closing argument. 2006 Tr. at 1093 and 1559.
3) Counsel failed to object to victim impact testimony regarding the effect of the victim's death on the victim outreach coordinator. 2006 Tr. at 1274. Such testimony was outside the scope of proper victim impact evidence, and counsel's failure to lodge an appropriate objection was unreasonable and prejudicial. Counsel also failed to object to hearsay testimony from the victim outreach coordinator concerning statements that the victim's children made to her after the victim's death. 2006 Tr. at 1268-1271. These statements violated the evidentiary rules of South Carolina, as well as the confrontation and the due process clauses of the state and federal constitutions.
4) Counsel failed to preserve the state and federal constitutional issues related to the admission of a list of disciplinary infractions by failing to object on the basis of the Confrontation Clause and due process. On appeal, the South Carolina Supreme Court held that counsel's objection was inadequate to preserve the federal constitutional issues and thus, the issue was procedurally barred. See State v. Stone, 655 S.E.2d 487, 488-89 (S.C. 2007). Counsel's failure to lodge an appropriate objection was deficient and prejudicial.
5) Counsel failed to present readily available mitigating evidence that had already been developed at Applicant's previous trial and first re-sentencing proceeding. Ms. Marjorie Hammock previously testified in much greater detail to Applicant's life history and background. Further, Dr. Jim Evans previously testified that Applicant has brain dysfunction and difficulties with attention and impulse control. Counsel failed to have Ms. Hammock testify to all of the details that were available concerning Applicant's life history, and counsel failed to call Dr. Evans to testify at all.
6) Counsel failed to investigate and present mitigating evidence of Applicant's experiences while incarcerated in the Department of Juvenile Justice, and the impact of those experiences upon his character, conduct, and psychological condition.
7) Counsel failed to ensure that jurors did not see Applicant in restraints.
8) Counsel failed to object to the solicitor's improper and prejudicial closing argument. For example, counsel failed to object to the solicitor's statements that the prosecution seeks death only rarely, even in eligible cases, and this case was one of those rare cases: "Only limited circumstances are allowed for us to seek the death penalty, and rarely do we seek the death penalty in all those cases that are eligible. In only certain cases do we seek the death penalty." 2006 Tr. at 1552; see also, 2006 Tr. at 1555 ("There are mean and evil people in the world who do not deserve to continue to live with the rest of us, regardless of how confined they may be. The law limits the right to seek the death penalty to a very select number of cases, very few, and we seek the death penalty only in a few, but the circumstances where we seek it is available mean and evil people who commit atrocious acts of murder; the worst of the worst. That is what the death penalty is reserved for. Those whose behavior sets them apart even from the criminal world, and that is Freddie Owens, and this murder and his behavior are one of those cases"). Counsel further failed to object when the solicitor argued that the jury should sentence Applicant to death because his life would be easy in prison. See, e.g., 2006 Tr. at 1561 ("[b]ig prison is like a little city. In prison he will have all the necessities in life. . . . He will have clothing that they provide, and he will have contact with his family, and TV at times, and he will have family business. Not much more than a change of address for Freddie Owens. So don't think putting Freddie Owens in prison for the rest of his life is going to be a significant punishment for him"). Counsel also failed to object when the solicitor told the jury that he personally wanted the death penalty and would not be "satisfied with a life sentence." 2006 Tr. at 1555.
Counsel thus failed to preserve for appeal whether the improper arguments violated the Sixth, Eighth and Fourteenth Amendments and the corresponding provisions of the South Carolina Constitution and South Carolina law, including S.C. Code Ann. § 16-3-25(C) (2003).
(Owens v. State of South Carolina, 2009-CP-23-1741; App. at 1876-82, ECF No. 16-4 at 409 & ECF No. 16-5 at 1-6 (footnote omitted; alterations in original)). On July 19-20, 2010, an evidentiary hearing was held before the Honorable Edward W. Miller, South Carolina Circuit Court judge. The following witnesses testified: Joey Savitz, Kenneth Gibson, Bill Godfrey, Jill Rider, James Garbarino, Drucy Glass, John Rollins, Steve Sumner, Robert Ariail, Donna Schwartz-Watts, and Tora Brawley. (App. at 1946-2312, ECF No. 16-5 at 70-84 & ECF No. 16-6 at 4-355.) By order filed February 13, 2013, the PCR court denied and dismissed with prejudice Owens's PCR application. (App. at 3567-97, ECF No. 16-14 at 140-70.)
10(c): Applicant's death sentence was obtained in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and the corresponding provisions of South Carolina law, because the jurors saw Applicant in restraints.
11(c): The above ground states the relevant facts.
10(d): Applicant was denied the right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, §§ 3 and 14 of the South Carolina Constitution, during the appellate phase of his 2006 re-sentencing proceeding.
11(d): Supporting facts: Appellate counsel's performance on appeal was both deficient and prejudicial. See Strickland v. Washington, 466 U.S. 668 (1984); Evitts v. Lucey, 469 U.S. 387 (1985). Appellate counsel failed to assert that it was error for the trial court to deny Applicant's request to ask potential jurors if they would have a bias in favor of police officers because of their previous work in that field.
Thereafter, PCR counsel filed a motion to alter or amend the judgment. (App. at 3598-3605, ECF No. 16-14 at 171-78.) That motion was denied by an order filed April 10, 2013. (App. at 3607-08, ECF No. 16-14 at 180-81.)
First PCR Appeal
On appeal, Owens continued to be represented by Weyble and Paavola, who filed a petition for a writ of certiorari that presented the following issues:
I. Whether Petitioner's right to effective assistance of counsel was violated as a result of trial counsel's failure to investigate and present available and compelling mitigating evidence from Petitioner's entire life history?(ECF No. 15-9.) The State filed a return to the petition for writ of certiorari. (ECF No. 15-10.) Owens then filed a reply. (ECF No. 15-12.) On June 17, 2015, the South Carolina Supreme Court issued an order denying Owens's petition for a writ of certiorari. (ECF No. 15-13.) Owens filed a petition for rehearing, (ECF No. 15-14), which was denied on July 23, 2015 (ECF No. 15-15). The remittitur was issued on July 23, 2015. (ECF No. 15-16.)
II. Whether Petitioner's right to effective assistance of counsel was violated as a result of trial counsel's failure to raise readily available challenges to a variety of evidence offered by the prosecution in support of its case for a sentence of death?
III. Whether Petitioner's rights under the Eighth and Fourteenth Amendments and S.C. Code Ann. § 16-3-25(C)(1) were violated as a result of the prosecutions' improper closing argument and improper statements during jury selection, and whether Petitioner's right to effective assistance of counsel was violated as a result of trial counsel's failure to object to the same?
IV. Whether Petitioner was prejudiced as a result of the cumulative effect of trial counsel's multiple deficient acts and omissions?
Federal Habeas Corpus
The instant action commenced on July 27, 2015. (ECF Nos. 1 & 2.) On July 11, 2016, Owens filed a Petition for writ of habeas corpus. (ECF No. 83.) Owens then filed a motion to stay this action while he pursued various unexhausted claims in state court. (ECF No. 93.) On September 8, 2016, Owens filed an amended Petition for writ of habeas corpus. (ECF No. 117.) This case was stayed on October 18, 2016. (ECF No. 124.) The stay was lifted on April 27, 2017. (ECF No. 146.)
Second PCR Action
On July 20, 2016, Owens filed a PCR application in state court alleging the following grounds for relief:
(a) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to investigate, develop and present evidence of institutional negligence which would have mitigated the State's theory that the in-custody death of Mr. Lee conclusively established future dangerousness and the only sentencing option for the petitioner was death. Evidence from expert witnesses available at the time of the petitioner's sentencing trial demonstrated that institutional negligence in failing to classify, and detain the petitioner in accordance with that classification, was the proximate cause of the death of Mr. Lee. 5th, 6th, 8th and 15th Amendments to the Constitution of the United States of America; Skipper v South Carolina, 476 US 1 (1986).
(b) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to investigate, develop and present objective and scientific evidence of structural and functional brain damage resulting from early childhood trauma and materially limiting the applicant's ability to make informed decisions, learn from past behavior, and control impulses resulting from recurrence of situation prompts in daily living which were the same or similar to those of his early childhood. 5th, 6th, 8th, and 14th Amendments to the Constitution of the United States of America; Wiggins v Smith, 539 US 510 (2003).
(c) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to investigate, develop and present objective and scientific evidence of structural and functional brain damage resulting from a history of epileptic grand mal seizures and its impact upon the applicant's cognitive
functioning and resulting culpability for the crime of conviction. All in violation of the Fifth, Sixth, Eighth, Fourteenth Amendments to the Constitution of the United States of America; and clearly established federal law as announced by the Supreme Court of the United States in Wiggins v Smith, 539 US 510 (2003).
(d) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to object to the court's recurring jury charge that a finding of life without parole must be unanimous when that charge was not in the sentencing statute, was false, materially misleading, coercive, abusive and irrelevant to the sentencing function. (5th, 6th 8th and 14th Amendments to the Constitution of the United States of America; (Winkler v South Carolina not yet decided)
(e) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to investigate, develop and present mitigation evidence that the applicant suffered from repeated early childhood trauma and sexual abuse. These abusive experiences resulted in organic brain injury, ambiguous sexual identity, and created within the applicant a sensitivity to common adult situational prompts that, in his case, lead to a recurrence of the earlier trauma and extreme preemptive fear aggression as the only behavioral response known to the applicant. 5th, 6th, 8th, and 14th Amendments to the Constitution of the United States of America; Rompilla v Beard, 545 US 374 (2005).
(f) Trial, direct appellate and collateral counsel were ineffective to the prejudice of the applicant by failing to include as reversible error an objection to the trial court's decision to allow testimony of in-custody administrative rules violations as aggravation evidence supporting a sentence of death when those violations were disproportionate to the crime for which the jury was sentencing the petitioner, did not result in injury, were in part administrative violations common to every inmate and were not characterological of the petitioner's propensity for future violence.
(g) Trial counsel duly requested that the State disclose all evidence which might be favorable to the defense. Nonetheless, the State failed to disclose evidence that impeaches material witnesses against the applicant in violation of the Fifth, Eighth and Fourteenth Amendments to the Constitution of the United States of America; Brady v Maryland, 373 US 83 (1963) and Wearry v Cain, 136 S. Ct. 1002 (2016). Collateral counsel were ineffective to the prejudice of the applicant in failing to recognize that the State did not disclose material items that would have substantially improved the mitigation case and changed cross-examination tactics had the materials been timely disclosed.
(h) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to challenge the State's decision to seek the death penalty as the decision was motivated by arbitrary factors since the crime was disproportionate to the rare and exceptional case as required by the narrowing features of Furman v Georgia and Gregg v Georgia and the Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States of America.(Owens v. State of South Carolina, 2016-CP-23-4384; ECF No. 113-1 (errors in original)). In an order filed April 10, 2017, the state PCR court dismissed Owens's second PCR application as untimely and improperly successive under state law. (See ECF No. 138-1.) The stay in this action was then lifted, and briefing recommenced.
FEDERAL HABEAS ISSUES
Owens's amended federal Petition for a writ of habeas corpus raises the following issues, quoted verbatim:
EXHAUSTED GROUNDS FOR FEDERAL HABEAS RELIEF
(1) Trial counsel was ineffective at Petitioner's 2006 sentencing proceeding for failing to investigate and present available and compelling mitigating evidence.
(2) Trial counsel was ineffective at Petitioner's 2006 sentencing proceeding for failing to object to the list of prison disciplinary infractions on Confrontation Clause and Due Process, Eighth Amendment and Proportionality Grounds.
(3) Trial counsel was ineffective at Petitioner's 2006 sentencing proceeding for failing to object or request proper instructions from the court regarding the crime scene video.
(4) Trial counsel was ineffective at Petitioner's 2006 sentencing proceeding for failing to object to irrelevant, inflammatory, and prejudicial testimony from both Officer Joe Wood, who testified Petitioner gave him "cold chills," and Juliana Christy, a victims' advocate who testified this case was "the hardest case she ever had to work on" in fifteen years at the Greenville County Sheriff's Department.
(5) Petitioner's rights under the Eighth and Fourteenth Amendments were violated as a result of the prosecution's improper closing argument and
improper statements during jury selection, and trial counsel was ineffective for failing to object to the same.
UNEXHAUSTED GROUNDS FOR FEDERAL HABEAS RELIEF Martinez v. Ryan , 132 S. Ct. 1302 (2012).
(6) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to investigate, develop and present evidence of institutional negligence which would have mitigated the State's theory that the in-custody death of Mr. Lee conclusively established future dangerousness and the only sentencing option for the petitioner was death. Evidence from expert witnesses available at the time of the petitioner's sentencing trial demonstrated that institutional negligence in failing to classify, and detain the petitioner in accordance with that classification, was the proximate cause of the death of Mr. Lee. 5th, 6th, 8th and 14th Amendments to the Constitution of the United States of America; Skipper v South Carolina, 476 US 1 (1986).
(7) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to investigate, develop and present objective and scientific evidence of structural and functional brain damage resulting from early childhood trauma and materially limiting the applicant's ability to make informed decisions, learn from past behavior, and control impulses resulting from recurrence of situation prompts in daily living which were the same or similar to those of his early childhood. 5th, 6th, 8th, and 14th Amendments to the Constitution of the United States of America; Wiggins v Smith, 539 US 510 (2003).
(8) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to object to the court's recurring jury charge that a finding of life without parole must be unanimous when that charge was not in the sentencing statute, was false, materially misleading, coercive, abusive and irrelevant to the sentencing function. (5th, 6th 8th and 14th Amendments to the Constitution of the United States of America; (Winkler v South Carolina not yet decided)
(9) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to investigate, develop and present mitigation evidence that the applicant suffered from repeated early childhood trauma and sexual abuse. These abusive experiences resulted in organic brain injury, ambiguous sexual identity, and created within the applicant a sensitivity to common adult situational prompts that, in his case, lead to a recurrence of the earlier trauma and extreme preemptive fear aggression as the only behavioral response known to the applicant. 5th, 6th, 8th, and 14th Amendments to the Constitution of the United States of America; Rompilla v Beard, 545 US 374 (2005).
(10) Trial, direct appellate and collateral counsel were ineffective to the prejudice of the applicant by failing to include as reversible error an objection to the trial court's decision to allow testimony of in-custody administrative rules violations as aggravation evidence supporting a sentence of death when those violations were disproportionate to the crime for which the jury was sentencing the petitioner, did not result in injury, were in part administrative violations common to every inmate and were not characterological of the petitioner's propensity for future violence.(Pet., ECF No. 117 at 6-7.)
(11) Trial counsel duly requested that the State disclose all evidence which might be favorable to the defense. Nonetheless, the State failed to disclose evidence that impeaches material witnesses against the applicant in violation of the Fifth, Eighth and Fourteenth Amendments to the Constitution of the United States of America; Brady v Maryland, 373 US 83 (1963) and Wearry v Cain, 136 S. Ct. 1002 (2016). Collateral counsel were ineffective to the prejudice of the applicant in failing to recognize that the State did not disclose material items that would have substantially improved the mitigation case and changed cross-examination tactics had the materials been timely disclosed.
(12) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to challenge the State's decision to seek the death penalty as the decision was motivated by arbitrary factors since the crime was disproportionate to the rare and exceptional case as required by the narrowing features of Furman v Georgia and Gregg v Georgia and the Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States of America.
DISCUSSION
A. Summary Judgment Standard
Summary judgment is appropriate only if the moving party "shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party may support or refute that a material fact is not disputed by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). Rule 56 mandates entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, "[o]nly 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. at 248.
The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(c), (e); Celotex Corp., 477 U.S. at 322.
B. Habeas Corpus Standard of Review
In accordance with the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), claims adjudicated on the merits in a state court proceeding cannot be a basis for federal habeas corpus relief unless the decision was "contrary to, or involved an unreasonable application of clearly established federal law as decided by the Supreme Court of the United States," or the decision "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d)(1), (2). When reviewing a state court's application of federal law, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 410 (2000); see also White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (describing an "unreasonable application" as "objectively unreasonable, not merely wrong" and that "even clear error will not suffice") (internal quotation marks and citation omitted); Harrington v. Richter, 562 U.S. 86, 100 (2011); Humphries v. Ozmint, 397 F.3d 206 (4th Cir. 2005); McHone v. Polk, 392 F.3d 691 (4th Cir. 2004). Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
"A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also White, 134 S. Ct. at 1702 (stating that " '[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement' ") (alteration in original) (quoting Harrington, 562 U.S. at 103). Under the AEDPA, a state court's decision "must be granted a deference and latitude that are not in operation" when the case is being considered on direct review. Harrington, 562 U.S. at 101. Moreover, review of a state court decision under the AEDPA standard does not require an opinion from the state court explaining its reasoning. See id. at 98 (finding that "[t]here is no text in [§ 2254] requiring a statement of reasons" by the state court). If no explanation accompanies the state court's decision, a federal habeas petitioner must show that there was no reasonable basis for the state court to deny relief. Id. Pursuant to § 2254(d), a federal habeas court must (1) determine what arguments or theories supported or could have supported the state court's decision; and then (2) ask whether it is possible that fairminded jurists could disagree that those arguments or theories are inconsistent with the holding of a prior decision of the United States Supreme Court. Id. at 102. "If this standard is difficult to meet, that is because it was meant to be." Id. Section 2254(d) codifies the view that habeas corpus is a " 'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Id. at 102-03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)).
Many of the grounds raised in this habeas corpus petition allege ineffective assistance of counsel. A defendant has a constitutional right to the effective assistance of counsel. To demonstrate ineffective assistance of counsel, a petitioner must show, pursuant to the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), that (1) his counsel was deficient in his representation and (2) he was prejudiced as a result. Id. at 687; see also Williams v. Taylor, 529 U.S. 362, 391 (2000) (stating that "the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims"). To satisfy the first prong of Strickland, a petitioner must show that trial counsel's errors were so serious that his performance was below the objective standard of reasonableness guaranteed by the Sixth Amendment to the United States Constitution. With regard to the second prong of Strickland, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
The United States Supreme Court has cautioned federal habeas courts to "guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d)." Harrington, 562 U.S. at 105. The Court observed that while " '[s]urmounting Strickland's high bar is never an easy task[,]' . . . [e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Id. (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). The Court instructed that the standards created under Strickland and § 2254(d) are both " 'highly deferential,' and when the two apply in tandem, review is 'doubly' so." Id. (citations omitted). Thus, when a federal habeas court reviews a state court's determination regarding an ineffective assistance of counsel claim, "[t]he question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
The Supreme Court has held that a decision containing a reasoned explanation is not required from the state court. As stated above, if no explanation accompanies the state court's decision, a federal habeas petitioner must show that there was no reasonable basis for the state court to deny relief. In the case at bar, this court has the benefit of the PCR court's written opinion, certiorari review of which was denied by the South Carolina Supreme Court, which may provide reasons or theories that the appellate court could have relied upon in summarily denying Owens's petition. Therefore, for the ineffective assistance of counsel claims raised in state court, the court turns to the question whether the PCR court's order unreasonably misapplied federal law or was based on an unreasonable determination of the facts.
C. Exhaustion Requirements
A habeas corpus petitioner may obtain relief in federal court only after he has exhausted his state court remedies. 28 U.S.C. § 2254(b)(1)(A). "To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court." Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454, 454 (S.C. 1990) (holding that "when the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies"). To exhaust his available state court remedies, a petitioner must "fairly present[] to the state court both the operative facts and the controlling legal principles associated with each claim." Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (internal quotation marks and citation omitted). Thus, a federal court may consider only those issues which have been properly presented to the state appellate courts with jurisdiction to decide them. Generally, a federal habeas court should not review the merits of claims that would be found to be procedurally defaulted (or barred) under independent and adequate state procedural rules. Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008); Longworth, 377 F.3d 437; see also Coleman v. Thompson, 501 U.S. 722 (1991). For a procedurally defaulted claim to be properly considered by a federal habeas court, the petitioner must "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
D. Respondent's Motion for Summary Judgment
1. Preserved Grounds
a. Ground One
In Ground One, Petitioner asserts that sentencing counsel were ineffective for failing to investigate and present available and compelling mitigating evidence. (Pet. at 10, ECF No. 117 at 10.) This allegation incorporates sentencing counsel's purported failure to present multiple types of mitigation evidence, including a more extensive presentation by their social historian, Marjorie Hammock, evidence available in the file of a former mitigation investigator, Drucy Glass, and evidence regarding Owens's experience while incarcerated in the South Carolina Department of Juvenile Justice ("DJJ"). To some extent, this claim was raised to and considered by the PCR court, but Owens asserts that the PCR court's denial of the claim was unreasonable. (Pet. at 52, ECF No. 117 at 52.) The respondents, on the other hand, argue that the PCR court's decision comprised reasonable factual findings and was the result of a reasonable application of federal law.
i. Hammock's Testimony and Glass's Evidence
The PCR court first considered whether sentencing counsel were ineffective for failing to present mitigation evidence that was presented in Owens's first or second sentencing proceedings. (App. at 3587, ECF No. 16-14 at 160.) As part of that claim, the PCR court considered, among other things, whether sentencing counsel should have introduced a more in-depth presentation by Marjorie Hammock, and whether they should have presented evidence that was found in the file of Drucy Glass, who served as a mitigation investigator for Owens's first two sets of counsel. (App. at 3587-91, ECF No. 16-14 at 160-64.) The PCR court denied the ineffective assistance of counsel claim, finding that "Owens' trial counsel properly conducted a thorough investigation into potential mitigating evidence and chose to present evidence that it thought would favor Owens at trial." (App. at 3588, ECF No. 16-14 at 161.)
As to Hammock's testimony, the PCR court found legitimate reasons that her testimony in Owens's third sentencing proceeding was "less substantial" than in his previous two sentencing proceedings. For example, the PCR court noted that the State did not cross-examine Hammock in Owens's third sentencing proceeding as it had in the first two. (App. at 3588-89, ECF No. 16-14 at 161-62.) Additionally, the PCR court found Hammock's testimony regarding how Owens might adjust to incarceration, which was not given at the third sentencing proceeding, to be "irrelevant after Owens had been imprisoned for several years and had a lengthy prison disciplinary infraction record." (App. at 3589, ECF No. 16-14 at 162.) The PCR court concluded that sentencing counsel made a strategic decision not to elicit such irrelevant testimony. (App. at 3589, ECF No. 16-14 at 162.) The PCR court also found that Owens was not prejudiced by sentencing counsel's omissions, noting:
Although her testimony was more limited in the third sentencing proceeding than in the first two, Hammock nevertheless offered substantially the same testimony, including that Owens frequently was exposed to violence in his home and neighborhood; suffered from physical abuse; witnessed physical abuse, including one incident during which his step-father chased his mother around the house with a machete; had five family members who had been incarcerated; and, was in and out of foster care for portions of his childhood. Hammock further testified as to the strong correlation between the type of childhood that Owens had and a future history of violence. The topics that she failed to cover were addressed by the other mitigation witnesses at the third sentencing proceeding, specifically Schwartz-Watts, Cobb, Brawley, and Owens' teacher, Ms. Maag.(App. at 3590, ECF No. 16-14 at 163.)
Owens now argues "there is no evidence that trial counsel made a strategic decision not to elicit additional testimony from Hammock." (Pet. at 55, ECF No. 117 at 55.) However, while sentencing counsel may not have used the words "strategic decision" in describing how they handled Hammock's direct examination, their PCR testimony reveals careful planning, which incorporated Hammock's own analysis of how effective her past testimony had been. Gibson, who conducted the direct examination of Hammock, testified that he reviewed the transcripts of the previous trials and then met with Hammock to plan how to proceed in the direct examination. (App. at 2002-03, ECF No. 16-6 at 45-46.) He explained his process as follows:
[W]hen we met on that Saturday, we sat and we talked. We sort of went through what information she had, what information, you know, that she thought was important, what information—we talked about her earlier testimony, you know, what she thought had gone well, you know, whatever, what she thought hadn't. And then based on that conversation, I basically formulated, you know, the questions to try to get it out of her.(App. at 2003, ECF No. 16-6 at 46.) When asked if his intention was to develop Hammock's testimony "perhaps in a more concise fashion, but along the same lines as her testimony in the first two trials[,]" Gibson responded, "Yes." (App. at 2022, ECF No. 16-6 at 65.) Godfrey similarly testified that "[e]verything was covered" by Hammock's testimony though perhaps "it wasn't covered in as many words as it was in the previous trials . . . ." (App. at 2076, ECF No. 16-6 at 119.) Based on sentencing counsel's testimony and the PCR court's own comparison of the evidence presented in the various sentencing proceedings, it was not unreasonable for the PCR court to conclude that "Owens' trial counsel made the strategic decision not to elicit testimony from Hammock that was no longer relevant." (See App. at 3589, ECF No. 16-14 at 162.)
Owens also argues that the PCR court "erred in finding that any topics Hammock failed to cover 'were addressed by the other mitigation witnesses at the third sentencing proceeding.' " (Pet. at 57, ECF No. 117 at 57 (quoting App. 3590, ECF No. 16-14 at 163)). Owens submits that there was a host of evidence, all of which was presented during the PCR hearing, that neither Hammock nor any other witness testified about during Owens's third sentencing proceeding. (Pet. at 57-58, ECF No. 117 at 57-58.) However, Owens's argument takes the PCR court's finding out of context. The ineffective assistance of counsel claim that the PCR court considered centered on sentencing counsel's failure to present mitigation evidence that had previously been presented at Owens's first and second sentencing proceedings. (See Pet. at 21, ECF No. 16-14 at 160.) Thus, in the portion of the PCR court's order relied upon by Owens, the PCR court was comparing Hammock's (and the other mitigation witnesses') testimony at the third sentencing proceeding to Hammock's testimony in the first two sentencing proceedings, not Hammock's (and the other mitigation witnesses') testimony at the third sentencing proceeding to all of the evidence presented in the PCR evidentiary hearing. For example, while Hammock testified at the first two sentencing proceedings about Owens's stepfather locking him out of the house and thereby forcing him to fight children who chased Owens to beat him up, she did not testify to that aspect of Owens's childhood during the third sentencing proceeding. However, Fain Maag, Owens's third-grade teacher, did testify regarding that information. Maag recalled Owens being chased by boys at school and testified that she stopped many fights when she could, but "when [Owens] got home frightened, his father [sic] would lock the door and tell him he wasn't letting him in, that he had to fight. He wanted him to grow up to be a man." (App. at 1466-68, ECF No. 16-3 at 485-87.) Owens's argument to this Court is based on a misinterpretation of the PCR court's order, and Owens fails to show an error in the PCR court's findings when viewed in the context of the actual claim that the PCR court considered in its order.
See ROA1 at 3248, 3254, ECF No. 15-2 at 294, 300; ROA2 at 455, ECF No. 15-7 at 458.
Likewise, Owens misinterprets the PCR court's order concerning the evidence contained in Glass's file. He claims that the PCR court "concluded that trial counsel were not ineffective for failing to present this information because they reviewed the file and 'made a strategic decision not to present the evidence present in that file.' " (Pet. at 54, ECF No. 117 at 54.) According to Owens, the PCR court erred as "trial counsel never testified that they reviewed Ms. Glass's file at all, much less that they made a strategic decision not to present the information in contained." (Pet. at 55, ECF No. 117 at 55.) But Owens's interpretation of the PCR court's order is inconsistent with the language of the order itself, which states:
During his PCR hearing, Owens raised an additional basis for relief under this ground that he did not present in his PCR application, and it too is without merit. Owens argued that this ground extends to cover his trial counsel's failure to present mitigation evidence contained in mitigation investigator Drucy Glass' file. However, despite Owens' claims that his trial counsel did not have access to the information contained within Glass' file during this proceeding, there is no evidence that information was not available to counsel at the time of this proceeding. Glass testified that she turned the file over to Owens' counsel at each proceeding, and
Owens' trial counsel testified that they reviewed the evidence found in that file in advance of trial. If trial counsel made a strategic decision not to present the evidence present in that file, then such a decision does not constitute ineffective assistance of counsel. Trial counsel presented a cogent mitigation case through the testimony of Hammock, Schwartz-Watts, Cobb, Brawley, and Maag. As a result, the absence of some evidence present in Glass' file from the mitigation case presented at trial does not undermine confidence in the outcome of this penalty proceeding.(App. at 3590-91, ECF No. 16-14 at 163-64 (emphasis added)). The PCR court's order reflects that Owens did not meet his burden of proof on his claim. He failed to convince the PCR court that sentencing counsel did not have access to Glass's file, and there is support for the PCR court's conclusion in the record. As the PCR court correctly points out, Glass testified that she turned over her mitigation investigation materials to Owens's previous counsel and to Hammock. (See App. at 2252-54, ECF No. 16-6 at 295-97.) One of Owens's attorneys from his first sentencing proceeding, John Rollins, confirmed that Glass provided her evidence to him and that those materials would have been a part of the file he turned over to counsel for Owens's second sentencing proceeding. (App. at 2261-63, ECF No. 16-6 at 304-06.) Then Steven Sumner, one of Owens's attorneys from his second sentencing proceeding, testified that he believed Glass turned all of her documentation over to him and to Hammock, and he testified that he gave his entire file to Gibson. (App. at 2267-72, ECF No. 16-6 at 310-15.) There was also testimony that sentencing counsel reviewed the case files from Owens's previous trials. (App. at 2058-60, ECF No. 16-6 at 101-03.) Though Godfrey had no recollection of a chronology prepared by Glass that was shown to him at the PCR evidentiary hearing, he could only guess that he never had that document if it was not in the file that he turned over to PCR counsel. (App. at 2059-61, ECF No. 16-6 at 102-04.) In light of the entirety of the evidence before the PCR court, it was not unreasonable for the court to find "no evidence that information was not available to counsel at the time of this proceeding." (App. at 3590, ECF No. 16-14 at 163.) Moreover, Owens is incorrect that the PCR court found that sentencing counsel "reviewed the file and 'made a strategic decision not to present the evidence present in that file.' " (Pet. at 54, ECF No. 117 at 54.) The PCR court only noted, "If trial counsel made a strategic decision not to present the evidence present in that file, then such a decision does not constitute ineffective assistance of counsel." (App. at 3591, ECF No. 16-14 at 164 (emphasis added)).
Jill Rider, a paralegal for PCR counsel, testified that some documents received by PCR counsel from Glass were not in sentencing counsel's file. (App. at 2108-19, ECF No. 16-6 at 151-62.) According to Rider, the missing documents included the following: a copy of Owens's mother's medical records, a copy of DSS records, family criminal records, SCDC records for various family members, and DJJ records. (App. at 2110-12, ECF No. 16-6 at 153-55.)
On cross-examination, Rider conceded that she could not say that those documents from Glass's file were not in Gibson's file, Hammock's file, Dr. Donna Schwartz-Watts's file, Dr. Tora Brawley's file, or Dr. Thomas Cobb's file. (App. at 2113-14, ECF No. 16-6 at 156-57.)
In any event, the PCR court reasonably concluded there was no prejudice because sentencing counsel "presented a cogent mitigation case through the testimony of Hammock, Schwartz-Watts, Cobb, Brawley, and Maag" even without some evidence from Glass's file. (App. at 3591, ECF No. 16-14 at 164.) Owens submits that
[t]he PCR Court's Order entirely fails to acknowledge or account for the extensive available mitigating evidence that trial counsel failed to present, and rests instead on the conclusory declaration that "[t]rial counsel presented a cogent mitigation case through the testimony of Hammock, Schwartz-Watts, Cobb, Brawley, and Maag." App. 3591. That declaration not only lacks support in the record, it also lacks anything approaching the legally dispositive power attributed to it by the PCR Court's order.(Pet. at 58, ECF No. 117 at 58.) This court disagrees with Petitioner's assertion that the PCR court's finding lacks support in the record. The record shows that sentencing counsel's mitigation presentation began with Hammock's testimony about Owens's background, including details of a childhood marked by poverty, neglect, difficulties in school, and family violence. (App. at 1447-65, ECF No. 16-3 at 466-84.) Fain Maag, who taught Owens in third grade, then testified about her specific recollections of Owens as a young boy, describing him as one of those "kids that just sort of make an impression on you and you want to reach out to them and you know they are trying for you . . . ." (App. at 1470, ECF No. 16-3 at 489.) Maag also testified to her observations that Owens struggled with reading and with his social skills, but she found that he "had some real gifts," including being "one heck of a runner" and also an artist. (App. at 1469-70, ECF No. 16-3 at 488-89.) Following Maag's testimony, Dr. Tora Brawley, a neuropsychologist, testified about her evaluation of Owens and her findings that Owens suffered from select areas of deficit in his brain. (App. at 1472-85, ECF No. 16-4 at 5-18.) However, she found it noteworthy that Owens had been able to improve his IQ scores by reading and self-teaching. (App. at 1478, ECF No. 16-4 at 11.) Sentencing counsel then called Dr. Thomas Cobb, a psychiatrist who treated Owens during his incarceration, to the stand, and Dr. Cobb's testimony reflected a similar theme about Owens's attempts to better himself. (App. at 1485-1504, ECF No. 16-4 at 18-36.) Dr. Cobb recounted how Owens reached out to him because Owens wanted help staying out of trouble. (App. at 1488-89, ECF No. 16-4 at 21-22.) Dr. Cobb also testified that he enjoyed talking to and learned a lot from Owens, whom he found to be "very intellectual, [and] very philosophical . . . ." (App. at 1490, ECF No. 16-4 at 23.) Finally, sentencing counsel presented Dr. Donna Schwartz-Watts, a forensic psychiatrist, whose testimony tied all of the earlier mitigation evidence together. (App. at 1505-45, ECF No. 16-4 at 38-78.) Dr. Schwartz-Watts ultimately testified to diagnosing Owens with chronic depression, attention deficit disorder, and antisocial personality disorder, thus providing the jury with some explanation of Owens's behavior, but she also integrated into her testimony details about Owens's background and family history. For instance, Dr. Schwartz-Watts mentioned Owens's exposure to physical abuse as a child and how his family's poverty affected his mental state. (App. at 1516-19, ECF No. 16-4 at 49-52.) Dr. Schwartz-Watts was also able to provide forward-looking testimony, which echoed the theme that Owens was proactive in trying to better himself and control himself despite his deficits. (App. at 1529-35, ECF No. 16-4 at 62-68.) Thus, there is support in the record for the PCR court's finding that sentencing counsel presented a cogent mitigation case through their five witnesses.
Owens argues that the PCR court misapplied federal law by "fail[ing] to acknowledge or account for the extensive available mitigating evidence that trial counsel failed to present" because the court found their mitigation presentation to be cogent. (See Pet. at 58, ECF No. 117 at 58). Petitioner also references a United States Supreme Court decision where the Court stated, "We certainly have never held that counsel's effort to present some mitigation evidence should foreclose an inquiry into whether a facially deficient mitigation investigation might have prejudiced the defendant." Sears v. Upton, 561 U.S. 945, 955 (2010). Petitioner again misconstrues the PCR court's order. In the portion of the order that Owens relies upon, the PCR court considered a particular claim raised in Petitioner's second amended PCR application—that sentencing counsel were ineffective for failing to present evidence, specifically the full testimony of Hammock and Dr. Evans, that had been presented in either one or both of Owens's first two sentencing proceedings. (See App. at 3587-91, ECF No. 16-14 at 160-64.) The PCR court also considered an additional type of evidence, the information from Glass's file, under that claim because it was similar evidence that would have been available to sentencing counsel from the first or second proceedings. The PCR court cited to the relevant law, recognizing that its prejudice analysis should weigh the entire body of mitigating evidence against the entire body of aggravating evidence. (App. at 3589, ECF No. 16-14 at 162.) However, because the PCR court found that the substance of both Hammock's and Evans's testimony was covered by sentencing counsel's mitigation presentation, the only additional mitigation evidence that the PCR court could consider in weighing the body of mitigating evidence came from Glass's file. The PCR court ultimately concluded that "the absence of some evidence present in Glass' file from the mitigation case presented at trial [did] not undermine confidence in the outcome of this penalty proceeding." (App. at 3591, ECF No. 16-14 at 164.) The PCR court did not unreasonably misapply federal law in finding Petitioner was not prejudiced by any alleged failure on sentencing counsel's part. See Strickland, 466 U.S. at 695 ("Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.").
As the PCR court's order explains, the claim that sentencing counsel were ineffective for failing to present evidence from Glass's file was first raised during the PCR evidentiary hearing. (App. at 3590, ECF No. 16-14 at 163.)
ii. DJJ Evidence
The court thus turns to the PCR court's consideration of sentencing counsel's failure to present evidence of Owens's experiences while incarcerated in DJJ. The PCR court found Owens failed to prove either deficient performance or prejudice. Accordingly, the PCR court denied post-conviction relief. The PCR court looked at whether "trial counsel [were] ineffective for failing to introduce the testimony of Dr. James Garbarino that Owens experienced and witnessed physical and sexual abuse while incarcerated at DJJ." (App. at 3591, ECF No. 16-14 at 164.) In its discussion of sentencing counsel's performance, the PCR court noted, "Although Owens met with six defense attorneys, two mitigation investigators, one private investigator, and a number of mental health experts . . . ," he never informed any of those individuals that he was sexually assaulted while at DJJ. (App. at 3591, ECF No. 16-14 at 164.) Additionally, the PCR court noted that Owens did not present any witnesses who either observed or were told about Owens being physically or sexually abused at DJJ (prior to his reports to PCR counsel and their expert). (App. at 3591-92, ECF No. 16-14 at 164-65.) Nor were there any records to support the allegations of abuse. (App. at 3591-92, ECF No. 16-14 at 164-65.) The PCR court found that sentencing counsel "conducted an extensive and thorough investigation into potential mitigation evidence and made a conscious decision not to present Garbarino's testimony at trial." (App. at 3592, ECF No. 16-14.) The PCR court also credited sentencing counsel's testimony that they chose not to present mitigation evidence regarding Owens's time in DJJ because they did not want to invite testimony regarding the reasons for Owens's juvenile incarceration or details of Owens's behavior at DJJ. (App. at 3592-93, ECF No. 165-66.) Finally, the PCR court found no prejudice by any failure to introduce evidence regarding Owens's alleged physical and sexual abuse because such evidence "would have come at the great cost of opening the door for the State to introduce evidence that would characterize Owens as a consistently violent criminal who would be a future danger to society and who would not adapt well to prison." (App. at 3593, ECF No. 16-14 at 166.)
Owens raises a number of challenges to this portion of the PCR court's order. Owens asserts "[t]here is . . . no support in the record for the PCR Court's finding that 'trial counsel decided that it would be in [Petitioner's] best interest not to present [evidence of his DJJ experiences] because of the circumstances surrounding [Petitioner's] incarceration in DJJ as well as his behavior while there.' " (Pet. at 55, ECF No. 117 at 55.) Owens contends that sentencing counsel's investigation was inadequate, and thus, they could not have made a reasonable strategic decision to omit DJJ mitigation evidence. (Pet. at 55-56, ECF No. 117 at 55-56.) However, there is evidence in the record to support the PCR court's findings. For example, when asked if he directed anyone to investigate Owens's experiences in DJJ, Godfrey responded, "We were clearly looking at that. Dr. Schwartz-Watts had his DJJ records. Freddie was at DJJ at a time when DJJ in Columbia was a mess." (App. at 2062, ECF No. 16-6 at 105.) Gibson indicated that he "primarily became aware of all the problems [Owens] had had down at DJJ through Dr. Schwartz-Watts." (App. at 2026, ECF No. 16-6 at 69.) According to Gibson, sentencing counsel's discussions with Owens were "a lot of strategic stuff" while "the sessions [Owens] had with Dr. Schwartz-Watts were a lot more, like, open." (App. at 2026, ECF No. 16-6 at 69.) Nevertheless, Godfrey testified that he reviewed Owens's DJJ records. (App. at 2064, ECF No. 16-6 at 107.) And though Godfrey could not recall if he relied only on the records from DJJ or if he directed anyone from his team to further investigate Owens's particular experiences at DJJ, he testified, "I know that I was concerned about the DJJ information because it helped in a way in my view and didn't help in a way. The theory that I was trying to go on was the family got him to where he was. Now he's trying to do better." (App. at 2064, ECF No. 16-6 at 107.) Godfrey also described the DJJ evidence as "a two-edge sword" and noted he "wasn't particularly happy with the reason why he was in DJJ." (App. at 2063, ECF No. 16-6 at 106.) The above evidence supports the PCR court's conclusion that sentencing counsel made a strategic decision not to introduce evidence regarding Owens's experience at DJJ—that is, the experience of which they were aware.
However, there were some aspects of Owens's DJJ experience of which sentencing counsel had no knowledge. Owens appears to argue that the PCR court's order contains a factual flaw related to the lack of mitigation evidence presented by sentencing counsel regarding Owens's DJJ experiences—"[t]rial counsel cannot, as a matter of law, make an informed strategic decision about whether to present certain information when they do not know what that information is." (Pet. at 55, ECF No. 117 at 55.)
The PCR court clearly found that Owens never disclosed any physical or sexual abuse to any of his three trial teams and that there were no allegations of such abuse in any records that sentencing counsel reviewed. (App. at 3591-92, ECF No. 16-14 at 164-65.) Yet, the order repeatedly indicates that sentencing counsel made a strategic decision not to present that evidence. (App. at 3591-93, ECF No. 16-14 at 164-66.) The respondents interpret that finding to mean that sentencing counsel made a strategic decision not to present the mitigation evidence regarding Owens's experience at DJJ that they knew about from their review of the records and from Owens's reports to the trial team. (See Reply to Resp't's Mot. for Summ. J. at 20, ECF No. 184 at 20.) This interpretation is supported by the record.
The determination of whether or not trial counsel made a strategic decision to include or omit evidence is a factual determination. Wood v. Allen, 558 U.S. 290, 300-03 (2010).
Petitioner did not respond to this argument, which was raised in the respondents' amended Return. In fact, the Ground One discussion in Petitioner's Response to the Motion for Summary Judgment is an almost verbatim recitation of the arguments in his Petition. Thus, it appears that rather than provide the court with a pointed response to the specific arguments made by the respondents in their amended Return, Petitioner chose to copy and paste (save one or two minor substantive changes and some additional formatting changes) approximately fifty pages of discussion that had previously been presented to the court in the Petition itself.
See App. at 2062-65, ECF No. 16-6 at 105-08; App. at 2097-102, ECF No. 16-6 at 140-45.
The confusion identified by Owens arises from the PCR court's references specifically to Dr. Garbarino's testimony, which was presented at the PCR hearing but was not available to sentencing counsel, as PCR counsel were the first to retain Dr. Garbarino. The PCR court order described the relevant PCR claim as follows:
Owens alleges that his trial counsel was ineffective during his 2006 sentencing proceeding for failing to present mitigation evidence of Owens' experience while incarcerated in the Department of Juvenile Justice and the impact of those experiences upon his character, conduct, and psychological condition. Specifically, Owens argues that his trial counsel was ineffective for failing to introduce the testimony of Dr. James Garbarino that Owens experienced and witnessed physical and sexual abuse while incarcerated at DJJ.(App. at 3591, ECF No. 16-14 at 164.) The PCR court then went on to find:
Owens cannot prove that his trial counsel was deficient for failing to present the substance of Garbarino's testimony at Owens' third resentencing proceeding because trial counsel made a reasonable strategic decision not to present this evidence.(App. at 3591-93, ECF No. 16-14 at 164-66.)
. . . .
[I]t is clear from the record that Owens' trial counsel conducted an extensive and thorough investigation into potential mitigation evidence and made a conscious decision not to present Garbarino's testimony at trial.
. . . .
[T]rial counsel decided that it would not be in Owens' best interest not to present this mitigation evidence . . . .
. . . .
As a result, it was a reasonable strategic decision for Owens' trial counsel to choose not to call Garbarino in an attempt to keep Owen's [sic] DJJ record out of his sentencing proceeding.
However, even if the PCR court imprecisely referred to Dr. Garbarino's testimony as having been available to (and rejected by) sentencing counsel, the PCR court's conclusion that sentencing counsel were not deficient is not based solely on that finding. Indeed, all of the PCR court's other findings for this ground are supported by the record, and those findings compel the conclusion that sentencing counsel were not deficient. For example, the PCR court found that Owens never disclosed that he was physically or sexually abused at DJJ to sentencing counsel, to anyone on their team, or to either of Owens's prior trial teams. (App. at 3591, ECF No. 16-14 at 164.) The PCR court found sentencing counsel's investigation to be "extensive and thorough . . . ." (App. at 3592, ECF No. 16-14 at 165.) In addition to utilizing a number of experts and service providers to assist in their mitigation investigation, sentencing counsel reviewed the mitigation evidence collected in Owens's previous trials, and there were no allegations of either physical or sexual abuse in any of those records. (App. at 3592, ECF No. 16-14 at 165.) The only conclusion to be drawn from the PCR court's findings, which are supported by the record, is that sentencing counsel's "conduct [fell] within the wide range of reasonable professional assistance . . . ." Strickland, 466 U.S. at 689. It is difficult to fathom how counsel could have been deficient for failing to search for or present evidence about incidents that Owens never shared with them or his mitigation team and that they had no reason to know of otherwise even after an extensive and thorough investigation. Thus, despite the apparent inconsistent findings regarding the availability of Dr. Garbarino's testimony to sentencing counsel and their decision on what mitigation evidence to present, the PCR court's ultimate conclusion that sentencing counsel were not deficient was not "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2); see also Holloway v. Stevenson, C/A No. 8:16-cv-3023-JMC-JDA, 2017 WL 3208585, at *9 (D.S.C. July 11, 2017) ("Although the PCR court's decision contains a factual inaccuracy . . . , this statement is not a factual determination as to the claim as a whole.").
Moreover, even under a de novo standard of review, Petitioner would not be entitled to relief on this claim. It is undisputed that sentencing counsel did not know of the allegations of physical and sexual abuse. Also, the record shows that there was an investigation by the trial team into Owens's experiences at DJJ—for instance, Owens spoke to Dr. Schwartz-Watts about his DJJ experience, telling her that he enjoyed being a part of the ROTC program there. (App. at 2283, ECF No. 16-6 at 326.) Importantly, Dr. Schwartz-Watts also asked Owens if he was ever sexually abused, and he denied that he was. (App. at 2282-83, ECF No. 16-6 at 325-26.) Dr. Brawley also testified that Owens denied being sexually abused when she asked him about it. (App. at 2301-02, ECF No. 16-6 at 344-45.) Sentencing counsel were not deficient for failing to uncover and then present evidence of Owens being physically or sexually abused while incarcerated at DJJ when Owens failed to share such information with sentencing counsel or members of their team even though he was specifically asked about it. See Strickland, 466 U.S. at 691 ("Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. . . . And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable."); cf. DeCastro v. Branker, 642 F.3d 442, 456 (4th Cir. 2011) ("[T]he state court did not act unreasonably in refusing Petitioner's attempt to upend his conviction and sentence based on the information that he failed to timely provide to counsel."). Additionally, it was not unreasonable for sentencing counsel not to further investigate Owens's DJJ experience where their investigations had turned up little mitigating evidence and much aggravating evidence. Cf. Burger v. Kemp, 483 U.S. 776, 794 (1987) (concluding counsel's limited investigation into the petitioner's background was reasonable where counsel "interview[ed] all potential witnesses who had been called to his attention and . . . there was a reasonable basis for [counsel's] strategic decision that an explanation of petitioner's history would not have minimized the risk of the death penalty").
The Fourth Circuit has indicated that when a state court decision is based on an unreasonable determination of the facts, a reviewing court should proceed with a de novo review of the claim. Austin v. Plumley, 565 F. App'x 175, 184-85 (4th Cir. 2014) (unpublished).
She testified that she could not recall if she specifically asked him if he was ever sexually abused at DJJ, but she knew that she asked him about any history of sexual abuse generally. (App. at 2283, ECF No. 16-6 at 326.)
Furthermore, the PCR court's prejudice inquiry remains sound despite the court's apparent mistaken premise as to a strategic decision in its deficiency analysis. In particular, the PCR court found that if sentencing counsel had presented evidence regarding alleged physical and sexual abuse at DJJ, then the State may have introduced evidence regarding the reason for Owens's DJJ incarceration and the details of his poor behavior while there. (App. at 3592-93, ECF No. 16-14 at 165-66.) The PCR court found that Owens failed to show prejudice since
As the PCR court noted in its order, "Owens was incarcerated in DJJ for assault with intent to kill." (App. at 3592, ECF No. 16-14 at 165.) Godfrey recalled the specifics of that conviction—"he felt threatened. And allegedly, he fired the gun at some people." (App. at 2099, ECF No. 16-6 at 142.) Godfrey testified, "I had enough of guns and shooting to deal with already. . . . [I]f [Solicitor] Ariail wasn't going to bring it up, I really didn't want to go there." (App. at 2099, ECF No. 16-6 at 142.)
[e]ven if the jury believed Garbarino's uncorroborated testimony that Owens was physically and sexually abused while incarcerated at DJJ, the defense's eliciting of that testimony would have come at the great cost of opening the door for the State to introduce evidence that would characterize Owens as a consistently violent criminal who would be a future danger to society and who would not adapt well to prison.(App. at 3593, ECF No. 16-14 at 166.)
Though Owens argues that "the PCR court unreasonably applied relevant law by requiring Petitioner to provide written documentation of his own sexual abuse at DJJ[,]" (Pet. at 60, ECF No. 117 at 60), the PCR court did no such thing. Rather, the PCR court permissibly assessed the believability of Owens's physical and sexual abuse allegations that were apparently first made in 2009 though Owens had multiple opportunities, in multiple different contexts, to disclose any abuse prior to that. Just as there was no evidence at PCR that Owens orally reported any physical or sexual abuse prior to 2009, there was also no documentary evidence of reported abuse. The weight of the new mitigation evidence was relevant as the PCR court considered the entirety of the evidence—both aggravating and mitigating—that could have been presented to the jury. Additionally, contrary to Owens's assertion, the PCR court did not discount entirely the allegations of physical and sexual abuse. In its prejudice determination, the PCR court considered the weight of that evidence assuming the jury believed it to be true. Nevertheless, the PCR court found that Owens did not meet his burden of proving prejudice, noting that additional evidence of Owens's experience at DJJ would have invited the State to present "evidence that would characterize Owens as a consistently violent criminal who would be a future danger to society and who would not adapt well to prison." (App. at 3593, ECF No. 16-14 at 166.) In so finding, the PCR court did not unreasonably apply federal law. See Emmett v. Kelly, 474 F.3d 154, 170 (4th Cir. 2007) ("In death penalty cases, to assess prejudice, the court 'reweigh[s] the evidence in aggravation against the totality of available mitigating evidence.' " (quoting Wiggins, 539 U.S. at 534)).
Dr. Garbarino admitted that there was documentation completed by Owens that denied that he had been sexually abused. (App. at 2220, ECF No. 16-6 at 263.)
For all of the foregoing reasons, Owens is not entitled to a writ of habeas corpus on Ground One.
b. Ground Two
In Ground Two Owens argues that the PCR court erred in denying his claim that sentencing counsel were ineffective for failing to raise a Confrontation Clause objection when the State attempted to introduce a list of Owens's prison disciplinary infractions. Owens claims that the PCR court unreasonably applied federal law by finding the records were non-testimonial. (Pet. at 69-70, ECF No. 117 at 69-70.) Owens additionally claims that the PCR court unreasonably found the list to be cumulative. (Pet. at 70-71, ECF No. 117 at 70-71.)
During Owens's third sentencing proceeding, the State introduced a list of twenty-eight disciplinary infractions through a records custodian for the South Carolina Department of Corrections ("SCDC"). (App. at 1439-41, ECF No. 16-3 at 458-60.) While sentencing counsel objected to the list based on the trustworthiness of the records, they did not argue that the introduction of the list would violate Owens's rights under the Confrontation Clause. (App. at 1404-35, ECF No. 16-3 at 423-54.) In his PCR action, Owens asserted that sentencing counsel were ineffective for failing to make such an objection. (App. at 1879, ECF No. 16-5 at 3.) The PCR court denied the claim, finding that "trial counsel [were] not deficient for failing to make a Confrontation Clause objection to the introduction of this summary into evidence because non-testimonial business records do not implicate the Confrontation Clause." (App. at 3585, ECF No. 16-14 at 158.) The PCR court further found that Owens was unable to show prejudice since the list was "cumulative" as "[m]any of the witnesses that testified to Owens' future dangerousness relied upon these prison records to testify to Owen's [sic] history of violent behavior and possession of illegal weapons while incarcerated." (App. at 3587, ECF No. 16-14 at 160.)
Owens has failed to show that the PCR court unreasonably applied federal law in finding that the prison disciplinary infraction reports were non-testimonial in nature. The PCR court specifically cited to the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004), in which the Court held that the Confrontation Clause bars the admission of testimonial statements by a witness unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity to cross-examine that witness. Crawford, 541 U.S. at 68-69. While the Crawford Court declined to "spell out a comprehensive definition of 'testimonial[,]' " id. at 68, it indicated that some "statements . . . by their nature [are] not testimonial—for example, business records . . . [,]" id. at 55. The Court also stated that non-testimonial statements were "exempted . . . from Confrontation Clause scrutiny altogether." Id. at 68. Since Crawford, the Supreme Court has expanded upon how a court should determine whether a statement is testimonial:
To determine if a statement is testimonial, we must decide whether it has "a primary purpose of creating an out-of-court substitute for trial testimony." Michigan v. Bryant, 562 U.S. 344, 358 (2011). When the "primary purpose" of a statement is "not to create a record for trial," id., "the admissibility of [the] statement is the concern of state and federal rules of evidence, not the Confrontation Clause," id. at 359.Bullcoming v. New Mexico, 564 U.S. 647, 669 (2011) (Sotomayor, J., concurring in part).
Though the PCR court did not expressly reference the "primary purpose" test, it nevertheless found "[t]he business records in issue in this case are non-testimonial in nature because they were not prepared in anticipation of producing testimony at trial, but rather in accordance with South Carolina statutory law for the administration of prison affairs." (App. at 3585, ECF No. 16-14 at 158.) In support of that finding, the PCR court cited to South Carolina statutory and case law, which requires that "[t]he Director of the Department of Corrections, when a prisoner is confined in the State Penitentiary, . . . must keep a record of the industry, habits, and deportment of the prisoner . . . ." S.C. Code Ann. § 24-21-70; see Rayfield v. South Carolina Dep't of Corr., 374 S.E.2d 910, 917 (S.C. Ct. App. 1988) (noting that "the essential purpose of [S.C. Code Ann. § 24-21- 70 and other related statutes] is to assign responsibility for the management and control of two state agencies and to provide for the general keeping of records on prisoners"). The PCR court reasonably found that the prison disciplinary infraction reports were not prepared in anticipation of trial, particularly in light of state law requiring SCDC to keep such records on all prisoners for management and control purposes. Owens has not pointed to a United States Supreme Court case to the contrary. Accordingly, this court cannot find that the PCR court unreasonably misapplied federal law in determining that the prison disciplinary infraction list was non-testimonial in nature. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009) ("Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because—having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial."); see also Facey v. Dickhaut, 91 F. Supp. 3d 12, 20-21 (D. Mass. 2014) (recognizing that prison disciplinary records have been found admissible under Fed. R. Evid. 803(6)).
As to Petitioner's argument that the PCR court made an unreasonable factual determination in finding the list of prison disciplinary infractions to be cumulative, the court disagrees. State court factual determinations are presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). In this case, Petitioner has not met his burden. Indeed, there is support in the record for the PCR court's determination that the list was "cumulative proof of aggravating factors." (App. at 3587, ECF No. 16-14 at 160.) For example, the record shows that Major Thierry Nettles with Lieber Correctional Institution testified that he had personal dealings with Owens and had found him to be "assaultive, destructive, and damaging . . . bar none, my most problematic inmate." (App. at 1442, ECF No. 16-3 at 461.) Additionally, Dr. Schwartz-Watts relied upon Owens's extensive history of prison disciplinary infractions in evaluating Owens, and the prosecutor properly questioned her on the details of some of those records. (App. at 1536-40, ECF No. 16-4 at 69-73.)
For the above reasons, the court finds that Petitioner has failed to demonstrate either an unreasonable application of federal law or an unreasonable determination of the facts as to this ground. Accordingly, Petitioner is not entitled to habeas relief. However, the court would further note that even if there were some reason to engage in a de novo review of this ground, federal case law indicates that the Confrontation Clause is not applicable in sentencing proceedings. See United States v. Umana, 750 F.3d 320, 346 (4th Cir. 2014) ("Courts have long held that the right to confrontation does not apply at sentencing, even in capital cases."); see also Williams v. New York, 337 U.S. 241 (1949) (rejecting the argument that a defendant was entitled to trial confrontation rights at sentencing). Thus, sentencing counsel could not have been ineffective for failing to raise a Confrontation Clause objection to the use of the prison disciplinary infraction list at the 2006 sentencing proceeding.
The respondents made this same argument in their amended Return, but Petitioner did not respond to that particular argument. Petitioner's Response to the motion for summary judgment consisted of substantially the same discussion submitted in his Petition.
c. Ground Three
In Ground Three Owens argues that the PCR court made unreasonable factual findings and unreasonably applied federal law in rejecting his claim that sentencing counsel were ineffective for failing to object or request proper instructions from the trial court regarding the crime scene video introduced by the State during their case in aggravation.
At Petitioner's sentencing proceeding, the State introduced the convenience store video showing Irene Graves's murder. (App. at 1125, ECF No. 16-3 at 148.) Larry Bellew, who worked for the Greenville County Sheriff's Office at the time the murder, testified as to what the video showed—two armed, masked individuals entering the convenience store and Graves being shot. (App. at 1123-28, ECF No. 16-3 at 146-51.) In his PCR application, Owens raised the following allegation of ineffective assistance of counsel:
Counsel failed to object and/or request proper instructions from the court when the State played a crime scene video without further explanation or analysis. 2006 Tr. at 1076. The crime scene video shows two masked men, but their faces are not identifiable. One of the masked men is primarily shown in the video. He stands behind the counter, points a gun at the clerk, and appears to shoot the clerk before the two men run out of the convenience store. Applicant's co-defendant, Steven Golden, testified at Applicant's previous trials that it was he (Golden) who is primarily visible in the video. The State then offered an analysis as to why it believed that the fatal shot came from the other man standing off-camera. The jury at Applicant's 2006 re-sentencing heard no analysis about who appears in the video. They were simply instructed that Applicant had already been found guilty of murder and then they were shown the video without explanation. The trial judge at the 2006 re-sentencing instructed the jurors that they could consider whether Applicant had "minor participation" in the crime as a mitigating circumstance. 2006 Tr. at 1592. But, without further instruction, the video misled the jury to believe that there was conclusive video-graphic evidence that Applicant fired the fatal shot, thereby foreclosing consideration of both the "minor participation" mitigating circumstance, and the related possibility that Applicant, though perhaps present, had not been the triggerman.(App. at 1878-79, ECF No. 16-5 at 2-3.) The PCR court denied this claim, finding sentencing counsel were not deficient because there was nothing improper about the State's introduction of the crime scene video at the sentencing proceeding and because an instruction by the trial court would have been improper under state law. (App. at 3577-78, ECF No. 16-14 at 150-51.) Thus, the PCR court reasoned, there was no viable objection to the video, nor was there an appropriate instruction that counsel could have requested. The PCR court also found no prejudice where "[i]n light of all of the evidence presented at the third resentencing hearing, Owens is unable to prove that there is a reasonable probability that the jury would have returned a life sentence if the State had not played the crime scene video or if the judge had instructed the jury as to its contents." (App. at 3579, ECF No. 16-14 at 152.)
Owens initially claims that "the PCR Court mischaracterized Petitioner's argument as a claim that trial counsel should have requested that the court 'tell the jury which of the two men captured in the video was the triggerman,' and that they should have 'offer[ed] Golden's testimony from previous proceedings.' " (Pet. at 78, ECF No. 117 at 78.) However, Petitioner has taken these excerpts out of context. When viewed in their proper context, it is clear that the PCR court was describing, not what sentencing counsel should have done, but what the State did in presenting its case in aggravation. The PCR court described Petitioner's claim as one that sentencing counsel were ineffective "for failing to object when the State . . . did not tell the jury which of the two men captured in the video was the triggerman." (App. at 3577, ECF No. 16-14 at 150 (emphasis added)). Additionally, the PCR court stated, "Owens argues that by playing the video without offering Golden's testimony from previous proceedings—that he was the man visible behind the counter and that Owens, standing off camera, shot Graves—the State misled the jury . . . ." (App. at 3577, ECF No. 16-14 at 150 (emphasis added)). Thus, the record belies Owens's argument that the PCR court mischaracterized his PCR claim.
Owens additionally argues that the PCR court unreasonably found that " '[a]t the PCR hearing, trial counsel testified that they knew that an instruction clarifying the content of the crime scene video would have violated South Carolina law and that a request for any such instruction would be denied.' " (Pet. at 78, ECF No. 117 at 78 (quoting App. at 3578, ECF No. 16-14 at 151)). But sentencing counsel did testify to as much. For example, in answering a line of questions related to a potential jury instruction on the video, Gibson testified that judges were not allowed to comment on the facts of the case. (App. at 2018, ECF No. 16-6 at 61.) Subsequently, Godfrey was asked if he knew "of any way you could have gotten Judge Patterson to instruct the jury who was who [sic] in the videotape[,]" and he responded, "That's commenting on the facts. He could not do that." (App. at 2085, ECF No. 16-6 at 128.) Owens has not demonstrated that the PCR court made an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(e)(1) (stating that state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence).
As to Petitioner's argument that "the PCR court guised trial counsel's incompetence decision-making [sic] in the cloak of a 'strategic' decision and called it competent lawyering under Strickland[,]" the court disagrees with that characterization of the PCR court's findings. The order states, "At the PCR hearing, trial counsel testified that they knew that an instruction clarifying the content of the crime scene video would have violated South Carolina law and that a request for any such instruction would be denied." (App. at 3578, ECF No. 16-14 at 151.) Owens seems to interpret the PCR court's use of "knew" in that statement to mean that sentencing counsel knew at the time of the sentencing proceeding that an instruction on the content of the video would constitute an improper comment on the facts and thus decided not to make such an objection since it would be denied. Therefore, Owens argues that the PCR court engaged in post hoc rationalization—finding a strategic purpose where there was none. However, Petitioner reads too much into the PCR court's finding. Indeed, the PCR court did not attribute any strategic decision to counsel. Instead, the PCR court reasonably concluded that sentencing counsel were not deficient for failing to object because there was no proper objection to be made—the video was admissible and an objection on the content of the video would have been prohibited under state law. (App. at 3577-78, ECF No. 16-14 at 150-51.) The PCR court's reference to sentencing counsel's testimony from the PCR evidentiary hearing only confirmed that there was no meritorious objection to be made, which explains their conduct in not making one.
Owens asserts that it was unreasonable for the PCR court to find that "the State offered other 'testimony that [Petitioner] was the triggerman.' " (Pet. at 79, ECF No. 117 at 79.) However, the remainder of Owens's discussion rebuts his own argument, as he goes on to describe the State's other evidence that he was the triggerman. (Pet. at 79-80, ECF No. 117 at 79-80.) Petitioner takes issue with the fact that the additional evidence came from a "self-interested" co-defendant and a "jilted ex-girlfriend." (Pet. at 79, ECF No. 117 at 79.) However, Petitioner's own assessment of those witnesses as unreliable does not make the PCR court's finding unreasonable. Nor is there any support for Petitioner's implication that only forensic evidence could have served as competent evidence of the identity of the triggerman. Petitioner's own argument admits that there was evidence (however untrustworthy Petitioner deems it to be) that he was the triggerman. Consequently, the PCR court's factual finding was not unreasonable.
To the extent Petitioner now asserts that the PCR court found no prejudice simply because there was other evidence that Petitioner was the triggerman, that argument misconstrues the record. The PCR court specifically found:
In light of all of the evidence presented at the third resentencing hearing, Owens is unable to prove that there is a reasonable probability that the jury would have returned a life sentence if the State had not played the crime scene video or if the judge had instructed the jury as to its contents.(App. at 3579, ECF No. 16-14 at 152.) Owens has failed to show that the PCR court's prejudice finding reflects an unreasonable application of federal law. See, e.g., Strickland, 466 U.S. at 695 ("Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.").
The remainder of Petitioner's argument in Ground Three goes beyond the claim that was raised in PCR and considered by the PCR court. Owens argues that sentencing counsel had an obligation to rebut the State's evidence that Owens was the triggerman and that the PCR court misapplied federal law by failing to recognize sentencing counsel's obligations. (Pet. at 80-81, ECF No. 117 at 80-81.) However, the PCR court decided the claim before it—whether sentencing counsel were ineffective for failing to object to the video and seek an instruction from the judge, not whether they were ineffective for failing to present additional evidence to rebut the State's triggerman evidence. (See App. at 3577-79, ECF No. 16-14 at 150-52.) Thus, Owens's argument is procedurally barred. See Fisher v. Angelone, 163 F.3d 835, 851-52 (4th Cir. 1998) (finding a claim is procedurally barred if the substance of the claim was not presented to the state court and a petitioner would now be barred from raising it in state court). Petitioner has neither alleged nor demonstrated cause and prejudice to excuse the procedural bar.
Even if this particular argument was properly preserved for this court's review, the record does not support the vague allegations made by Petitioner. Owens does not offer what evidence he now believes was available to sentencing counsel that they should have used to rebut the State's evidence. Sentencing counsel testified at the PCR evidentiary hearing as to why they did not present Steven Golden, Petitioner's co-defendant, as a witness even though his earlier testimony could have rebutted the State's evidence that Owens was the triggerman. (App. at 2016-18, ECF No. 16-6 at 59-61.) Sentencing counsel also testified that Owens maintained the position that he was never in the convenience store. (App. at 2016, ECF No. 16-6 at 59.) It is unclear what evidence Petitioner believes sentencing counsel should have presented. See Bassette v. Thompson, 915 F.2d 932, 941 (4th Cir. 1990) (finding appellant could not establish that counsel was ineffective for failing to call certain witnesses without advising the court of what an adequate investigation would have revealed or what testimony the witnesses might have provided).
For all of the above reasons, Petitioner's arguments that the PCR court made unreasonable factual findings and unreasonably misapplied federal law when it denied and dismissed the ineffective assistance of counsel claim raised in Ground Three are unavailing. Consequently, Petitioner is not entitled to habeas relief on this ground.
d. Ground Four
In Ground Four Petitioner contends that the PCR court made a number of errors in denying and dismissing his claims that sentencing counsel were ineffective for failing to object to statements made by two witnesses from the Greenville County Sheriff's Office—Joe Wood, an officer with the violent crimes division, and Juliana Christy, a victim advocate.
During Petitioner's third sentencing proceeding, the State called Wood to the stand to describe his interactions with Owens days after Graves was killed. (App. at 1129-43, ECF No. 16-3 at 152-66.) Wood testified that he advised Owens of his rights and then confronted Owens with the strength of the case against him. (App. at 1139-40, ECF No. 16-3 at 162-63.) In response, Owens stated, " '[T]he only thing I'm here for is to eat, sleep, shit and piss. I don't give a shit. I was born to be in jail." (App. at 1141, ECF No. 16-3 at 164.) Owens also indicated to Wood that he did not care about going to jail. (App. at 1141-42, ECF No. 16-3 at 164-65.) Owens then told Wood,
[P]eople tend to think I have a sick and evil mind, but I have a very educated mind. I would like to take the blame for all of this, but I'm not going to take it all myself. I made my mark on Hall Street after I got out of jail selling lots of drugs. I made lots of money. Yeah, I want to be remembered as the one who killed the most people in Greenville. I'm a real menace.(App. at 1142, ECF No. 16-3 at 165.) According to Wood, Owens's demeanor "was cocky. He had a don't care attitude. He smiled a lot when he was saying this." (App. at 1142, ECF No. 16-3 at 165.) Wood testified, "He's one of two people out of probably 25 years in homicide that I have interviewed that actually gave me cold chills." (App. at 1142, ECF No. 165.)
In his PCR action, Owens claimed that sentencing counsel should have objected to Wood's statement about "cold chills" because it was "improper and prejudicial opinion testimony . . . ." (App. at 1879, ECF No. 16-5 at 3.) However, the PCR court rejected that argument. The PCR court found that Wood's testimony was admissible to show character and future dangerousness. (App. at 3580, ECF No. 16-14 at 153.) The PCR court reasoned that because Wood's testimony was not improper, there was no basis for an objection, and accordingly, the PCR court found sentencing counsel were not deficient for failing to object. (App. at 3580, ECF No. 16-14 at 153.)
Owens now asserts that the PCR court made unreasonable factual findings by characterizing Officer Wood's testimony as "admissible, non-opinion evidence regarding Petitioner's character." (Pet. at 91, ECF No. 117 at 91.) Owens argues that "Wood's comment that Petitioner gave him 'cold chills' was clearly an opinion, and just as clearly not competent evidence of the Petitioner's 'character.' " (Pet. at 91, ECF No. 117 at 91.) This court disagrees. Wood testified that Owens "actually gave [him] cold chills." (App. at 1142, ECF No. 165.) That testimony can reasonably be interpreted as a description of a physical sensation that Owens's prompted in Wood, not an opinion. Owens has not shown why Wood's testimony of his observations or sensations when taking Owens's statement were not properly included in his testimony. It was not unreasonable for the PCR court to find that Wood's testimony concerning Owens's statements and demeanor constituted character evidence, and the "cold chills" statement was part of that character evidence. See State v. Nelson, 501 S.E.2d 716, 719 (S.C. 1998) ("The term 'character' refers to a generalized description of a person's disposition or a general trait such as honesty, temperance or peacefulness.") (internal citations omitted); see also Simmons v. South Carolina, 512 U.S. 154, 163 (1994) ("[W]here the jury has sentencing responsibilities in a capital trial, many issues that are irrelevant to the guilt-innocence determination step into the foreground and require consideration at the sentencing phase. The defendant's character, prior criminal history, mental capacity, background, and age are just a few of the many factors . . . that a jury may consider in fixing appropriate punishment.").
The PCR court similarly rejected Owens's claim that sentencing counsel were ineffective for failing to object to Christy's testimony as improper victim impact evidence. (App. at 3581-84, ECF No. 16-14 at 154-57.) In her testimony, Christy described the morning she told Graves's two children that their mother had been killed. (App. at 1317-24, ECF No. 16-3 at 340-47.) Christy detailed how traumatic the death notification was for the young children. She described how Graves's daughter "screamed out crying and put her little hand up on her face" and how Graves's son "just sat still really, really quietly. . . . [before he] sprang off of the couch into [Christy's] arms and just held on and cried." (App. at 1319, ECF No. 16-3 at 342.) At the conclusion of her testimony, Christy was asked how she would describe the death notification to Graves's children, and she stated, "This was the hardest, hardest case I have ever had to work on. I have never had to do death notification before, or since, and this is definitely the hardest case I have. It affected me the most deeply, and still does." (App. at 1324, ECF No. 16-3 at 347.) The PCR court found that "[b]ecause Christy's descriptions of the events constitute proper victim impact evidence, her testimony was admissible in its entirety." (App. at 3582, ECF No. 16-14 at 155.)
Petitioner contends that the PCR court never explained how it was proper, relevant, or admissible victim impact evidence "for Christy to testify about the impact that the victim's death had on her own life and career." (Pet. at 91, ECF No. 117 at 91.) The respondents, on the other hand, note that Christy was asked how she would describe "this event[,]" (App. at 1324, ECF No. 16-3 at 347), which they characterize as the notification to Graves's children, not the murder or Graves's death. (Return at 176, ECF No. 148 at 176.) The respondents offer that "[t]he context and purpose of this question and her answer was to show how profoundly sorrowful it was to the children, not her, and why she remembered this event so vividly." (Am. Return at 176, ECF No. 148 at 176.) Petitioner did not respond to that argument. While the PCR court did not make a specific finding as to the import of Christy's statement and whether it served as further evidence of how deeply Graves's death impacted her children, that is a reasonable interpretation of the findings set forth by the PCR court. The PCR court did find as follows:
Instead, Petitioner provided an almost identical recitation of the summary of the record and argument he already submitted in his Petition.
During a capital sentencing proceeding, victim impact testimony is probative of "the loss to the victim's family and to society which resulted from the homicide" and is relevant "to show the uniqueness of the victim, the harm committed by Appellant, and the impact of the victim's death." Payne v. Tennessee, 501 U.S. 808, 822, 111 S. Ct. 2597, 2606 (1991). Christy's victim impact testimony was admissible for those reasons . . . ."(App. at 3583, ECF No. 16-14 at 156.) This court cannot say that the PCR court either made unreasonable factual findings or unreasonably misapplied federal law in so finding. See Harrington v. Richter, 562 U.S. 86, 98 (2011) ("Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief. This is so whether or not the state court reveals which of the elements in a multipart claim it found insufficient . . . .").
Owens argues that the PCR court unreasonably misapplied Strickland in finding that sentencing counsel were not deficient for failing to object to statements by Wood and Christy. According to Owens, "Trial counsel was obligated to both know and claim every legitimate basis for the exclusion of the prejudicial testimony at issue, yet trial counsel did neither." (Pet. at 92, ECF No. 117 at 92.) Petitioner overstates counsel's obligations. It is well established that defendants are not entitled to perfect representation—they are entitled to constitutionally sufficient representation. Burt v. Titlow, 134 S. Ct. 10, 18 (2013) ("[T]he Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance . . . ."); Strickland, 466 U.S. at 687 (finding a defendant's burden of proving deficiency "requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment"). Even assuming sentencing counsel would have been successful in objecting to Wood's or Christy's statements, Owens was obligated to show the PCR court that sentencing counsel's failure to object rendered their representation constitutionally insufficient, and he failed to do so. Petitioner has failed to convince this court that the PCR court unreasonably misapplied Strickland in finding sentencing counsel were not deficient. See Strickland, 466 U.S. at 689 ("[A] court must indulge in a strong presumption that counsel's conduct falls within the wide range or reasonable professional assistance . . . .").
Owens additionally asserts that the PCR court did not properly analyze whether Owens was prejudiced by sentencing counsel's failure to object to the testimony of Wood and Christy. According to Owens, "the PCR court applied an impermissibly narrow, item-by-item prejudice inquiry, which is at odds with the totality of the evidence approach Strickland and its progeny have long demanded." (Pet. at 92, ECF No. 117 at 92.) The court disagrees. According to Strickland,
When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.Strickland, 466 U.S. at 695-96. In describing the ineffective assistance of counsel standard of review, the PCR court cited excerpts from the above passage. (App. at 3574, ECF No. 16-14 at 147.) Furthermore, the PCR court's order reveals that the court considered the totality of evidence in regard to Wood's testimony and Christy's testimony. For example, in finding Owens was not prejudiced by sentencing counsel's failure to object to Officer Wood's testimony, the PCR court specifically mentioned the weight of the aggravating evidence against Owens. (App. at 3580-81, ECF No. 16-14 at 153-54.) The PCR court concluded Petitioner had not met his burden of proving prejudice. (App. at 3580-81, ECF No. 16-14 at 153-54.) Contrary to Owens's contention, the order does not indicate that Owens was held to a higher standard for this particular claim of ineffective assistance of counsel.
In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. . . . Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.
To the extent Petitioner suggests that the PCR court had to consider the cumulative effect of all alleged attorney errors when it evaluated the prejudice to Owens, that is not consistent with federal law. Fisher v. Angelone, 163 F.3d 835, 852 (1998) ("Having just determined that none of counsel's actions could be considered constitutional error, . . . it would be odd to say the least, to conclude that those same actions, when considered collectively, deprived [the petitioner] of a fair trial. Not surprisingly, it has long been the practice of this Court individually to assess claims under Strickland v. Washington, 466 U.S. 668 (1984). (internal citations omitted)).
Finally, Petitioner argues that there was no evidence to support the PCR court's conclusion that Christy's testimony was " 'cumulative of other testimony already in evidence.' " (Pet. at 92, ECF No. 117 at 92 (quoting App. 3584, ECF No. 16-14 at 157)). The court disagrees. Notably, the claim that the PCR court considered was broader than that raised to this court. In his PCR action, Petitioner raised and the PCR court addressed the claim that sentencing counsel should have objected to the parts of Christy's testimony that included hearsay statements by Graves's children. (App. at 3581-84, ECF No. 16-14 at 154-57.) To the extent the PCR court found some of Christy's testimony to be cumulative, that statement appears to be directed to the hearsay in Christy's testimony. The full finding by the PCR court was that "Christy's testimony as to the children's reactions and statements was cumulative of other testimony already in evidence." (App. at 3584, ECF No. 16-14 at 157.) Indeed, there was other, non-hearsay evidence regarding the children's reaction to their mother's death, to which Christy testified herself, and which was proper even if the PCR court had found the hearsay to be improperly admitted. (App. at 1316-24, ECF No. 16-3 at 339-47.)
As set forth above, Petitioner has failed to establish that the PCR court's denial and dismissal of his Ground Four claims (which were considered separately by the PCR court) was the result of any unreasonable factual findings or resulted in a decision that was contrary to federal law. Accordingly, Petitioner is not entitled to habeas relief on this ground.
e. Ground Five
In Ground Five Owens highlights a number of statements made by the solicitor during jury selection and closing arguments. Owens argues that sentencing counsel were ineffective for failing to object to those statements and that the PCR court unreasonably misapplied federal law in denying and dismissing his claim of ineffective assistance of counsel. Owens's ineffective assistance of counsel claim as to Ground Five appears to challenge only the PCR court's finding as to prejudice. To the extent Owens argues a misapplication of federal law as to Strickland's deficiency prong, such an argument also fails.
The PCR court considered whether sentencing counsel were ineffective for failing to object to only three comments made by the solicitor during closing arguments—(1) "that the State chooses to pursue a death sentence only rarely[,]" (2) "that the jury should impose a death sentence because imposing a life sentence would give Owens too easy of a life[,]" and (3) "that the solicitor wanted the death penalty imposed himself[.]" (App. at 3594-95, ECF No. 16-14 at 167-68.) The PCR court found that none of those comments was improper. (App. at 3594-95, ECF No. 16-14 at 167-68.) As to the solicitor's statement that the State only rarely seeks a sentence of death, the PCR court found "the solicitor simply was explaining that the State does not choose to pursue the death penalty for every charge of capital murder[,]" and it was not improper for the solicitor to tell the jury so. (App. at 3594, ECF No. 16-14 at 167.) The PCR court further found that it was appropriate for the solicitor to have argued that a life sentence would have been an easy life for Owens since there was evidence that Owens himself considered a prison sentence to be insignificant. (App. at 3595, ECF No. 16-14 at 168.) The PCR court found that the solicitor neither minimized the jury's responsibility nor imposed his personal opinion on the jury. (App. at 3594-95, ECF No. 16-14 at 167-68.)
The court confines its review of this ground to those specific statements considered by the PCR court in its analysis. See Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004).
Owens has failed to show that the PCR court's conclusions rest on unreasonable factual findings or an unreasonable application of federal law. In the argument section under Ground Five, Owens expresses disagreement with the PCR court's assessment of the statements as not improper; however, he fails to lay out how the PCR court's conclusion is either contrary to or an unreasonable application of federal law. Williams v. Taylor, 529 U.S. 362, 388 (2000) ("We all agree that state-court judgments must be upheld unless, after the closest examination of the state-court judgment, a federal court is firmly convinced that a federal constitutional right has been violated.") (Stevens, J., plurality). Although the PCR court cited state law in support of its conclusions, the PCR court's reasoning was consistent with federal law. See Darden v. Wainwright, 477 U.S. 168, 181-82 (1986) (finding the prosecutors' argument did not deprive petitioner of a fair trial where it "did not manipulate or misstate the evidence, nor did it implicate other specific rights of the accused" and further noting petitioner's " 'trial was not perfect—few are—but neither was it fundamentally unfair' "); Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974) (indicating that remarks must be examined along with the entire proceedings to determine if such remarks "made . . . trial so fundamentally unfair as to deny . . . due process").
Much of Owens's argument in Ground Five is taken directly from his petition for writ of certiorari to the South Carolina Supreme Court in his PCR appeal. (Compare Petition for Writ of Certiorari at 81-91, ECF No. 15-9 at 89-99 with Pet. at 93-104, ECF No. 117 at 93-104.)
As noted above, Petitioner fails to articulate any unreasonableness in the PCR court's deficiency finding, but rather focuses his challenge on the reasonableness of PCR court's prejudice analysis. Petitioner first asserts that the PCR court "refused to consider the cumulative impact of constitutional error and instead erroneously addressed each of the Solicitor's comments in turn." (Pet. at 104, ECF No. 117 at 104.) The record belies this claim. While the PCR court considered the propriety of each comment separately, it considered the comments together when determining whether Petitioner was prejudiced by sentencing counsel's failure to object. (App. at 3594-96, ECF No. 16-14 at 167-69.) Indeed, the PCR court considered all of the challenged comments along with the entirety of the solicitor's closing arguments in assessing whether prejudice resulted from sentencing counsel's failure to object. (App. at 3595, ECF No. 16-14 at 168 ("The challenged comments made in the solicitor's argument comprised only a small portion of a lengthy closing argument. . . . Given the admitted evidence of guilt, the circumstances of the crime, the curative jury instructions, and the great amount of evidence in aggravation, Owens is unable to prove that there is reasonable probability that the jury would have returned a life verdict had the solicitor not made these comments.")).
Petitioner claims that the PCR court misapplied Strickland by misstating the proper prejudice test. Petitioner cites to the PCR court's statement that "Owens is unable to prove deficient performance because the solicitor's comments during closing argument, even if improper, are not sufficient to have Owens' death sentence overturned on appeal." (App. at 3593, ECF No. 16-14 at 166.) Reviewing the entirety of the order, it appears that that particular statement addressed the particular argument (made by Petitioner in his PCR application) that sentencing counsel failed to preserve constitutional violations for appellate review. (See App. at 1880, ECF No. 16-5 at 4 ("Counsel thus failed to preserve for appeal whether the improper arguments violated the Sixth, Eighth, and Fourteenth Amendments . . . ."); App. at 3593, ECF No. 16-14 at 166.) The PCR court later appropriately applied Strickland when it found "Owens . . . unable to prove that there is reasonable probability that the jury would have returned a life verdict had the solicitor not made these comments." (App. at 3596, ECF No. 16-14 at 169.)
Finally, Petitioner claims that the PCR court failed to address his argument that the solicitor's statements violated S.C. Code Ann. § 16-3-25(C)(1), the statutory provision which states that when the death penalty is imposed, the South Carolina Supreme Court shall review "[w]hether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor . . . ." However, Owens does not articulate how the failure by the PCR court to address particular arguments raised by Petitioner constitutes grounds for habeas relief. See 28 U.S.C. § 2254(a) ("[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.").
f. Request for Evidentiary Hearing
In his response to the motion for summary judgment, Petitioner included the following paragraph at the outset of his discussion of Grounds One through Five:
In opposition to Respondent's contention, Claim [Number] is not appropriate for Summary Judgment. Pursuant to Rule 56(a) and for the reasons set forth below,
this issue presents a genuine dispute of material fact that requires an evidentiary hearing on the merits. Fed. R. Civ. P. 56(a); Habeas Rule 8.(Pet'r's Resp. to Mot. for Summ. J. at 5, 55-56, 66, 76, 87; ECF No. 174 at 5, 55-56, 66, 76, 87.)
Petitioner did not cite to "Habeas Rule 8" for either Grounds One or Five.
Under the AEDPA, evidentiary hearings are generally prohibited even when a habeas petitioner has failed to develop the factual basis of a claim in his state court proceedings. 28 U.S.C. § 2254(e)(2); see Cullen v. Pinholster, 563 U.S. 170, 181-84 (2011) (recognizing both that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits" and also that for claims for which the factual basis was not developed in state court "§ 2254(e)(2) bars a federal court from holding an evidentiary hearing, unless the applicant meets certain statutory requirements"). However, the statute itself creates an exception to the general rule if the petitioner can show that the claim relies on a new, retroactive rule of constitutional law or "a factual predicate that could not have been previously discovered through due diligence[,]" and he can also show that "the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." Id. Nor has Petitioner shown that he is entitled to an evidentiary hearing on these preserved claims due to some other exception. See Conaway v. Polk, 453 F.3d 567, 589 (4th Cir. 2006) ("A petitioner has not 'failed to develop' the facts of his claim, however, if he has 'made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court.' ") (quoting Williams v. Taylor, 529 U.S. 420, 435 (2000)). As the Fourth Circuit has recognized:
"A petitioner who has diligently pursued his habeas corpus claim in state court is entitled to an evidentiary hearing in federal court, on facts not previously developed in the state court proceedings, if the facts alleged would entitle him to relief, and if
he satisfies one of the six factors enumerated by the Supreme Court in Townsend v. Sain, 372 U.S. 293, 313 (1963)."Juniper v. Zook, 876 F.3d 551, 563 (4th Cir. 2017) (quoting Conaway v. Polk, 453 F.3d 567, 582 (4th Cir. 2006)). The six Townsend factors are as follows:
(1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.Townsend, 372 U.S. at 313.
The conclusory paragraph included at the beginning of each of the sections discussing Petitioner's Grounds One through Five does not show why an evidentiary hearing is appropriate on any of his preserved grounds for relief. Petitioner has failed to identify what particular factual disputes he believes entitle him to a hearing under Rule 56 of the Federal Rules of Civil Procedure. Nor has Petitioner identified any circumstances that would entitle him to an evidentiary hearing based on any of the above exceptions to the general prohibition on evidentiary hearings in federal habeas corpus cases. Accordingly, his request for an evidentiary hearing on Grounds One, Two, Three, Four, and Five is denied.
2. Procedurally Barred Grounds
Owens concedes that his remaining seven grounds for relief were not raised during his state court proceedings. Thus, generally, these grounds would all be procedurally defaulted. However, Owens argues that the procedural default of most of these grounds should be excused pursuant to Martinez v. Ryan, 566 U.S. 1 (2012), due to alleged ineffective assistance of PCR counsel. (Pet., ECF No. 117 at 104-62.)
Generally, any errors of PCR counsel cannot serve as a basis for cause to excuse a petitioner's procedural default of his claims. See Coleman, 501 U.S. at 752. However, in Martinez the United States Supreme Court established a "limited qualification" to the rule in Coleman. Martinez, 566 U.S. at 15. The Martinez Court held that inadequate assistance of counsel "at initial-review collateral review proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial." Id. at 9 (emphasis added). In describing its holding in Martinez, the Supreme Court has stated that
[w]e . . . 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, 133 S. Ct. 1911, 1918 (2013) (quoting Martinez, 566 U.S. at 14, 17-18); see also Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012) (summarizing the Martinez test to require the following: "a reviewing court must determine whether the petitioner's attorney in the first collateral proceeding was ineffective . . ., whether the petitioner's claim of ineffective assistance of trial counsel is substantial, and whether there is prejudice").
Thus, relevant to this case, to excuse the procedural default of any of Owens's proposed ineffective assistance of sentencing counsel claims, he 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, 566 U.S. at 14 (comparing Miller-El v. Cockrell, 537 U.S. 322 (2003) (describing standards for certificates of appealability)). Further, he must "show that [PCR] counsel's representation during the post-conviction proceeding was objectively unreasonable, and that, but for his errors, there is a reasonable probability that Petitioner would have received relief on a claim of ineffective assistance of trial counsel in the state post-conviction matter." Sexton, 679 F.3d at 1157; see also Williams, 529 U.S. at 391 (stating that "the Strickland test provides sufficient guidance for resolving virtually all ineffective assistance-of-counsel claims"); Strickland v. Washington, 466 U.S. 668, 687 (1984) (stating to demonstrate ineffective assistance of counsel, a petitioner must show that (1) his counsel was deficient in his representation, i.e. that counsel's errors were so serious that his performance was below the objective standard of reasonableness guaranteed by the Sixth Amendment to the United States Constitution, and (2) he was prejudiced as a result).
The court notes that in Miller-El, the Supreme Court explained that to make the requisite substantial showing of the denial of a constitutional right, "a petitioner must 'sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.' " Miller-El, 537 U.S. at 336 (quoting Slack v. McDaniel, 463 U.S. 880, 484 (1983)).
a. Claims Outside of the Boundaries of Martinez
In Grounds Eight and Ten, Owens raises claims that direct appeal counsel were ineffective for failing to challenge on appeal purported errors that occurred during his third sentencing proceeding. (Pet. at 125-34, 142-46, ECF No. 117 at 125-34, 142-46.) Additionally, Owens's Ground Eleven is an unexhausted Brady violation claim, which Owens has now conceded is "not cognizable under Martinez." (Resp. to Resp't's Mot. for Summ. J. at 154, ECF No. 174 at 154.) As all of these claims fall outside the boundaries of Martinez, the procedural default of those claims cannot be excused by any alleged ineffective assistance of PCR counsel.
Brady v. Maryland, 373 U.S. 83 (1963).
The Court in Martinez stressed that its decision was one based on equitable considerations rather than any constitutional right to the effective assistance of collateral counsel. Martinez, 566 U.S. at 16. Accordingly, the Court narrowly defined the circumstances in which Martinez applies to appropriately balance the equitable considerations discussed in Martinez with the "important interests served by state procedural rules at every stage of the judicial process and the harm to the States that results when federal courts ignore these rules" recognized in Coleman, 501 U.S. at 749. The Court expressly declined to "extend [its holding] to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial, even though that initial-review collateral proceeding may be deficient for other reasons." Martinez, 566 U.S. at 16. And since the Martinez decision, the Court has declined to extend Martinez to claims other than those alleging ineffective assistance of trial counsel. Davila v. Davis, 137 S. Ct. 2058, 2065 (2017) ("Petitioner asks us to extend Martinez to allow a federal court to hear a substantial, but procedurally defaulted, claim of ineffective assistance of appellate counsel when a prisoner's state postconviction counsel provides ineffective assistance by failing to raise that claim. We decline to do so.").
As outlined above, United States Supreme Court precedent makes clear that the ineffective assistance of PCR counsel cannot constitute cause to overcome the procedural default of Owens's ineffective-assistance-of-appellate-counsel claims. Nor, as conceded by Owens, can the ineffective assistance of PCR counsel serve as cause to overcome the procedural default of a Brady violation claim. Owens has failed to allege any other cause for the procedural default of these claims. Accordingly, summary judgment should be granted with respect to the claims of ineffective assistance of direct appeal counsel alleged in Owens's Grounds Eight and Ten and the Brady violation claim in Owens's Ground Eleven.
b. Ground Six
In Owens's Ground Six, he alleges that sentencing counsel were ineffective for failing to present evidence of institutional negligence on the part of the Greenville County Detention Center and others to mitigate the homicide Owens committed between the guilt and sentencing phases of his first trial. Though this claim is procedurally defaulted because it was not raised during Owens's PCR action, Owens claims that PCR counsel were ineffective in failing to investigate, develop, and present evidence of institutional negligence, and thus, Owens attempts to overcome the procedural default pursuant to the limited exception recognized in Martinez.
During Owens's third sentencing proceeding, the jury heard evidence regarding the homicide of Christopher Lee, to which Owens confessed. Gary Dean Brown, an agent with the South Carolina Law Enforcement Division ("SLED"), testified that he took the following confession from Owens:
At eleven p.m., on 2-15-99, myself and the other inmates in my cell block watched the news and saw that I was found guilty. I then worked out and took a shower. I went to bed and woke up whenever they came to get one of the other inmates to take him to Perry. This was around three a.m. While they were getting the guy ready to go to Perry, Christopher Lee said you won't be the only one because Freddie is coming down there with you. I told him to shut the f[***] up. He told me his cousin was on the jury. I asked him if he knew that they convicted me. He said f{***] you, I know because my cousin was on the jury. End quote. I then walked into his cell and hit him in the eye. He fell down on his back. I got on top and started hitting him mostly in the face and throat. I took a pen from his right hand and my right hand and stabbed him in his right eye. I then tried to stab him in his chest but the pen would not go in. I then stabbed him in his throat. I don't know if the pen went into his throat or not. He started bleeding out of his mouth. There was a sheet tied into a snare laying on his bed. I reached and got it and put it over his head onto his neck. I wrapped it around my left hand and pulled it tight. I started hitting him in the face with my right hand. Then I started choking him with my right hand and pounding his head against the floor. He never fought back after the first punch he was out of it. He was still breathing and the stuff coming out of his mouth stunk, so I stood up and stomped his head and body with my feet. I saw a black and blue
lighter under the bunk. I grabbed it and burned him around the eye and on the left side of his head. I rammed his head into the wall. He was still moaning and breathing. I walked out of the cell to leave him alone. I heard the crazy moaning again, so I grabbed the pen off the floor where I had thrown it and went back into his cell. I got back over him and rammed the pen up his right nostril. I closed his left nostril with my left hand and started choking him with my right hand. The sheet was still around his neck. I was choking him above the sheet. Throughout all of the above he was moaning and breathing. I kept checking him to see if he was dead. I would check his pulse on his wrist, and I put my ear beside his neck and chest to hear if he was breathing. I wanted him to be dead at that time. I finally thought he was dead, so I threw him on his bunk and covered him up. The first time I put him on the bunk he fell off. I then packed my stuff and put my mattress on the table and went to sleep. While I packed my stuff, the black guy that had been on the top bunk of Christopher's cell the whole time this went on got down and put his mattress on the other table and sit down. Everyone in the cell block was awake when I left Christopher. I woke up when Hefner opened the door to bring in breakfast. When I got in the line I was third in line and Sergeant McNeill walked by and I told him to cuff me. He said he would not, and I told him he would if he with [sic] go into Christopher's cell. He looked into the cell and Hefner went into the cell. Sergeant McNeill told Hefner to cuff me, which he did. Sergeant McNeill then called someone on the radio. I really did it because I was wrongfully convicted of murder. Signed Freddie E. Owens.(App. at 1386-89, ECF No. 16-3 at 405-08.) The jury also heard testimony from Dr. Lawrence J. Minette, the forensic pathologist who performed the autopsy on Lee, who confirmed that Lee's injuries were mostly consistent with Owens's confession. (App. at 1391-1403, ECF No. 16-3 at 410-422.)
The injuries documented by Dr. Minette were not identical to the acts Owens described in his written confession. For example, Dr. Minette did not document any burning to the skin around the eye, but he did document that Lee's chin hair had been burnt. (App. at 1402-03, ECF No. 16-3 at 421-22.)
Owens now asserts that sentencing counsel should have presented evidence of the Greenville County Detention Center's negligence in an attempt to mitigate the aggravating evidence that the jury heard regarding Lee's death. Specifically, Owens alleges, upon information and belief, that there was no correctional officer assigned to be inside the cell block where he killed Christopher Lee and also that the visual security system regularly employed within the detention center was not in operation at the time of the murder. (Pet. at 104-05, ECF No. 117 at 104-05.) Owens further alleges that Lee "engaged in a pattern of abuse, taunting the petitioner about the conviction, and assuring all the cell inmates that Mr. Owens was soon to be in route to Perry Correctional Facility." (Pet. at 107, ECF No. 117 at 107.) According to Owens, such information exists in a file of the civil case brought by Lee's personal representatives against numerous defendants, including Greenville County and the Greenville County Detention Center, Clifford Lee as Personal Representative v. Greenville County, et al., C.A. #6:01-cv-427-TLW. Owens asserts that the case was settled without trial on September 12, 2002, through an Order approving settlement in an amount of $600,000.00. (Pet. at 106, ECF No. 117 at 106.) According to Owens, "a six hundred thousand dollar payment by the defendants may rightfully be characterized as an admission that, but for the institutional negligence of the defendants, Christopher Bryan Lee would not have been injured and his death would not then have been an issue during the sentencing trials." (Pet. at 107, ECF No. 117 at 107.) Owens dovetails his claim of institutional negligence with the findings by Ruben C. Gur, Ph.D., that Owens suffers from "a significantly abnormal and asymmetrical brain that has significant consequences for volition and decision making." (Pet. at 107, ECF No. 117 at 107.) He asserts "counsel were deficient in failing to mitigate the state's case by weaving together evidence that, but for institutional negligence, the Lee death would not have occurred with the evidence of profound organic brain abnormalities that substantially impaired the Petitioner's volition and his moral culpability for the death of Irene Graves." (Resp. to Resp't's Mot. for Summ. J. at 109, ECF No. 174 at 109.)
This court denied Owens's requests for any further discovery into that civil file. (ECF Nos. 74, 80, 150, 173.) The court notes that some of the allegations Owens now makes "upon information and belief" were presented to the jury—for example, Lee's taunting (App. at 1387, ECF No. 16-3 at 406). Other allegations have not been confirmed. In any event, even accepting the information posited by Owens as true, the information would not change the court's analysis of sentencing counsel's effectiveness for purposes of this habeas case.
Owens contends that none of his attorneys "thought of asking the jury to consider the Lee event as a consequence of institutional negligence." (Pet. at 109, ECF No. 117 at 109.) In support of that statement, he has submitted the affidavits of various attorneys who represented him during his state court proceedings. Godfrey, who represented Owens during his third sentencing proceeding, affirms he did not know about the civil suit by Lee's family but claims that if he had known that experts determined that institutional negligence was the proximate cause of Lee's death, then he would have used that information in his mitigation case. (ECF No. 117-3.) Paavola and Weyble, Owens's counsel during his PCR evidentiary hearing, affirm in their affidavits that Paavola attempted to get the civil files by contacting Lee's family's lawyer, but she was unsuccessful. (ECF Nos. 117-5 & 117-6.) Owens has also submitted an affidavit by James E. Aiken, a consultant on issues related to prison and jail confinement, who opines that the prison classification system in place when Owens murdered Lee was a failure. (ECF No. 117-7.)
There is no merit to Owens's Ground Six claim of ineffective assistance of sentencing counsel for failure to investigate and present evidence of institutional negligence. First, Owens has not established a substantial claim that sentencing counsel performed deficiently in failing to investigate and present such evidence. Owens compares sentencing counsel's failure to investigate the civil suit brought by Lee's family to the constitutionally deficient failure to investigate by counsel in the case of Rompilla v. Beard, 545 U.S. 374 (2005), and he urges the court that the deficiencies between sentencing counsel in this case and in Rompilla are equivalent. However, the court finds counsel's performance in the two cases readily distinguishable. In Rompilla, trial counsel were on notice that the government intended to present evidence of Rompilla's prior conviction for rape and assault as part of their case in aggravation. Id. at 383-84. Yet counsel failed to look at any part of the criminal case file until the day before the sentencing hearing (and even then counsel only reviewed the victim's testimony). Id. at 384-85. The Supreme Court found that Rompilla's counsel's representation deficient, explaining:
It flouts prudence to deny that a defense lawyer should try to look at a file he knows the prosecution will cull for aggravating evidence, let alone when the file is sitting in the trial courthouse, open for the asking.Id. at 389-90.
. . . .
The unreasonableness of attempting no more than they did was heightened by the easy availability of the file at the trial courthouse, and the great risk that testimony about a similar violent crime would hamstring counsel's chosen defense of residual doubt.
By contrast, Owens's sentencing counsel did not ignore the facts of the Lee homicide. Godfrey called the Lee homicide "truly the elephant in the room[,]" elaborating "[t]he facts of that case are bad . . . from top to bottom, when it occurred and how it occurred and what Freddie Owens did the next morning at breakfast following through with the confession." (App. at 2089, ECF No. 16-6 at 132.) Godfrey admitted that the murder was probative of Owens's character, and his strategy to combat such strong aggravating evidence at the 2006 sentencing proceeding was to show a change in Owens since the Lee homicide in 1999. (App. at 2089, ECF No. 16-6 at 132.) Thus, unlike in Rompilla, Owens's sentencing counsel were not willfully ignorant of the facts of his aggravating crime. Owens's sentencing counsel were well-versed on the Lee homicide itself though they were apparently unaware of the existence of the Lee family's civil suit. (See ECF No. 117-3.) Additionally, where the file on Rompilla's rape and assault was "readily available at the very courthouse where Rompilla was to be tried[,]" it appears that only limited information from the Lee civil suit was accessible (even had sentencing counsel attempted to investigate further). For example, while electronic copies of some of the Lee civil suit documents are available on the federal court electronic filing system, not all of the filed documents are publicly available. And PCR counsel did attempt to obtain information concerning the suit from the Lee family's attorney, but those efforts were, unsurprisingly, unsuccessful. (See ECF Nos. 117-5 & 117-6.)
It is uncontested that sentencing counsel failed to investigate and present evidence regarding institutional negligence. However, in this case, where sentencing counsel were otherwise well aware of the facts of Owens's aggravating crime and where sentencing counsel created a strategy to address that crime, sentencing counsel's failure to investigate the civil suit related to that crime (particularly, where sentencing counsel did not have any notice of the suit) does not rise to the level of deficient performance. Strickland, 466 U.S. at 691 ("In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.").
As to PCR counsel's performance, the evidence presented by Owens to this court shows that PCR counsel attempted to investigate this avenue of potential mitigation. (See ECF Nos. 117-5 & 117-6.) Though Paavola's efforts to obtain the files related to the Lee family's civil suit were stymied, she made reasonable efforts to investigate it.
Moreover, this court cannot find that sentencing counsel performed deficiently for failing to pursue a trial strategy that is borderline frivolous and potentially inflammatory. See United States v. Cronic, 466 U.S. 648, 656 n.19 (1984) ("Of course, the Sixth Amendment does not require that counsel do what is impossible or unethical. If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade."). Though the merit of the institutional negligence argument is certainly relevant to the prejudice prong of Strickland, it is also applicable to an evaluation of sentencing counsel's performance. It strains reason to believe that there was any value to presenting evidence that institutional negligence may have contributed to Lee's death when Owens's own actions were indisputably also a proximate cause. See Bishop v. S. C. Dep't of Mental Health, 502 S.E.2d 78, 84 (S.C. 1998) (indicating a defendant's negligence does not have to be the sole proximate cause for a plaintiff to be successful in their negligence action, "instead, the plaintiff must prove the defendant's negligence was at least one of the proximate causes of the injury"). The possibility that the detention center was negligent under a civil tort standard in failing to prevent Owens from having the opportunity to murder Lee does not diminish Owens's own criminal culpability in beating, burning, stomping, and choking Lee until he was sure that Lee was dead. And it would have been easy for a jury to see through such an attempt to shift blame.
Even if Owens were able to make a substantial claim that sentencing counsel were deficient for failing to investigate and present evidence of institutional negligence, his claim that he was prejudiced by their failure lacks merit. Owens argues that sentencing counsel's failure to present evidence of institutional negligence in conjunction with the evidence of his abnormal brain renders the jury's death sentence "fundamentally unreliable." (Resp. to Resp't's Mot. for Summ. J. at 113, ECF No. 174 at 113.) Thus, according to Owens,
[t]his Court must substantially temper, or remove altogether, the State's primary aggravator, the death of Mr. Lee, when undertaking the balancing assessment—Sears v. Upton, 561 U.S. 945 at 955 (2010)—to determine prejudice since clearly, that aggravator would not have occurred "but for" the institutional negligence of the detention authorities.(Resp. to Resp't's Mot. for Summ. J. at 113, ECF No. 174 at 113.) This argument is confounding.
Owens has not shown that evidence of negligence on the part of the Greenville County Detention Center or the other civil defendants would render the Lee homicide less aggravating during the sentencing phase. And Owens's contention that institutional negligence (whether in combination with evidence of his abnormal brain or not) "substantially temper[s]" or mitigates his actions in the Lee homicide is untenable. Any institutional negligence is simply not mitigating to the Lee homicide where Owens's self-described actions were so brutal and the details of the homicide are so gruesome. See Sears v. Upton, 561 U.S. 945, 954 (2010) ("[T]here is no prejudice when the new mitigating evidence 'would barely have altered the sentencing profile presented' to the decisionmaker[.]") (quoting Strickland, 466 U.S. at 700). Even assuming Owens is correct that Lee's death may not have happened "but for" negligence on the part of the Greenville County Detention Center and the other civil defendants, it is beyond question on this record that "but for" Owens's criminal conduct, Lee would not have been killed. Accordingly, evidence of any institutional negligence could have had only a negligible impact when considered with the other evidence that the jury heard during the sentencing proceeding. Additionally, any attempt to shift blame for the Lee homicide to the detention center could also have emphasized Owens's dangerousness and could invite the idea that if he received a sentence of life imprisonment, and the prison system failed to properly confine him at all times, the result could be fatal. Moody v. Polk, 408 F.3d 141, 151-52, 154 (4th Cir. 2005) (finding no prejudice where additional evidence offered by petitioner was "double-edged," as likely to harm the petitioner as to hurt him). Thus, the court finds Owens's claim that he was prejudiced by sentencing counsel's failure to investigate and present evidence on institutional negligence lacks any merit.
Because Owens has failed to show that his underlying claim of ineffective assistance of counsel is substantial, this court cannot excuse the procedural default of Ground Six under the Martinez standard. Accordingly, summary judgment should be granted on this ground.
c. Ground Seven
In Ground Seven, Owens claims that sentencing counsel were ineffective for "failing to investigate, develop[,] and present objective and scientific evidence of structural and functional brain damage resulting from early childhood trauma[,] which materially limits [Owens's] ability to make informed decisions, learn from past behavior, and control impulses. . . ." (Pet. at 113, ECF No. 117 at 113.) Though Owens admits that this ground is procedurally defaulted, he attempts to overcome the procedural default pursuant to Martinez by arguing that PCR counsel were also ineffective in failing to investigate and present evidence of his brain damage.
Owens presents two reports in support of Ground Seven. The first, by Ruben C. Gur, Ph.D., summarizes findings following a volumetric analysis of magnetic resonance imaging ("MRI") and a quantitative analysis of positron emission tomograph ("PET") performed by Dr. Gur and his colleagues at the University of Pennsylvania. (ECF No. 117-17.) According to Dr. Gur's report, the analyses that he performed show "abnormalities indicating brain damage . . . in regions that are very important for regulating emotions and behavior." (ECF No. 117-17 at 4.) The report summarizes some of Dr. Gur's findings, explaining that "abnormalities observed in the frontal regions of Mr. Owens's brain would indicate diminished executive functions such as abstraction and mental flexibility, planning, moral judgment, and emotion regulations, moderating limbic arousal, and especially impulse control." (ECF No. 117-17 at 4.) Dr. Gur further opines:
From Dr. Gur's report, the court gathers that the MRI and PET scan were both performed at the Medical University of South Carolina, but the analyses were performed at the University of Pennsylvania.
Abnormally high metabolism in cortical regions most likely indicates compensatory hyper-vigilance of the "default mode" brain state. Such a pattern of activation indicates that Mr. Owens has an inappropriately high level of cognitive control over emotion processing and experience. Furthermore, reduced activity in emotion-related limbic regions, as is the case here, could result in "kindling" or sudden hyper-excitability. A damaged amygdala will misinterpret danger signals and when excited it will issue false alarms that require intact frontal components of the limbic system for modulation. In Mr. Owens's case, the cortex is already at a hyper-activated state. When Mr. Owens's amygdala becomes activated, his frontal lobe would be unable to exercise control as a normal frontal lobe would because his "thinking brain" is not only damaged but is already operating at full capacity in its hyper-vigilant state.(ECF No. 117-17 at 4-5.)
The second report, by Stacey Wood, Ph.D., is a neuropsychological review and evaluation of Owens. (ECF No. 117-18.) Based on Dr. Wood's review of various materials, including Dr. Gur's report, Owens's medical records, and the reports and testimonies of various experts who testified during Owens's state court proceedings, and based on her own evaluation of Owens, Dr. Wood concludes that Owens has significant brain impairment. (ECF No. 117-18 at 17.) Dr. Wood indicates that the results of her testing align with the neuropsychological testing completed by experts retained for Owens's state court proceedings. (ECF No. 117-18 at 21.) But she expresses a belief that "[e]arly indicators of brain injury were present during the developmental period and warranted further investigation. As such, the possibility of an organic cause for some of Mr. Owen's [sic] profile should have at least been considered and explored during previous phases of this matter." (ECF No. 117-18 at 21.)
According to Owens, both trial and collateral counsel were ineffective for failing to further investigate whether Owens had brain deficiencies. Owens points to two "medical factors" that he believes should have alerted sentencing counsel to the need to investigate further—the diagnosis of a seizure disorder and the thirteen-point difference between his verbal and performance IQ. (See Resp. to Resp't's Mot. for Summ. J. at 126, ECF No. 174 at 126.) The respondents, on the other hand, assert that sentencing counsel's investigation into Owens's mental heath and brain function was not deficient, noting the breadth of sentencing counsel's investigation:
Counsel reviewed Dr. Jim Evans' previous findings and testimony, and on the recommendation of his own retained psychiatric expert, retained another more credible neuropsychologist, Dr. Tora Brawley, who conducted her own tests on Owens. Counsel called her and Doctors Thomas Cobb and Donna Schwartz-Watts, both psychiatrists, to testify to those results and their expert opinions before the 3rd proceeding jury.(Am. Return at 227-29, ECF No. 148 at 227-29.) Owens, on the other hand, disagrees that sentencing counsel's investigation was reasonable. He claims that the testimony of Dr. Brawley at the sentencing proceeding and of Dr. Schwartz-Watts at the PCR evidentiary hearing undermines the notion that "trial counsel's case was sufficient." (Resp. to Resp't's Mot. for Summ. J. at 126, ECF No. 174 at 126.) Owens notes that "Dr. Brawley, despite being a qualified neuropsychologist, described her work on Petitioner's case as 'very limited.' " (Resp. to Resp't's Mot. for Summ. J. at 126, ECF No. 174 at 126.) And "Dr. Schwartz-Watts testified that she perceived clues that Petitioner had a neuropsychological deficits, but was not allowed the time to pursue them in order to form an actual opinion on the matter." (Resp. to Resp't's Mot. for Summ. J. at 126, ECF No. 174 at 126.)
A review of the record compels the conclusion that sentencing counsel were not deficient for failing to investigate further into Owens's mental health and brain function. In reaching that conclusion, the court has paid special attention to the investigation performed by sentencing counsel and what the state court record shows sentencing counsel knew at the time regarding the possibility of abnormal brain function in Owens. At the PCR evidentiary hearing, Godfrey testified that the fact that Owens had already been sentenced to death in two prior sentencing proceedings had a "[t]remendous" impact on his approach to the case. (App. at 2046, ECF No. 16-6 at 89.) Godfrey explained, "I knew what didn't work the first two times. I set about trying to find some way to distinguish Freddie from the first two cases to this third [resentencing]. I wanted to try to find new facts." (App. at 2046-47, ECF No. 16-6 at 89-90.) Thus, sentencing counsel developed a mitigation case that juxtaposed who Owens was when he committed murder and how his difficult childhood had led him to that point with the person he had become by the time of his sentencing proceeding and how he had reached out for help and tried to better himself. (App. at 2046-48, ECF No. 16-6 at 89-91.) As part of that mitigation case, sentencing counsel presented the testimony of three mental health experts, Dr. Thomas Cobb, Dr. Donna Schwartz-Watts, and Dr. Tora Brawley.
The court has previously referenced Dr. Cobb's testimony and how it fit into sentencing counsel's mitigation presentation. See supra pp. 26-28. Dr. Cobb's testimony became one of the cornerstones of sentencing counsel's mitigation presentation because through that testimony, sentencing counsel were able to show a change in Owens and a difference between him and others. (App. at 2047, ECF No. 16-6 at 90 ("Everyone knows a lot of these folks want treatment because they want drugs. . . . Freddie said he would like to have treatment because he did not want to get in trouble.")). According to Dr. Cobb's testimony, he diagnosed Owens with impulse control disorder and anxiety disorder, and he talked with Owens about a plan for reducing his anxiety. (App. at 1494-96, ECF No. 16-4 at 27-19.) Dr. Cobb also prescribed a number of medications for Owens, and those medications seemed to help Owens control himself. (App. at 1496-99, ECF No. 16-4 at 29-32.)
Sentencing counsel also retained Donna Schwartz-Watts, M.D., an expert in forensic psychiatry. Godfrey testified that he chose Dr. Schwartz-Watts because he knew her very well and had confidence in her ability to further his goal of presenting a "logical, cogent" mitigation presentation. (App. at 2053-54, ECF No. 16-6 at 96-97.) He also confirmed that he spoke with Dr. Schwartz-Watts about the neuropsychological aspects of the case and that they secured a neuropsychologist, Dr. Brawley, to evaluate Owens on Dr. Schwartz-Watts's recommendation. (App. at 2054, ECF No. 16-6 at 97.) During her testimony at the sentencing proceeding, Dr. Schwartz-Watts explained that she ordered a neuropsychological evaluation due to Owens's history as "a very impulsive individual" and based on his history of a head injury. (App. at 1513, ECF No. 16-4 at 46.) Dr. Schwartz-Watts testified, "I just wanted to make sure that some of his impulsivity wasn't coming from brain damage." (App. at 1514, ECF No. 16-4 at 47.) At the sentencing proceeding, Dr. Schwartz-Watts testified that Owens suffered from chronic depression, attention deficit disorder, and antisocial personality disorder. (App. at 1527-30, 1532, ECF No. 16-4 at 60-63, 65.) She also testified that Owens's "impulsivity comes from having Attention Deficit Disorder, having the chronic depression and his own personality structure." (App. at 1532, ECF No. 16-4 at 65.)
In turn, Dr. Brawley testified to the following:
[I]n this evaluation, I was asked to look at his brain function, you know, present and past too. And so from that standpoint, from the neuropsychological standpoint on what I have documented is . . . there are some select areas of deficit in Mr. Owens [sic] brain and he does have a history of lifelong problems with brain function and also psychiatric issues.(App. at 1482-83, ECF No. 16-4 at 15-16.) However, Dr. Brawley did not find significance to Owens's history of head trauma, stating "I only found select deficits. There were not big things wrong with Mr. Owens['s] brain when I saw him. . . ." (App. at 1484, ECF No. 16-4 at 17.) When specifically asked if she found anything "that rises to the level of any mental illness or brain malfunction[,]" Dr. Brawley replied, "Not from a neuropsychological standpoint." (App. at 1485, ECF No. 16-4 at 18.)
Based on the above, Owens has failed to show that sentencing counsel's investigation was unreasonable, as the record shows that sentencing counsel investigated Owens's mental health and brain function, and they employed multiple experts to help them do so. There are no indications that any of those experts advised sentencing counsel to obtain neuroimaging, and the conclusion of sentencing counsel's retained neuropsychologist was that Owens did not have any significant brain dysfunction. Sentencing counsel were not ineffective for failing to pursue brain imaging when there was no reason to believe that such further investigation was necessary. See Wilson v. Greene, 155 F.3d 396, 403 (4th Cir. 1998) ("To be reasonably effective, counsel was not required to second-guess the contents of [their expert's] report. . . . [C]ounsel understandably decided 'not to spend valuable time pursuing what appeared to be an unfruitful line of investigation.' ") (internal citations omitted). While Owens argues that a diagnosis of a seizure disorder and a thirteen-point difference between his verbal and performance IQ should have alerted sentencing counsel to the need for brain imaging, Owens has not pointed to any case law that requires reasonable attorneys to obtain neuroimaging studies when certain medical factors are present. Sentencing counsel retained appropriate experts to investigate Owens's mental health and brain function, and based on their findings, there was no need for further investigation. In that respect, sentencing counsel's performance was reasonable. See Wiggins v. Smith, 539 U.S. 510, 527 (2003) ("In assessing the reasonableness of an attorney's investigation, . . . a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.").
Dr. Wood's claim that Owens was diagnosed with a seizure disorder is highly questionable when viewed with the remainder of the record before this court. Her report does not specifically identify where in his prison records she saw that Owens was diagnosed with a seizure disorder. (ECF No. 117-18 at 7.) However, she does indicate that Depakote was administered for seizures. (ECF No. 117-18 at 8.) The prison doctor who prescribed Depakote to Owens, Dr. Cobb, testified that he prescribed Depakote to Owens to help stabilize his mood and help him control his impulsivity. (App. at 1496-97, ECF No. 16-4 at 29-30.) The other medications that Dr. Cobb prescribed to Owens are also listed in Dr. Wood's report though it appears she has only indicated their common usage in her report, as opposed to Dr. Cobb's particular reasoning for prescribing those medications. For example, Dr. Wood lists "Vistaril (antihistamine/sleep aid)" and "Risperidal (antipsychotic/Impulse control)" in her report (ECF No. 117-18 at 8), but Dr. Cobb indicated that he prescribed the Vistaril for its "side effect of making somebody a little bit calm" and the Risperdal for its ability "to help control aggression and to slow people down." (App. at 1496, ECF No. 16-4 at 29.) Multiple medical professionals examined Owens and his medical records in preparation for the third sentencing proceeding, and none of them indicated that Owens had a history of a seizure disorder.
Owens claims that Dr. Brawley's testimony at the sentencing proceeding and Dr. Schwartz-Watts's testimony at the PCR evidentiary hearing "undermine [the] claim that trial counsel's case was sufficient." (Resp. to Resp't's Mot. for Summ. J. at 126, ECF No. 174 at 126.) He notes that Dr. Brawley described her work as "very limited." (Resp. to Resp't's Mot. for Summ. J. at 126, ECF No. 174 at 126 (quoting App. at 1482, ECF No. 16-4 at 15)). But the limited scope of Dr. Brawley's work on Owens's behalf does not diminish the fact that she felt comfortable opining that he had only "select areas of deficit" and not any brain malfunction "from a neuropsychological standpoint." (App. at 1482-83, 1485, ECF No. 16-4 at 15-16, 18.) As to Dr. Schwartz-Watts, Owens claims she "testified that she perceived clues that Petitioner had neuropsychological deficits, but was not allowed the time to pursue them in order to form an actual opinion on the matter." (Resp. to Resp't's Mot. for Summ. J. at 126, ECF No. 174 at 126) (citing App. 2278, 2286, ECF No. 16-6 at 321, 329). That assertion misconstrues the record. At the PCR evidentiary hearing, Dr. Schwartz-Watts stated multiple times that she believed that Owens needed a neuropsychological evaluation. (App. at 2278, 2285, ECF No. 16-6 at 321, 328.) However, there is no indication that Owens did not receive the neuropsychological evaluation that she requested. Indeed, she also testified that she recommended Dr. Brawley to sentencing counsel and that she preferred Dr. Brawley to Dr. Jim Evans, the previous neuropsychologist who had evaluated Owens, because she had a history of working with Dr. Brawley and found her to be more reliable. (App. at 2279-81, ECF No. 16-6 at 322-24.) There is no dispute that Dr. Brawley evaluated Owens. As such, it appears that Dr. Schwartz-Watts successfully procured the neuropsychological evaluation that she believed Owens needed. It is unclear where Owens gleaned that Dr. Schwartz-Watts was not given the time to pursue any of her concerns, but that statement is not supported by the record. Accordingly, Owens has failed to show that either Dr. Brawley's sentencing proceeding testimony or Dr. Schwartz-Watts's PCR testimony undermines the reasonableness of sentencing counsel's investigation into Owens's mental health and brain function.
The record reflects that Dr. Schwartz-Watts became a part of the trial team in early September 2006 and that, at that time, the trial was set for early October 2006. (App. at 2284, ECF No. 16-6 at 327.) According to her testimony, she was "very concerned about that and . . . talked . . . with Judge Patterson who assured [her] he would make sure Mr. Owens was available and transported . . ." so that Dr. Schwartz-Watts could properly evaluate him. (App. at 2284, ECF No. 16-6 at 327.) After meeting with Owens, Dr. Schwartz-Watts contacted Godfrey and asked him to get a continuance. (App. at 2285, ECF No. 16-6 at 328.) Godfrey requested a continuance from the court. (App. at 13-16, ECF No. 16-1 at 16-19.) And ultimately jury selection for the third sentencing proceeding began on November 6, 2006. (App. at 45, ECF No. 16-1 at 48.)
Not only did sentencing counsel seek the guidance of a treating psychiatrist, a forensic psychiatrist, and a neuropsychologist in preparing their mitigation case, but they also had the benefit of reviewing the mitigation evidence from Owens's previous two sentencing proceedings. At the second sentencing proceeding, James Evans, Ph.D., an expert in the field of neuropsychology, testified about his own assessment of Owens. That assessment included a number of neuropsychological tests and a quantitative EEG ("QEEG"). (ROA2 at 411-16, ECF No. 15-7 at 414-19.) According to Dr. Evans, the QEEG "indicated quite a few different abnormalities, but these tended to be frontal and right hemisphere abnormalities more so than other areas of his brain." (ROA2 at 416, ECF No. 15-7 at 419.) Dr. Evans described the significance of those findings as "mild brain dysfunction" but further indicated that "even though the test showed relatively mild, the results could be relatively severe in terms of temper-impaired attention, behavioral impulsivity." (ROA2 at 417, ECF No. 15-7 at 420.) Thus, sentencing counsel had at their disposal very similar evidence to that which Owens now asserts sentencing counsel should have pursued further—they had results from a form of neuroimaging that showed brain abnormalities and a neuropsychologist who could attribute some of Owens's behavioral characteristics to those abnormalities. Godfrey testified at the PCR evidentiary hearing that he declined to use Dr. Evans as a witness, in part because he wanted a witness whose testimony would "more easily dovetail in with Donna Schwartz-Watts and what Donna Schwartz-Watts had to say[,]" but also because he was concerned about how a jury would view Dr. Evans's results because they had to be sent "out west, like to California" to be analyzed. (App. at 2094-95, ECF No. 16-6 at 137-38.) Godfrey further explained:
Though the transcript indicates that Dr. Evans had a medical degree (ROA2 at 410, ECF No. 15-7 at 413), his testimony shows he had a Ph.D. in psychology with post-doctoral training in neuropsychology (ROA2 at 56-57, ECF No. 15-7 at 59-60).
It just struck me as odd that you are going way out of state to get a diagnosis. Our problems were bad enough . . . . I did not want to give the jury a phantom issue of the defense trying to throw smoke and mirrors at them by having some West Coast doctor say something.(App. at 2096, ECF No. 16-6 at 139.) Presumably, sentencing counsel would have had similar concerns regarding potential jury skepticism of the analysis performed by Dr. Gur at the University of Pennsylvania when the neuroimaging tests themselves were able to be conducted locally. But in any event, Owens has not established deficiency on the part of sentencing counsel where sentencing counsel thoroughly investigated potential neuropsychological issues and relied on the opinions of their chosen experts in presenting such evidence to the jury. See Byram v. Ozmint, 339 F.3d 203, 210 (4th Cir. 2003) ("[A] failure to 'shop around' for a favorable expert opinion after an evaluation yields little in mitigating evidence does not constitute ineffective assistance.") (quoting Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir. 1992)).
For all of the above reasons, Owens has failed to show a substantial claim that sentencing counsel performed deficiently in their investigation into Owens's brain function. As such, the requirements of Martinez have not been satisfied, and the court cannot excuse the procedural default of Owens's Ground Seven.
d. Ground Eight
In Ground Eight Owens raises a claim of ineffective assistance of sentencing counsel for their failure to challenge multiple jury instructions. Specifically, Owens contends that sentencing counsel should have objected to the trial court's instructions that the jury could make a recommendation of a life sentence and that any such recommendation had to be unanimous. According to Owens, those instructions were not consistent with state statute. And Owens further argues that sentencing counsel's failure to object prejudiced him. The respondents disagree and contend that the trial court's instructions were consistent with South Carolina law. Accordingly, they submit that there was neither deficiency on sentencing counsel's part nor resulting prejudice.
In his Petition, Owens points to the following five statements made by the trial court during the sentencing charge:
"Ladies and gentlemen, any decision that you make with regard to any sentence for this defendant must be unanimous. All twelve of you who deliberate must agree." Trans. p. 1585.
"However, a decision to impose a life sentence, like a decision to impose one of death, must be unanimous." Trans. p. 1594.
"Now the next document I believe that you have is the unanimous recommendation of a sentence for life." Trans. p. 1597.
"Now, ladies and gentlemen, any decision that you make in this case must be unanimous. All twelve of you have to agree." Trans. p. 1598.(Pet. at 126, ECF No. 117 at 126.) According to Owens, the above statements were erroneous because they do not comport with the following excerpt from the South Carolina statute outlining the process for sentencing proceedings in death penalty cases:
"You may impose a sentence of life imprisonment only if you unanimously find beyond a reasonable doubt one, or both, of the aggravating circumstances and agree that the sentence should be life imprisonment." Trans. pp. 1598-99.
The jury shall not recommend the death penalty if the vote for such penalty is not unanimous as provided. If members of the jury after a reasonable deliberation cannot agree on a recommendation as to whether or not the death sentence should be imposed on a defendant found guilty of murder, the trial judge shall dismiss such jury and shall sentence the defendant to life imprisonment as provided in subsection (A).S.C. Code Ann. § 16-3-20(C). Based on that language, Owens argues that the trial court went beyond the statute when it charged the jury that they could recommend life and committed "clear error" when it charged that a recommendation of life had to be unanimous. (Pet. at 128, ECF No. 117 at 128.) Due to the discrepancy between the statute and the jury instructions, Owens submits that the instructions violated his rights under the Fifth, Sixth, and Eighth Amendments, and he claims sentencing counsel were ineffective for failing to object to the jury instructions. (Pet. at 128, ECF No. 117 at 128.)
Having reviewed the parties' arguments and the applicable law, the court finds that Owens's argument that the jury instructions misstated the law in South Carolina is without merit. As to whether it was proper for the trial court to instruct the jury on the option to recommend life, the statute itself contemplates that possibility—"[i]f members of the jury after a reasonable deliberation cannot agree on a recommendation as to whether or not the death sentence should be imposed on a defendant found guilty of murder . . . ." S.C. Code Ann. § 16-3-20(C) (emphasis added). The South Carolina Supreme Court has also confirmed that "[t]he situation implicitly envisioned here is that normally the jury will unanimously either recommend life or death." State v. Adams, 283 S.E.2d 582, 587 (S.C. 1981), overruled on separate grounds by State v. Torrence, 406 S.E.2d 315 (S.C. 1991). Turning to Owens's contention that it was clear error for the trial court to instruct that a recommendation of life had to be unanimous, this same argument was recently considered by the South Carolina Supreme Court in Winkler v. South Carolina, 795 S.E.2d 686 (S.C. 2016). Winkler argued that trial counsel's "decision not to object was unreasonable in light of the trial court's instruction . . . 'the decision of the jury must be unanimous[,]' " but the South Carolina Supreme Court rejected that argument, noting "[t]he trial court's instruction was correct in this respect . . . because a verdict must, under law, be unanimous." Winkler, 795 S.E.2d at 694 (citing S.C. Const. art. V, § 22 ("All jurors in any trial court must agree to a verdict in order to render the same."); State v. Copeland, 300 S.E.2d 63, 70 (S.C. 1982) (holding the trial court "correctly stated the applicable law" when it charged the jury in the sentencing phase of a capital trial "your verdict or recommendation . . . must be unanimous on each count, that is, your verdict or recommendation must be the verdict or recommendation of all twelve of you")).
Therefore, the court concludes that Petitioner has failed to show that the trial court's instructions were inconsistent with South Carolina constitutional, statutory, or case law. Aside from the perceived conflict Owens sees between the statute and the jury instructions, he has not shown any other reason for sentencing counsel to object to those instructions. But as the jury instructions were a correct statement of the law, there was no reason for sentencing counsel to object. See Moody v. Polk, 408 F.3d 141, 151 (4th Cir. 2005) (holding counsel is not required to file frivolous or futile motions). Also, sentencing counsel would not have prevailed on their objection had they made one. Because Owens has failed to show either deficiency or prejudice, Owen's underlying ineffective-assistance-of-counsel claim is not substantial. As such, the procedural default of his Ground Eight cannot be excused.
e. Ground Nine
Owens asserts in his Ground Nine that sentencing counsel were ineffective for failing to investigate, develop, and present mitigation evidence concerning early childhood trauma and sexual abuse. In particular, Owens now presents evidence that his mother was physically abused by his father while Owens was in utero, that Owens was physically abused by his father when he was a small child, and that Owens had a hidden sexual past. To some extent, this ground is an elaboration on Owens's Ground One. Owens takes issue with the investigation performed by sentencing counsel and their team, and he now presents additional evidence concerning his history and background that he believes sentencing counsel should have uncovered and presented to the jury.
Owens offers the affidavit of his mother, Dora Diane Mason. (ECF No. 117-9.) In her affidavit, Mason reports that Owens's father, Freddie Eugene Massey, beat, kicked, shoved, hit, and choked Mason. (ECF No. 117-9.) She also states that Massey beat her during every pregnancy and that she once miscarried as a result of his physical abuse. (ECF No. 117-9.) In another affidavit, Owens's sister, Marie Owens, confirms that Massey was physically abusive to her mother during her pregnancies with Marie Owens's brothers Donald, Lorenzo, and Satail, and Marie Owens recounts her recollection of the beating that led to Mason's miscarriage. (ECF No. 117-10.) There is also an affidavit by Owens's aunt, Maxine Mingo, stating that she saw Massey beat Mason while she was pregnant with Freddie. (ECF No. 117-11.)
The affidavits by Mason, Marie Owens, and Mingo all discuss the physical violence that Owens suffered at the hands of Massey. (ECF Nos. 117-9, 117-10, 117-11.) Those affidavits relate that Owens was beaten severely as a very young child. For example, Mason recounts the following episode:
I remember a time, when Freddie was about 1 year-old—he was very small—that his father got mad at him and whooped him and shook him so hard. He shook him so hard over and over for a long time. After he stopped and I was able to get Freddie, I couldn't get Freddie to stop crying no matter how I tried. He just couldn't stop crying for a very long time. It was bad.(ECF No. 117-9.)
Owens again asserts that the mitigation presentation was lacking, now claiming that sentencing counsel should have presented evidence of Massey's physical violence toward Owens's mother and himself. Owens further submits that the evidence of Massey's attack on him as a toddler "would have suggested the need for engaging medical experts to conduct a neuropsychological and neuroimaging to assess Owens for brain damage." (Pet. at 139, ECF No. 117 at 139.)
Owens also contends that sentencing counsel should have uncovered "the full story of the sexual history of Freddie Eugene Owens[,]" which includes "sexually aberrational behavior created by his environment . . . ." (Pet. at 139, ECF No. 117 at 139.) As evidence of his sexual history, Owens presents a letter that he penned to habeas counsel, which vaguely describes a time in his life when he would walk the streets alone and how "many a man would stop and offer me rides; or offer me money for things I care not to discuss . . . ." (ECF No. 117-15 at 2.) Owens goes on to tell counsel that he "will not entertain that section of my past." (ECF No. 117-15 at 3.) And he cautions counsel, "It would be disrespectful of you to ever speak to me about it again. Leave it be." (ECF No. 117-15 at 3.) Owens has also provided the affidavit of a social historian, Jan Vogelsang, who opines that Owens's desire to stay silent on his full sexual history is consistent with that of a male who was sexually abused as a child. (ECF No. 117-12.) Vogelsang also explains how the evidence of Owens's sexual history could have been presented to the jury, along with evidence of in utero abuse, to show the impact that those factors and others had on Owens's development. (ECF No. 117-12 at 5-6.)
Owens claims that sentencing counsel's investigation into Owens's history was inadequate since they failed to uncover and present evidence of physical abuse by his father while Owens was in utero and when he was a young child and of Owens's full sexual history. However, as already discussed herein, sentencing counsel and their team performed an extensive and thorough investigation. The state court record shows that sentencing counsel engaged mitigation investigators to look into Owens's history, and those investigators spoke with Owens's family members. For example, Marjorie Hammock, who served as the social historian in all three of Owens's sentencing proceedings, testified that she spoke with Owens's mother, both of his sisters, one of his brothers, his stepfather, and a number of other non-family witnesses. (App. at 1456, ECF No. 16-3 at 475.) Additionally, as discussed previously with respect to Ground One, sentencing counsel in Owens's third sentencing proceeding had the benefit of utilizing the mitigation investigations that the previous two sets of counsel had performed. The jury may not have heard specifics about an assault on Owens's mother while he was in utero or of the specific instance where Owens was beaten or shaken by his father as a young child. However, Hammock did convey to the jury that violence was part Owens's childhood—"it's also a great deal of violence . . . that the client experienced, because . . . both his stepfather and his father were described as very violent people, and his mother was a victim of that violence in many instances." (App. at 1457, ECF No. 16-3 at 476.)
Hammock later testified, "Freddie [Massey] . . . had very, very little contact with the family. Also described as an extremely violent person, who was abusive to Dora Mason." (App. at 1462, ECF No. 16-3 at 481.)
Furthermore, even assuming deficient performance by sentencing counsel, the court finds that Owens was not prejudiced by any failure to uncover and introduce the evidence he now presents in Ground Nine. There is no reason to believe that the allegations of in utero and early childhood physical abuse would have had any impact on the investigation into potential brain damage. As previously discussed in Ground Seven, Dr. Schwartz-Watts was already concerned about potential brain damage based on Owens's history of head injury, and she requested a neuropsychological consultation to investigate that possibility. The outcome of that neuropsychological evaluation was that Owens did not have any major brain malfunction. Furthermore, as outlined in Ground One, the jury heard about Owens's difficult childhood, and the court incorporates by reference its earlier description of the mitigation case presented by sentencing counsel. But the aggravating evidence was extremely strong, and the above evidence adds little to the strength of the mitigation case. See Strickland, 466 U.S. at 696 (noting that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors that one with overwhelming record support"). The court finds that there is no reasonable probability that the jury would have returned with a different sentence had they heard the evidence regarding in utero and early childhood physical abuse and Owens's full sexual history. See Strickland, 466 U.S. at 694 ("The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."); see also Wiggins v. Smith, 539 U.S. 510 (2003) ("In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence.").
Owens has failed to present a substantial Strickland claim in Ground Nine. Consequently, the procedural default of this ground must stand.
f. Ground Ten
In Ground Ten, Owens asserts that sentencing counsel were ineffective for failing to object to the introduction of a list of his prison disciplinary infractions. Owens argues that the admission of that evidence was reversible error because the disciplinary infractions "were disproportionate to the crime for which the jury was sentencing the petitioner, did not result in injury, were in part administrative violations common to every inmate and were not characterological of the Petitioner's propensity for future violence." (Pet. at 142, ECF No. 117 at 142.) The court disagrees that sentencing counsel should have objected on the bases now offered by Owens or that such an objection would have been successful.
As discussed previously in this court's discussion of Ground Two, during Owens's third sentencing proceeding, the State sought to admit summaries of Owens's prison disciplinary infractions through a records custodian for SCDC. (App. at 1404-35, ECF No. 16-3 at 423-54.) Sentencing counsel initially objected to the trustworthiness of the records. (App. at 1404-07, ECF No. 16-3 at 423-26.) The trial court ultimately ruled that certain disciplinary infractions had to be excluded altogether and others had to be pared down to be presented to the jury. (App. at 1422-25, 1430-35, ECF No. 16-3 at 441-45, 449-54.) The following list of twenty-eight disciplinary infractions was read to the jury:
April 13, 2001, breaks toilet, sink and sprinkler.
. . .
May 26, 2001, throws hot water on another inmate.
May 27, 2001, had a six and a half inch shank made from fencing and toothbrush.
June 14, 2001, spat on a correctional officer.
February 8, 2002, a 14 inch solid brass shank.
March 29, 2002, stabs correctional officer Smith in the face with a shank.
June 12, 2002, stabs Undra Golden in the shower.
June 15, 2002, kicks an inmate who is restrained in a restraint chair.
August 5, 2002, slaps a male nurse in the face.
August 17, 2002, throws a food tray and hits officer Guess in the head.
August 23, 2002, struck officer in the face with his fist.
October 22, 2002, hits officer Eaton in face with the fist.
October 23, 2002, sets fire to cell.
December 22, 2002, shank made from fencing.
December 30, 2002, a ten inch made from a push rod of the sink.
July 17, 2005, spits in the face of officer Jones.
August 26, 2005, slaps officer Henley in the face.
August 31, 2005, sets fire to cell.
September 11, 2005, threatens officer Jones.
January 1, 2006, a 12 inch homemade knife.
January 3, 2006, breaks cell door window with broom stick.
January 13, 2006, throws feces on officer Williams hitting him in the face.
February 3, 2006, spits in the face of another inmate.
February 4, 2006, orally threatens officer Jones.
February 28, 2006, a 12 inch weapon hidden between the mattresses.
April 4, 2006, an eight and a half inch shank made from flat metal sharpened at the edge and wrapped with ace bandage.
May 1, 2006, sets fire to his mattress.
May 20, 2006, throws coffee on officer Smith.(App. at 1439-41, ECF No. 16-3 at 458-60.)
Owens characterizes the above list as "a long list of administrative regulatory in-custody violations common to most every inmate." (Pet. at 145, ECF No. 117 at 145.) He further claims that the "list was irrelevant to a proper sentencing assessment and constituted an arbitrary factor in violation of State law, SC Code Ann. §§ 16-3-20 and 16-3-25, and a due process violation under the Fifth and Fourteenth Amendments to the Constitution." (Pet. at 145, ECF No. 117 at 145.) And Owens asserts that sentencing counsel should have made an objection on that basis.
Owens cannot show either deficiency or prejudice on this issue because there is no merit to the objection he believes sentencing counsel should have made. The South Carolina Supreme Court has found prison disciplinary records to be relevant in sentencing proceedings on the issue of future dangerousness. State v. Whipple, 476 S.E.2d 683, 688 (S.C. 1996) ("[T]he disciplinary records were relevant to . . . future adaptability in prison, a matter which was clearly proper for the sentencing jury."). And as the respondents point out, "The vast majority . . . do go directly to future dangerousness" or prison adaptability. (Am. Return at 257, ECF No. 148 at 257.) Some infractions on the list could also be considered by the jury as evidence of Owens's character, another relevant consideration under state law during a sentencing proceeding. See State v. Hughes, 521 S.E.2d 500, 503 (S.C. 1999) ("[I]t is well-settled evidence of the defendant's behavior in prison is admissible in capital sentencing because it bears upon his character."). Owens cites Supreme Court cases that stand for the proposition that a defendant has the right to inform the jury that a life sentence means incarceration until death without the possibility of parole (when that is the case), but none of those cases indicates that the admission of a list of prison disciplinary infractions would be improper in a sentencing proceeding. (See Pet. at 145-46, ECF No. 117 at 145-46 (citing Kelly v. South Carolina, 534 U.S. 246 (2002); Shafer v. South Carolina, 532 U.S. 36 (2001); Simmons v. South Carolina, 512 U.S. 154 (1994))). Sentencing counsel objected to the list of disciplinary infractions, arguing that the records were not trustworthy, and as a result, the list presented to the jury was shorter than the one that the State initially sought to admit. (App. at 1404-35, ECF No. 16-3 at 423-54.) Sentencing counsel were not deficient for failing to object to the list of prison disciplinary infractions on relevance or disproportionality grounds because there was no legal basis for such an objection.
Owens contends that "[t]he touchstone of future dangerousness then is in-custody behavior that is itself 'violent.' " (Pet. at 146, ECF No. 117 at 146.) Certainly some of the infractions on the list qualify as "violent," but Owens does not parse out which infractions were admissible and which were inadmissible to show future dangerousness. However, even those infractions that might be characterized as non-violent could go to a different, relevant sentencing consideration—for example, character. In fact, the Supreme Court recognized a similar point in Kelly v. South Carolina, 534 U.S. 246 (2002), noting "[e]vidence of future dangerousness under Simmons is evidence with a tendency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support other inferences or be described in other terms." Kelly, 534 U.S. at 254.
Even assuming sentencing counsel were deficient for failing to object to the introduction of certain disciplinary infractions, those same infractions (and more) were considered by the mental health professionals who evaluated Petitioner and testified during his mitigation case. Dr. Schwartz-Watts testified that, as part of her evaluation, she considered fifty-six of Owens's disciplinary infractions. (App. at 1536-40, ECF No. 16-4 at 69-73.) And when shown the list of twenty-eight disciplinary infractions that the State had introduced, Dr. Schwartz-Watts stated, "Yes, these all look familiar. Each one of these I have some recollection of reading the reports that went with them." (App. at 1538, ECF No. 16-4 at 71.) The solicitor then asked Dr. Schwartz-Watts about some of those disciplinary infractions and how they were either consistent with or inconsistent with her opinion as to Owens's impulsiveness. (App. at 1538-40, ECF No. 16-4 at 71-73.) Thus, Owens was not prejudiced by sentencing counsel's failure to object to the list of prison disciplinary infractions on the basis of relevance and disproportionality because that same evidence was properly introduced to impeach his own expert.
Owens has failed to make a substantial showing of either sentencing counsel's deficiency or any resulting prejudice in Ground Ten. Consequently, the procedural default of this ground cannot be excused pursuant to Martinez.
g. Ground Twelve
In Ground Twelve Owens claims that sentencing counsel were ineffective for failing to challenge the State's decision to seek the death penalty. He asserts that the death penalty should not have been sought for his murder of Irene Graves because "[a]ll indications are that this was a strong armed robbery where the clerk attempted to evade Mr. Owens' request and a shooting occurred. Strong arm robberies, even those that result in death, do not commonly raise the crime to one so depraved as to warrant the death penalty." (Pet. at 156, ECF No. 117 at 156.) Having reviewed the record, the applicable law, and the parties' arguments, the court finds that there was no legal or factual basis for sentencing counsel to raise such an objection.
Irene Graves was murdered by Owens during the commission of a robbery while armed with a deadly weapon and during the commission of a larceny with use of a deadly weapon, which are both circumstances that make the murder death-eligible. See S.C. Code Ann. § 16-3-20(C)(a). Though Owens expresses a belief that the statute renders "virtually every conceivable murder" death-eligible, he fails to provide any support for that statement. Nor does Petitioner show that use of the aggravating circumstances of armed robbery and larceny with use of a deadly weapon does not comply with the Supreme Court's directive that "an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant v. Stephens, 462 U.S. 862, 877 (1983). Thus, it does not appear that sentencing counsel could have challenged the State's decision to seek the death penalty either based on the constitutionality of the statute or the particular aggravating factors applicable to Owens.
Moreover, the decision of whether to seek the death penalty is left to the solicitor. And though Owens repeatedly states that the solicitor's decision should have been challenged as disproportionate and arbitrary, he provides no support for those accusations. Owens submits that Irene Graves was murdered during the course of an "unfortunate, but ordinary armed robbery" and that he "was without a significant prior violent criminal record and was nineteen years [sic] old black youth." (Pet. at 159, ECF No. 117 at 159.) But, as the respondents note, the State presented evidence to the contrary. (See Am. Return at 270, ECF No. 148 at 270.) For example, Owens told a co-defendant that Irene Graves "wasn't opening the safe, so he shot the whore." (App. at 1230, ECF No. 16-3 at 253.) Owens's former girlfriend also testified that Owens told her "he kept asking her to open the safe. She kept throwing up her hands and said she couldn't open the safe, so he just said 'I shot the bitch.' " (App. at 1163, ECF No. 16-3 at 186.) The State also presented evidence that while being questioned by the police, Owens stated, " 'I was born to be in jail' " and " 'I want to be remembered as the one who killed the most people in Greenville. I'm a real menace.' " (App. at 1141-42, ECF No. 16-3 at 164-65.) Owens also told his former girlfriend that "he wanted to go down in history for committing the most murders in Greenville County without getting caught." (App. at 1165, ECF No. 16-3 at 188.) Also, Owens had previously been incarcerated for second degree burglary and assault with intent to kill. (App. at 1545, ECF No. 16-4 at 78.) Owens has failed to articulate any cogent basis for the objection he believes sentencing counsel should have made. Moreover, the South Carolina Supreme Court has held "[i]t would be error for the trial judge to tell a Solicitor how to determine whether the death penalty should be sought. This is the prerogative of the Solicitor." State v. Yates, 310 S.E.2d 805, 809 (S.C. 1982), overruled on separate grounds by State v. Torrence, 406 S.E.2d 315 (1991). Thus, there is no reason to believe that had sentencing counsel challenged the solicitor's decision to seek the death penalty they would have been successful.
For all of the above reasons, Owens has failed to show a substantial underlying ineffective-assistance-of-trial-counsel claim, and the procedural bar of his Ground Twelve cannot be overcome pursuant to Martinez.
E. Petitioner's Motion for an Evidentiary Hearing
On June 28, 2017, Petitioner filed a motion to enlarge the record and for evidentiary hearing on all Martinez claims. (ECF No. 164.) For the reasons that follow, based on the record presented the court denies Petitioner's motion for an evidentiary hearing.
Much of the discussion in Petitioner's motion is dedicated to the argument that Petitioner is entitled to an evidentiary hearing on his exhausted grounds for habeas relief. That argument has already been addressed in this report and recommendation, and the court has denied Petitioner's request for an evidentiary hearing on his preserved claims.
According to Petitioner,
The threshold question concerning expanding the record and convening an evidentiary hearing on the Martinez claims is whether the specifications of ineffective assistance of trial and initial collateral counsel are in and of themselves sufficient to warrant relief. Because the Martinez allegations in this case are sufficient to warrant relief, the motion to expand the record must be granted. The attachments and affidavits as they relate to each claim of ineffective assistance of counsel establishes the need for an evidentiary hearing to develop a full, fair and adequate record upon which to base decisions on the merits of each claim.(Mot. for Hr'g at 49, ECF No. 164 at 49.) The respondents oppose the motion for an evidentiary hearing, pointing out that "[t]he United States Supreme Court's opinion in Martinez v. Ryan, (2012), '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.' " (Resp'ts' Resp. to Mot. for Hr'g at 3, ECF No. 166 at 3 (quoting Fielder v. Stevenson, 2:12-cv-412-JMC, 2013 WL 593657, at *6 (D.S.C. Feb. 14, 2013))). The respondents also incorporate by reference their arguments to Petitioner's Martinez grounds and submit that Petitioner has failed to make a predicate showing that PCR counsel was either deficient or prejudicial. (Resp'ts' Resp. to Mot. for Hr'g at 5, ECF No. 166 at 5.)
The "AEDPA generally prohibits federal habeas courts from granting evidentiary hearings when applicants have failed to develop the factual bases for their claims in state courts." Schriro v. Landrigan, 550 U.S. 465, 473 n.1 (2007) (citing 28 U.S.C. § 2254(e)(2)). However, there are circumstances in which expanding the record and granting an evidentiary hearing is appropriate. As this court and others have recognized, a court may exercise its discretion to expand the record when considering whether cause and prejudice excuse a petitioner's defaulted claim. Fielder, 2013 WL 593657, at *3 (citing Cristin v. Brennan, 281 F.3d 404, 416 (3d Cir. 2002)). It stands to reason that the expansion of the record initially would be limited to the facts of the cause and prejudice inquiry, and if cause and prejudice were sufficiently established, then the court could expand the record further to consider the merits of the underlying claim. Of course, as previously discussed in detail by the court, there are a number of essential elements that a petitioner must prove to show cause pursuant to Martinez—he must demonstrate deficient performance by PCR counsel and resulting prejudice and a substantial claim of ineffective assistance of trial counsel, including both deficient performance and resulting prejudice. Martinez, 566 U.S. at 14, 17-18. If any of these is lacking, then the procedural default cannot be excused pursuant to Martinez. Depending on the state court record and the claim raised by the petitioner, it may not be necessary for a court to expand the record because it may be clear that the petitioner cannot succeed in all elements of his Martinez claim.
Martinez states,
The holding here ought not to put a significant strain on state resources. When faced with the question whether there is cause for an apparent default, a State may answer that the ineffective-assistance-of-trial-counsel claim is insubstantial, i.e., it does not have any merit or that it is wholly without factual support, or that the attorney in the initial-review collateral proceeding did not perform below constitutional standards.Martinez, 566 U.S. at 15-16.
In this case, the court has exercised its discretion to expand the record and consider information outside of the state court record in deciding whether the procedural default of Petitioner's Grounds Six, Seven, Eight, Nine, Ten, and Twelve can be excused pursuant to Martinez. See R. Governing Section 2254 Cases 7 (indicating that letters predating the filing of the petition, documents, exhibits, answers under oath to written interrogatories propounded by the judge, and affidavits may all be submitted and considered as part of the record at a judge's discretion). In addition to reviewing Petitioner's evidence that PCR counsel were ineffective in failing to raise these six claims, the court has further considered evidence of the underlying ineffective assistance of sentencing counsel claims. For all of the reasons set forth in this report and recommendation, Petitioner has failed to establish a substantial claim of ineffective assistance of sentencing counsel for each of the unpreserved grounds based on the record presented to this court. Even accepting Petitioner's evidence as true, as to each unpreserved ground, Petitioner has failed to make a substantial claim of one or both prongs of Strickland in regard to sentencing counsel's performance. Petitioner has had his chance to submit evidence to this court outside of the state court record, and he has done so. See Runningeagle v. Ryan, 825 F.3d 970, 990 (9th Cir. 2016) ("Where documentary evidence provides a sufficient basis to decide a petition, the court is within its discretion to deny a full hearing.") (citing Phillips v. Ornoski, 673 F.3d 1163, 1179 (9th Cir. 2012)). Any evidentiary hearing could only weaken Petitioner's current position as evidence that the court has heretofore accepted as true for purposes of analyzing the potential merit of the asserted ground could be found to be not credible. See id. at 990-91 ("The expanded record included the declarations of witnesses who would testify at a live hearing, and [the petitioner] made no showing that their testimony would differ materially from their declarations. The credibility of these witnesses was not an issue, and could not have rendered their testimony sufficient to show cause under Martinez."). Accordingly, the court declines to grant Petitioner's motion for an evidentiary hearing. See R. Governing Section 2254 Cases 8 ("If the petition is not dismissed, the judge must review the answer, any transcripts and records of state-court proceedings, and any materials submitted under Rule 7 to determine whether an evidentiary hearing is warranted.").
F. Petitioner's Motion to Stay
On October 16, 2017, Petitioner filed a motion asking this court to stay the instant action pending the United States Supreme Court's decision in Ayestas v. Davis. The United States Supreme Court heard oral argument in Ayestas on October 30, 2017, on the following issue:
Whether the Fifth Circuit erred in holding that 18 U.S.C. § 3599(f) withholds "reasonably necessary" resources to investigate and develop an ineffective-assistance-of-counsel claim that state habeas counsel forfeited, where the claimant's existing evidence does not meet the ultimate burden of proof at the time the § 3599(f) motion is made.See Ayestas v. Davis, 137 S. Ct. 1433 (2017). Petitioner posits that the dispute in this case as to whether record expansion and an evidentiary hearing are warranted or even allowed "will, in all probability, be decided or at least informed by the opinion in Ayestas." (Pet'r's Mot. to Stay at 2, ECF No. 186 at 2.) Thus, Petitioner asks this court to stay this action pending the Ayestas opinion.
The respondents disagree that a stay is appropriate in this instance, pointing out that
it appears that Owens has already been granted investigative funding by this Court ex parte, and that he has retained experts who have assisted him in developing his claims. Thus, his case is in a vastly different procedural posture than Ayestas and thus will not be impacted by the question on which the Supreme Court granted certiorari in that case.(Resp'ts' Resp. to Mot. to Stay at 5, ECF No. 189 at 5.) Petitioner concedes that his case is in a "slightly different procedural posture[] because the Petitioner did receive funding" but argues a stay is still appropriate as "in both cases the States argue the evidence developed during federal habeas investigation may not be considered in federal habeas proceedings, regardless of whether funding is granted, because it was not part of the state court record." (Pet'r's Reply to Mot. to Stay at 3, ECF No. 190 at 3.)
Though this court has the authority to stay this matter pending the Supreme Court's opinion in Ayestas, the court recommends denying Petitioner's motion to stay. See Dietz v. Bouldin, 136 S. Ct. 1885, 1892 (2016) (recognizing "that district courts have the inherent authority to manage their dockets and courtrooms with a view toward the efficient and expedient resolution of cases"). The narrow question under review in Ayestas is not an issue in this case as the court has not denied funding to Petitioner investigate and develop his procedurally defaulted ineffective-assistance-of-trial-counsel claims. Furthermore, as set forth above, the court has allowed Petitioner to expand the record on the issue of cause and prejudice for each of his procedurally defaulted claims but has denied an evidentiary hearing on those same claims pursuant to the Rules Governing Section 2254 Cases. The court is unpersuaded by Petitioner's speculation that the Supreme Court's opinion in Ayestas will be determinative of whether Petitioner is entitled to an expansion of the record or to an evidentiary hearing in this matter.
RECOMMENDATION
The court GRANTS Owens's motion to enlarge the record but DENIES Owens's motion for an evidentiary hearing on all Martinez claims. Additionally, for all the reasons stated herein, the court recommends that the respondent's motion for summary judgment be granted (ECF No. 147), Owens's motion to stay be denied (ECF No. 186), and Owens's Amended Petition be denied.
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE January 12, 2018
Columbia, South Carolina
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).