Stoudenmire v. Warden, Perry Corr. Inst.

Full title: NORMA STOUDENMIRE, #182302, Petitioner, v. WARDEN, PERRY CORRECTIONAL…

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

Date published: Oct 3, 2018

CIVIL ACTION NO. 9:17-2924-RBH-BM (D.S.C. Oct. 3, 2018)

Opinion

CIVIL ACTION NO. 9:17-2924-RBH-BM

10-03-2018

NORMA STOUDENMIRE, #182302, Petitioner, v. WARDEN, PERRY CORRECTIONAL INSTITUTION, Respondent.

Bristow Marchant United States Magistrate Judge

REPORT AND RECOMMENDATION

Petitioner, an inmate with the South Carolina Department of Corrections, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was filed pro se on October 25, 2017.¹

1 Filing date pursuant to Houston v. Lack, 487 U.S. 266, 270-276 (1988).

The Respondent filed a return and motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on May 4, 2018. As the Petitioner is proceeding pro se, a Roseboro order was entered by the Court on May 7, 2018, advising Petitioner of the importance of a motion for summary judgment and of the necessity for him to file an adequate response. Petitioner was specifically advised that if he failed to respond adequately, the Respondent's motion may be granted, thereby ending his case.

After receiving two extensions of time to reply, Petitioner filed a memorandum in opposition on June 29, 2018, to which Respondent filed a reply on July 6, 2018. This matter is now before the Court for disposition.²

2 This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(c)and (e), D.S.C. The Respondent has filed a motion for summary judgment. As this is a dispositive motion, this Report and Recommendation is entered for review by the Court.

Procedural History

Petitioner was indicted in Spartanburg County in November 2008 for murder [Indictment No. 2008-GS-42-7014]. (R.pp. 749-750). Petitioner was represented by Robert Hall, Esquire, and after a jury trial on March 29-31, 2010, was found guilty as charged. (R.p. 458). Petitioner was then sentenced to life imprisonment. (R.p. 464).

Petitioner filed a timely direct appeal. He was represented on appeal by Robert M. Dudek, of the South Carolina Commission on Indigent Defense, Division of Appellate Defense, who raised the following issue:

Whether the court erred by admitting [Petitioner's] statement into evidence where it was undisputed there was physical contact between the interrogating investigator and [Petitioner], where [Petitioner] said he only gave a statement because he was afraid the investigator would hurt him even more, and where it was also undisputed that police intentionally kept [Petitioner's] attorney from being able to see him during the interrogation?

(R.p. 470). On November 28, 2012, the South Carolina Court of Appeals affirmed Petitioner's conviction and sentence. (R.pp. 518-519). Petitioner then filed a pro se petition for rehearing on January 17, 2013. See Court Docket No. 18-4. On February 22, 2013, the South Carolina Court of Appeals denied the petition for rehearing. See Court Docket No. 18-5. The Remittitur was issued on April 3, 2013 (filed April 11, 2013). (R.p. 520).

On May 15, 2013 (dated April 15, 2013), Petitioner filed an application for post-conviction relief ("APCR") in state circuit court. Stoudenmire v. State of South Carolina, No. 2013-CP-42-2174. (R.pp. 521-552). The PCR court outlined the issues Petitioner initially³ raised in his APCR as follows:

3 Although the PCR judge outlined all of the issues listed in Petitioner's PCR application, he found that with regard to any issues raised by the Petitioner in his application that were not specifically addressed in his Order, the Petitioner failed to present evidence regarding those issues and had therefore abandoned them. (R.p. 747).

Ground One: Ineffective Assistance of Trial Counsel, in that;

i. Counsel failed to object to the prosecution's improper introduction of character evidence,

ii. Counsel failed to request a mental evaluation or use mental history as mitigation,

iii. Counsel failed to challenge issue that there was sufficient evidence at trial to establish a reasonable probability that Petitioner was incompetent at time of trial due to Post-Traumatic Stress Disorder,

iv. Counsel failed to address juror that was sleeping during trial,

v. Counsel failed to properly perfect appeal,

vi. Counsel failed to object to irrelevant and improper testimony,

vii. Counsel failed to object to improper introduction of evidence,

viii. Counsel failed to pursue a third-party guilt defense,

ix. Counsel failed to challenge voluntariness of confession,

x. Counsel failed to object to prosecution's argument,

xi. Counsel's prior experience working as prosecutor and magistrate judge indicated a conflict of interest,

xii. Counsel failed to challenge the void indictment,

xiii. Counsel failed to object to shackling of [Petitioner] at sentencing,

xiv. Counsel failed to obtain DNA expert,

xv. Counsel failed to object to Brady violations,

Ground Two: Ineffective Assistance of Appellate Counsel,

i. Failed to raise the issue of the trial judge abusing his discretion in various rulings,

ii. Failed to challenge the ruling after the attempt to use prior bad act at the suppression hearing,

iii. Closed case and refused to file a motion for rehearing and petition for writ of certiorari,

iv. Failed to challenge prohibition of trying and convicting mentally incompetent defendants,

v. Failed to challenge fact that [Petitioner] was convicted after trial counsel failed to make obvious meritorious objections to tainted evidence,

vi. Failed to challenge the prosecution's introduction of matters in closing that were not properly introduced as evidence during trial,

vii. Failed to challenge the voluntariness of the confession,

viii. Failed to challenge evidentiary sufficiency of the criminal conviction,

Ground Three: Prosecutorial Misconduct, in that;

i. Numerous Brady violations,

Ground Four: Violation of due process, in that;

i. [Petitioner] was denied bond hearing for two years,

ii. Failed to obtain a rights waiver form for February 29, 2008,

iii. Officers failed to warn [Petitioner] of his 5^th Amendment rights prior to interrogation,

iv. Fraudulent indictment,

Ground Five: Abuse of Discretion of trial judge, in that,

i. Failed to address [Petitioner's] known mental illness issues,

ii. Allowed admission of testimony prior bad acts,

iii. Failed to instruct jury regarding voluntariness of confession,

iv. Allowed hearsay evidence to be used and improperly admitted other evidence,

Ground Six: Official misconduct, in that;

i. Officers failed to properly secure possible evidence and test possible evidence.

(R.pp. 703-706). Petitioner was represented in his APCR by Leah B. Moody, Esquire, and an evidentiary hearing was held on Petitioner's application on January 15, 2015. (R.pp. 594-701). In an order filed June 8, 2015 (dated June 4, 2015), the PCR judge denied Petitioner relief on his APCR. (R.pp. 702-748).

Petitioner filed a timely appeal of the PCR court's order, in which he was represented by Wanda H. Carter, of the South Carolina Commission on Indigent Defense. Petitioner's counsel filed a Johnson ⁴ petition seeking to be relieved as counsel and raising the following issue:

4 Johnson v. State, 364 S.E.2d 201 (S.C. 1998).

Trial counsel erred in failing to object to over thirty references describing [P]etitioner as a "crack monster," a "crack smoker" and a "crack head" throughout his trial because these negative characterizations prejudiced [P]etitioner's case to the extent that the jury's guilty verdict was more likely based on judgments regarding his drug habits rather than evidence presented at trial.

See Petition for Writ of Certiorari, p. 2 (See Court Docket No. 18-6, p. 3).

The Petitioner also filed his own pro se response on January 11, 2016, raising the following issues:

Ground One: The PCR court erred by not finding trial counsel ineffective for failing

to conduct a thorough investigation/research, failing to advocate client's cause, and not employing reasonable trial strategies.

Ground Two: The PCR court erred by not finding trial counsel ineffective in making no objections during critical points of trial.

Ground Three: The PCR court erred by not finding trial counsel ineffective in failing to request specific jury instructions on use of prior bad acts, voluntariness of alleged statements, and use of third-party guilt evidence.

Ground Four: The PCR court erred in not finding trial counsel ineffective for failing to present and argue available third-party guilt evidence.

Ground Five: The PCR court erred by not finding trial counsel ineffective for failing to request a competency hearing.

Ground Six: The PCR court erred in failing to allow Petitioner to place on the record documents that would have supported the third-party guilt issues.

Ground Seven: The PCR court erred in not finding his trial counsel ineffective for failing to obtain an independent DNA expert to challenge the state's evidence.

Ground Eight: The PCR court erred in not finding trial counsel ineffective for failing to object to improper character evidence, drug use, anger, violence, firearm use, and inconsistent statement from investigating officers, testimony of state's witnesses, statements referring to Petitioner as a crack monster, and statements that Petitioner excepted responsibility for the death of Gwen Emory.

Ground Nine: The PCR court erred in ruling against Petitioner's argument that officers intentionally kept his attorney from him during the interrogation.

Ground Ten: The PCR court erred in not finding trial counsel ineffective for failing to consult with Petitioner to inform him that he had a statutory right to address the jury in closing, concerning all charges, by failing to properly acquaint himself with the law and facts surrounding the Petitioner's case.

Ground Eleven: The PCR court erred in not finding trial counsel ineffective for failing to request a police report concerning the interview with Capt. Steve Cooper.

Ground Twelve: The PCR court erred in not finding trial counsel ineffective for failing to present to the jury facts that the State had no physical evidence other than the alleged DNA that Petitioner states came from the computer he had been working on and was a secondary transferred source.

Ground Thirteen: The PCR court erred in not finding trial counsel ineffective for failing to object to prosecutor's egregiously improper closing argument, and failing to make the attempt to counter or lessen the effect in the defense's closing argument.

Ground Fourteen: The PCR court erred in not allowing Petitioner the opportunity to address and present to the Court issues of Due Process that were violated at trial.

Ground Fifteen: The PCR court erred in not finding appellate counsel was ineffective for failing to raise the issue that when evidence of mental impairments is indicated, the fruits of the interrogation must be excluded from use in a criminal prosecution.

Ground Sixteen: The PCR court erred in not finding abuse of discretion of the trial judge in admitting evidence that had a clear break in the "chain of custody".

Ground Seventeen: The PCR court erred in not finding trial counsel ineffective for failing to object to the undisputed physical contact between the Petitioner and interrogating investigator Jason Bryant.

Ground Eighteen: The PCR court erred in not finding trial counsel ineffective for failing to request jury instructions, to preserve the issue for appellate review, or instructions were simply not given due to an omission on the part of counsel, that such error was harmless beyond a reasonable doubt.

Ground Nineteen: The PCR court erred in failing to find appellate counsel was ineffective.

Ground Twenty: The PCR court erred in finding that the Petitioner failed to establish prejudice.

See Court Docket No. 18-7. After considering the record as required by Johnson and Petitioner's pro se response, the South Carolina Supreme Court denied certiorari on February 10, 2017. See Court Docket No. 18-8. The Remittitur was sent down on February 28, 2017, and filed with the Clerk of Court for Spartanburg County on March 6, 2017. See Court Docket No. 18-9.

In his Petition for writ of habeas corpus filed in this United States District Court, Petitioner raises the following issues:

Ground One: Ineffective Assistance of Counsel.

Supporting Facts: "All Grounds listed in Record" See Addendum Page 17 Attorney Failed to object to [sic] "Please see "Petition for Writ of Certiorari" received Jan 11, 2016 S.C. Supreme Court for Grounds requesting habeas corpus relief [sic] Petitioner respectfully requests this to avoid a [sic] Repetitum Namium Filing of Same Grounds

(A) Counsel failed to properly object to impermissible burden shifting, which affected the right to a fair trial, and counsel failed [sic] properly place question before the appellate court as to whether the instruction as a whole properly conveyed the law to the jury. Also whether it was reasonable likely that the jury acted in contravention of the reasonable doubt standard, by the trial [sic] judges instructions.

Ground Two: Prosecutorial Misconduct.

Supporting Facts: "Grounds on record in PCR" "Same used no changes" "Please see Petition for Writ of Certiorari received Jan 11, 2016 S.C. Supreme Court for grounds requesting habeas corpus relief. [sic] "Petitioner respectfully requests this avoid a repetitum namium filing of same grounds. [sic]

Ground Three: "[sic] Violot of Due Process"

Supporting Facts: "Same grounds raised in PCR" "On court record" [sic] no changes" "Same in pro se Writ of Certiorari" Received January 11, 2016 "Please see" petitioner respectfully requests this to avoid a repetitum namium filing of same grounds with courts.

Ground Four: Abuse of discretion of trial judge.

Supporting Facts: "See Addendum page 18 same as PCR and writ of certiorari. [sic] Pius "Amendments" filed concerning "Jury [sic] Charge's" on (A) Burden shifting by trial judge (B) Judge allowed fruits of [sic] pousionus tree to be used as evidence after attorney [sic] arived at [sic] Sheirff dept. Petitioner respectfully request to see Petition filed Jan 11 2016 to [sic] aviold "Repetitium [sic] Namiur

See Petition, pp. 6-11 & Attachment p. 17.⁵

5 In his response in opposition, Petitioner appears to also assert a new Ground Five raising issues concerning whether the PCR court erred in its rulings. That ground is addressed herein. See discussion, infra.

Discussion

Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56, Fed.R.Civ.P; see Habeas Corpus Rules 5-7, 11. Further, the federal court is charged with liberally construing pleadings filed by a pro se litigant to allow the development of a potentially meritorious case. See Cruz v. Beto, 405 U.S. 319 (1972), and Haines v. Kerner, 404 U.S. 519 (1972). However, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Social Services, 901 F.2d 387 (4th Cir. 1990). Such is the case here.

I.

Petitioner raises numerous ineffective assistance of counsel claims in Ground One. However, Respondent contends, and the undersigned agrees, that the following ineffective assistance of counsel claims were procedurally defaulted at the PCR court level: 1) counsel failed to properly object to impermissible burden shifting, which affected the right to a fair trial; 2) counsel failed to properly place question before the appellate court as to whether the instruction as a whole properly conveyed the law to the jury; and 3) whether it was reasonable [sic] likely that the jury acted in contravention of the reasonable doubt standard by the trial judge's instructions. These issues have therefore been addressed separately. See discussion, infra.

With regard to Petitioner's numerous ineffective assistance of counsel claims that were properly pursued in his PCR action, Petitioner had the burden of proving the allegations in his petition. Butler v. State, 334 S.E.2d 813, 814 (S.C. 1985), cert. denied, 474 U.S. 1094 (1986). The PCR court rejected these claims, making relevant findings of fact and conclusions of law in accordance with S.C.Code Ann. § 17-27-80 (1976), as amended. See Stoudenmire v. State of South Carolina, No. 2013-CP-42-2174. These issues were also raised in either Petitioner's counsel's Johnson petition and/or Petitioner's pro se brief in his PCR appeal to the State Supreme Court⁶. See Court Docket Nos. 18-6 and 18-7. Therefore, these claims are all properly exhausted for consideration by this Court.

6 To the extent that Petitioner attempted to raise additional issues in his pro se response to the Johnson petition that were not ruled upon by the PCR judge, those issues are not properly exhausted for consideration by this Court. See discussion, infra.

At the PCR hearing, after outlining the testimony of Petitioner and his counsel, the PCR judge found that: 1) trial counsel adequately conferred with the Petitioner and provided thorough representation; 2) counsel's performance did not fall below an objective standard of reasonableness; 3) counsel was a criminal practitioner who had experience in the trial of serious offenses; 4) counsel provided credible testimony during the Petitioner's evidentiary hearing; 5) counsel conferred with Petitioner and discussed the pending charges, his constitutional rights, range of penalty, the elements of the charges and what the State was required to prove, the Petitioner's version of the facts, and the Petitioner's defense at trial; 6) counsel zealously advocated on his client's behalf; 7) with regard to Petitioner's allegation of ineffective assistance of counsel for failing to conduct a pre-trial investigation into his mental health and competency to stand trial, even though counsel was aware of his mental health issues such as Post-traumatic Stress Disorder ("PTSD"), disability determination and other mental issues, Petitioner failed to carry his burden; 8) the PCR Court found this issue was wholly without merit; 9) in order to show he was prejudiced by his counsel's failure to pursue a defense of insanity, Petitioner must produce some evidence of insanity or a showing that with the exercise of due diligence, an insanity defense could have been developed; 10) Petitioner failed to meet his burden of showing that he was incompetent at the time of trial or that his mental health issues could support an insanity defense; 11) the only testimony Petitioner provided in support of his contention that he was either incompetent or insane was that he suffered from PTSD and had been classified as disabled; 12) Petitioner also failed to articulate an argument supporting an insanity defense; 13) the record was devoid of any evidence that Petitioner was either incompetent or insane at the time of his trial or at the time of the offense; 14) rather, counsel's testimony was credible that he had no indication or reason to question the Petitioner's competence⁷; 15) counsel's testimony was credible that Petitioner maintained his innocence and that his ultimate defense was that he did not, in fact, commit the crime; 16) with regard to Petitioner's allegation that his counsel was ineffective for failing to investigate and argue a third-party guilt defense on his behalf, Petitioner specifically alleged that counsel failed to admit an alleged Crime Stoppers report that detailed instances of criminal domestic violence among the purported love triangle and that counsel was ineffective for failing to request a third-party guilt defense jury charge; 17) this allegation was without merit; 18) Petitioner failed to meet his burden of proof establishing that there was any remaining evidence that counsel could have presented to support a defense of third-party guilt; 19) counsel's testimony was credible that there was no direct evidence supporting the Petitioner's theory, particularly based upon the fact that neither DNA nor fingerprints found at the crime scene matched either man involved in the love triangle; 20) counsel's testimony was credible that he effectively developed and argued the Petitioner's theory at trial; 21) the trial transcript, which revealed counsel effectively elicited evidence supporting the Petitioner's theory during his cross examination of Ben Nevins, was most compelling on this issue; 22) with regard to not introducing the Crime Stoppers report, Petitioner failed to present any purportedly beneficial testimony or evidence supporting his theory at the PCR hearing; 23) mere speculation as to what a witness' testimony would have been by itself cannot satisfy the Petitioner's burden of showing prejudice; 24) counsel's testimony that he told the Petitioner that the report would not be admissible at trial was credible; 25) therefore, Petitioner did not meet his burden on this issue; 26) Petitioner alleged that his counsel was ineffective for failing to retain an independent DNA expert to testify as to explain why the Petitioner's DNA was found in the victim's home and underneath her fingernails; 27) Petitioner generally alleged that counsel was ineffective in challenging the State's DNA evidence; 28) the Petitioner specifically alleged that counsel failed to adequately challenge the chain of custody and law enforcement's failure to properly process the crime scene; 29) Petitioner failed to meet his burden on this issue; 30) the State established the chain of custody and processing of the crime scene in accordance with the standards set out in the PCR order and that various failures regarding the DNA testing, chain, crime scene processing, and obtaining proof of the Petitioner's scratch on his neck were presented to the jury; 31) counsel's testimony that he effectively elicited information supporting Petitioner's theory of the case at trial was credible; 32) counsel's strategic trial decision not to present the testimony of an independent DNA expert was valid; 33) counsel's testimony that he interviewed potential DNA experts prior to trial, none of whose testimony would have been beneficial, was credible; 34) counsel's testimony that he was able to elicit favorable testimony and all the requisite testimony supporting the Petitioner's case from the State's scientists was credible; 35) Petitioner failed to provide the PCR Court with any actual evidence tending to prove his assertions that a DNA expert would offer beneficial or exculpatory testimony on his behalf at the PCR hearing; 36) even if Petitioner had proved counsel was ineffective for failing to produce an independent DNA expert or even if the Petitioner had been successful on appeal, it was unlikely that he would have been granted a new trial; 37) just because the Petitioner exercised his rights to the Access to Justice Post-Conviction DNA Testing Act, does not mean the Petitioner also satisfied the requirements of the Act, met his burden of proving the DNA evidence was actually exculpatory and supports his theory of the case, or established the requisite prejudice supporting the grant of a new trial; 38) the Petitioner failed to show that he suffered prejudice as a result of counsel's alleged failures; 39) with regard to Petitioner's allegation that the trial court committed error based on an improper and incomplete ruling regarding admissibility of the State's scientific evidence against the Petitioner, any allegation of trial court error raised direct appeal issues and could not be raised in his PCR; 40) Petitioner should have raised these issues at trial or on appeal, his failure to do so waived these allegations; 41) with regard to Petitioner's argument that his counsel was ineffective for failing to object to the Solicitor's closing argument & Brady violations, Petitioner testified that counsel failed to object to the improper implication made by the Solicitor during his closing arguments regarding a scratch found on the Petitioner's neck at the time of his arrest; 42) the Petitioner failed to meet his burden on this issue; 43) the record reflected that testimony had been previously presented regarding a mark on the Petitioner's neck and the Solicitor was allowed to reference evidence or reasonable inferences drawn from the evidence; 44) accordingly, there was no basis for trial counsel to object; 45) as it relates to the Brady violation, counsel's testimony was the most credible in that there was no report to turn over; 46) Petitioner also alleged that his counsel was ineffective for failing to object to the admission of improper character evidence regarding the Petitioner's drug use, anger, violence, firearm use, and borrowing money; 47) Petitioner specifically asserted that counsel was ineffective for failing to highlight the State's witnesses' prior inconsistent statements; 48) the State's theory was that Petitioner was high on crack cocaine and when the victim refused to loan him money, he became angry and killed her; 49) therefore, the evidence and testimony regarding Petitioner's crack cocaine abuse and previous times borrowing money were relevant and admissible to prove motive; 50) counsel had no basis to object to inconsistent witness testimony; 51) counsel's testimony that he effectively impeached the State's witnesses was credible; 52) counsel was effectively able to use cross-examination to address and combat harmful testimony; 53) the testimony at issue would be res gestae and not improper character evidence; 54) the testimony in question would not have been excluded as an impermissible reference to a prior bad act, but would have been admissible as part of the res gestate of the crime; 55) additionally, defense counsel may decide as a strategic matter not to object because his objection would highlight the erroneous evidence, argument, or charge; 56) accordingly, counsel executed a valid strategy and was not ineffective; 57) Petitioner's allegations that counsel did not conduct an adequate pre-trial investigation or prepare enough for trial were without merit; 58) the Petitioner failed to point to any specific matters counsel failed to discover, or any defenses that could have been pursued had counsel been more fully prepared or had additional time prior to the case being called to trial; 59) Petitioner's allegations that counsel was unprepared, did not investigate, and did not sufficiently meet with Petitioner prior to trial lacked merit; 60) counsel's testimony on this issue was credible and it was clear from the record and from counsel's testimony that he met with the Petitioner appropriately and fully investigated the possible defenses for trial; 61) counsel had years of experience representing clients on similar charges; 62) furthermore, Petitioner failed to show any prejudice that may have resulted from counsel's alleged inadequate preparation or lack of investigation; 63) Petitioner alleged that counsel should have been replaced due to a conflict of interest; 64) Petitioner stated that counsel should have been removed because his conflict of interest was his prior service as a magistrate judge and a solicitor; 65) there was no credible evidence presented to support this claim; 66) Petitioner alleged that counsel was ineffective for failing to allow him to testify on his behalf; 67) counsel's testimony was credible that he and Petitioner extensively discussed his right to testify, that he discussed his right to testify with the Petitioner's sister, that the Petitioner came to his own decision not to testify freely, intelligently, voluntarily and of his own will, and that based on Petitioner's poor performance on cross-examination during his pre-trial hearing, all parties agreed with Petitioner's decision not to testify; 68) moreover, the record reflected that counsel and the Petitioner again took time to discuss Petitioner's right to testify at the end of the State's case, the State published Petitioner's prior criminal record for purposes of impeachment, and the trial court fully advised the Petitioner of his right to testify, which he waived, thereby curing any error on behalf of counsel; 69) Petitioner claimed counsel was ineffective for failing to obtain a jury charge on the voluntariness of his statement; 70) the record revealed that the trial court's general charge to the jury regarding their role as fact finder, the [Petitioner's] presumption of innocence, considering the weight and value of witness testimony and evidence, and the [Petitioner's] right not to testify, was proper and the trial court properly instructed the jury that in order to find the Petitioner guilty the burden remained on the State to prove each element of the offense beyond a reasonable doubt; 71) counsel's testimony was credible that he debated whether to suppress the Petitioner's statement and move for a Jackson v. Denno⁸ hearing as a tactical matter and considered allowing the State to admit the statement; 72) counsel's testimony was credible that he was able to effectively examine law enforcement regarding the circumstances surrounding the interview and the alleged confession in great detail; 73) counsel's assessment was credible that the circumstances surrounding the interrogation and confession supported the defense's theory and strategy that law enforcement improperly handled the Petitioner's case; 74) counsel related that the Petitioner said, "I feel responsible"; 75) Petitioner's statement was less than inculpatory and capable of many different interpretations and fell short of an admission of guilt; 76) counsel's strategy was valid to use the statements to focus on the fact that law enforcement did not videotape the interview, but videotaped all other proceedings; 77) counsel's testimony was credible that the voluntariness of the Petitioner's confession was a non-issue at trial based on the trial court's ruling on the Petitioner's Jackson v. Denno motion; 78) counsel made the motion to suppress the Petitioner's statement to the police and a full pre-trial hearing was held, at which the Petitioner testified; 79) counsel then renewed his objection during trial at the time of the officer's testimony regarding the statement; 80) the voluntariness of Petitioner's confession was addressed on direct appeal and affirmed by the South Carolina Court of Appeals; 81) Petitioner's statement was determined admissible, was read into the record and published for the jury, and was not a true confession; 82) thereafter, counsel effectively cross-examined the officer who published the Petitioner's statement; 83) it was not clear from the record whether counsel requested an instruction, whether an instruction was requested and denied, or whether the lack of giving the charge was a simple omission on the part of the trial court; 84) while it is prudent to give an instruction on the voluntariness of Petitioner's statement, the omission of the instruction was subject to a harmless error analysis; 85) whether or not an instruction error was harmless is a fact-intensive inquiry; 86) further, precedent was clear that the failure to give an instruction was subject to "harmless error" analysis; 87) Petitioner's allegation was without merit; 88) if counsel failed to request the instruction, failed to preserve the issue for appellate review or the instruction was simply not given due to an omission on the part of the Court, such error was harmless beyond a reasonable doubt; 89) considering counsel's strategy as articulated herein and the breadth of the record in this case establishing Petitioner's guilt, it was clear beyond a reasonable doubt that any error in not giving the charge did not contribute to the verdict rendered in this case; 90) Petitioner alleged appellate counsel was ineffective for failing to argue preserved error and failing to file a petition for rehearing on his behalf; 91) Petitioner failed to meet his burden; 92) Petitioner articulated no specific grounds of appellate counsel error; 93) there was no evidence or testimony presented to show that appellate counsel did not raise the preserved issues that counsel felt had merit; 94) further, the South Carolina Supreme Court has held that appellate counsel has no duty to pursue rehearing and/or certiorari following the decision of the South Carolina Court of Appeals in a criminal direct appeal; 95) with regard to the due process violations raised by the Petitioner, those issues were direct appeal issues and PCR is not a substitute for direct appeal; 96) Petitioner could have raised these issues at trial or on direct appeal; 97) his failure to do so waived these allegations as grounds for relief; 98) the PCR Court summarily dismissed those claims; 99) the overwhelming evidence of Petitioner's guilt presented by the State at trial negated any claim that counsel's performance could have reasonably affected the outcome of the Petitioner's trial; 100) the Petitioner failed to meet his burden of proof; 101) based on the testimony provided at the evidentiary hearing and a review of the record, the PCR Court could not discern any error in counsel's performance that would undermine the Court's confidence in the jury's verdict; 102) a reasonable jury could find the Petitioner guilty of the charged offense; 103) Petitioner failed to establish prejudice supporting the vacating of his convictions; 104) as to any and all allegations that the Petitioner raised in the application and were not specifically addressed in the PCR Court Order, the PCR Court found that Petitioner failed to present any evidence regarding such allegations and accordingly, abandoned such allegations; 105) with regard to Petitioner's allegations of ineffective assistance of counsel, his testimony was not credible; 106) counsel adequately conferred with the Petitioner, conducted a proper investigation, was thoroughly competent in his representation, and counsel's conduct did not fall below the objective standard of reasonableness; and 107) Petitioner did not establish any constitutional violations or deprivations that would require the PCR Court to grant his Petition. (R.pp. 722-748). As previously noted, the South Carolina Supreme Court subsequently denied Petitioner's PCR appeal wherein Petitioner presented these same issues through his counsel's Johnson petition and/or his pro se response brief to the Johnson petition. See Porterfield v. State, Appellate Case No. 2013-000245 (Order filed March 4, 2016).

7 The PCR court also found that although counsel erroneously stated that Petitioner did not divulge his PTSD, the record reflected that all parties knew that Petitioner suffered from PTSD and that fact was never purposely hidden due to any ineffective assistance. (R.p. 727).

8 378 U.S. 368 (1964).

Substantial deference is to be given to the state court's findings of fact. Evans v. Smith, 220 F.3d 306, 311-312 (4th Cir. 2000), cert. denied, 532 U.S. 925 (2001) ["We . . . accord state court factual findings a presumption of correctness that can be rebutted only by clear and convincing evidence], cert. denied, 532 U.S. 925 (2001); Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000)(en banc), cert. denied, 112 S.Ct. 74 (2001).

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

28 U.S.C. § 2254(e)(1). See also Fisher v. Lee, 215 F.3d 438, 446 (4th Cir. 2000), cert. denied, 531 U.S. 1095 (2001); Frye v. Lee, 235 F.3d 897, 900 (4th Cir. 2000), cert. denied, 533 U.S. 960 (2001). However, although the state court findings as to historical facts are presumed correct under 28 U.S.C. § 2254(e)(1), where the ultimate issue is a mixed question of law and fact, as is the issue of ineffective assistance of counsel, a federal court must reach an independent conclusion. Strickland v. Washington, 466 U.S. 668, 698 (1984); Pruett v. Thompson, 996 F.2d. 1560, 1568 (4th Cir. 1993), cert. denied, 114 S.Ct. 487 (1993) (citing Clozza v. Murray, 913 F.2d. 1092, 1100 (4th Cir. 1990), cert. denied, 499 U.S. 913 (1991)).

Nevertheless, with regard to the ineffective assistance of counsel claims that were adjudicated on the merits by the South Carolina state court, this Court's review is limited by the deferential standard of review set forth in 28 U.S.C. §2254(d), as interpreted by the Supreme Court in Williams v. Taylor, 529 U.S. 362 (2000). See Bell v. Jarvis, supra; see also Evans, 220 F.3d at 312 [Under § 2254(d)(1) and (2), federal habeas relief will be granted with respect to a claim adjudicated on the merits in state court proceedings only where such adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States", or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding"]. Therefore, this Court must be mindful of this deferential standard of review in considering the ineffective assistance of counsel claims asserted by Petitioner in his Ground One.

Where allegations of ineffective assistance of counsel are made, the question becomes "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 694. In Strickland, the Supreme Court articulated a two prong test to use in determining whether counsel was constitutionally ineffective. First, the Petitioner must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel's performance was below the objective standard of reasonableness guaranteed by the Sixth Amendment. Second, the Petitioner must show that counsel's deficient performance prejudiced the defense such that the Petitioner was deprived of a fair trial. In order to show prejudice a Defendant must show that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Mazzell v. Evatt, 88 F.3d 263, 269 (4th Cir.1996). For the reasons set forth and discussed hereinbelow, Petitioner has failed to meet his burden of showing that his counsel was ineffective under this standard. Smith v. North Carolina, 528 F.2d 807, 809 (4^th Cir. 1975)[Petitioner bears the burden of proving his allegations when seeking a writ of habeas corpus].

A.

(Failure to Investigate Competency, Mental Health & Sanity)

At his PCR hearing, Petitioner testified that he suffered impairments and received a disability check, and that his trial counsel failed to address and find out information about his mental issues. (R.p. 599). When questioned what his mental issues were, he testified that he had PTSD, and that he had told his trial attorney this information. (R.pp. 600-601). The PCR judge found that with regard to Petitioner's allegation of ineffective assistance of counsel for failing to conduct a pre-trial investigation into his mental health and competency to stand trial, even though counsel was aware of his mental health issues such as PTSD, disability determination and other mental issues, Petitioner failed to carry his burden. (R.pp. 723-726).

An accused who lacks the capacity to distinguish moral or legal right from moral or legal wrong at the time of the crime is relieved of responsibility for his acts. State v. Law, 244 S.E.2d 302 (S.C. 1978); State v. Cannon, 197 S.E.2d 678 (S.C. 1973). This

is the M'Naghten insanity defense, codified as S.C.Code 17-24-10 (Cum.Supp.1988).

See Davenport v. State, 389 S.E.2d 649, 649 (S.C. 1990). The PCR court noted that the only testimony Petitioner provided in support of his contention that he was either incompetent or insane was that he suffered from PTSD and had been classified as disabled, and that in order to show he was prejudiced by his counsel's failure to pursue a defense of insanity, Petitioner must produce some evidence of insanity or a showing that with the exercise of due diligence, an insanity defense could have been developed. However, the PCR court found that Petitioner had failed to articulate an argument supporting an insanity defense, noted that the record was devoid of any evidence that Petitioner was either incompetent or insane at the time of his trial or at the time of the offense, and that counsel's testimony was credible that he had no indication or reason to question the Petitioner's competence. The PCR court therefore found that Petitioner had failed to meet his burden of showing that he was incompetent at the time of trial or that his mental health issues could support an insanity defense.

The PCR Court's findings and conclusions are supported by the record in this case. At the PCR hearing, Petitioner's trial counsel testified that Petitioner understood the conversations they had, understood the criminal justice system, and that there was no doubt in his mind that he was competent. With regard to Petitioner receiving disability checks, counsel testified that it appeared to him that Petitioner enjoyed the life-style and working when he needed to and not working when he could get some other source of income. (R.p. 662). Counsel further testified that Petitioner understood counsel's role and the Judge's role, that he wrote pages of notes from each visit when Petitioner would tell him what they needed to pay attention to, what they needed to work on, what they needed to look at, and his concerns, that he talked to the Petitioner and "there was no reason to believe there was anything mentally deficient, that he suffered from any kind of mental illness that kept him from being criminally responsible of understanding the process." (R.p. 676).

This evidence does not show that Petitioner met the requirements for a M'Naghten insanity defense, and Petitioner has presented no evidence to show that any further investigation by his counsel could have uncovered any evidence that he was incompetent or insane at the time that he committed the acts or at the time of his trial. Therefore, Petitioner has failed to show that trial counsel's performance was deficient in not investigating Petitioner's competence, mental health, or sanity. Furthermore, even assuming that counsel had further investigated this issue, Petitioner has not shown the likelihood of a different outcome, and as a result has failed to show any prejudice as a result of counsel's failure to investigate these matters. Petitioner's claim that his counsel was ineffective on this ground should therefore be dismissed. Evans, 220 F.3d at 312 [Federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding]; Williams v. Taylor, supra; Strickland v. Washington, supra.; Greene v. Fisher, 132 S.Ct. 38, 43 (2011)[observing that AEDPA's "standard of 'contrary to, or involv[ing] an unreasonable application of, clearly established Federal law' is difficult to meet, because its purpose] is to ensure that federal habeas relief functions as guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction"].

B.

(Failure to Investigate and Argue Third-Party Guilt)

At his PCR hearing, Petitioner testified that his counsel failed to investigate a love triangle between the victim, Ben Nivens, and Hillard Lee Walker. Petitioner testified that there was a Crime Stoppers report that was part of discovery that showed someone was watching the victim prior to the night of her death, and that Walker had threatened that he would kill the victim if he caught her with someone else.⁹ Petitioner testified that he told his attorney about this issue and thought that "at some point, [counsel] may of said that he don't, he didn't feel like he could get it on record or something to that effect." However, Petitioner testified that although the testimony may have been barred prior to 2006, that there was a 2006 case ( Holmes v. South Carolina, 547 U.S. 319 (2006)), which said these type of issues could be raised and used for a defense. (R.pp. 602-603).

9 Petitioner also testified that a $20.00 bill that was a memento from a concert that she went to with Walker had been stolen, and implied that could have been relevant to who committed the crime. (R.pp. 619-620); see also (R.pp. 225-226).

In Holmes, the United States Supreme Court held a trial court may not exclude a defendant's evidence of third-party guilt based on an assumption that "the prosecution's evidence, if credited, would provide strong support for a guilty verdict" because such an assumption presumes the strength of the prosecution's case and deprives a defendant of a fair trial. 547 U.S. at 330-31; see Hester v. Ballard, 679 Fed.Appx. 273, 283 (4th Cir. 2017) ("In other words, the Holmes Court prohibited trial courts from excluding evidence of third-party guilt based solely on the strength of the prosecution's evidence."). However, the Holmes Court left intact the "widely accepted" evidentiary rules governing third-party guilt, including the rule in State v. Gregory, 198 S.C. 98, 16 S.E.2d 532 (1941)—which the Holmes Court favorably cited and upheld. See 547 U.S. at 330-31 & n.*. In Gregory, the South Carolina Supreme Court held third-party guilt evidence is admissible if it "raise[s] a reasonable inference or presumption as to [the defendant's] own innocence," but is inadmissible if it merely "cast[s] a bare suspicion upon another" or "raise [s] a conjectural inference as to the commission of the crime by another." 198 S.C. at 104, 16 S.E.2d at 534.

See Rice v. Warden, Leath Corr. Inst., No. 16-2610, 2017 WL 4250180, at *6 (D.S.C. Sept. 26, 2017).

The PCR judge found that Petitioner specifically alleged that counsel failed to admit an alleged Crime Stoppers report that detailed instances of criminal domestic violence among the purported love triangle, and that counsel was ineffective for failing to request a third-party guilt defense jury charge. However, the PCR judge held that Petitioner failed to meet his burden of proof establishing that there was any remaining evidence that counsel could have presented to support a defense of third-party guilt. The PCR judge found that counsel's testimony was credible that there was no direct evidence supporting the Petitioner's theory, particularly based upon the fact that neither DNA nor fingerprints found at the crime scene matched either man involved in the love triangle. Further, the PCR judge held that counsel's testimony was credible that he effectively developed and argued the Petitioner's theory at trial. The PCR judge noted that the trial transcript, which revealed counsel effectively elicited evidence supporting the Petitioner's theory during his cross examination of Ben Nevins, was most compelling on this issue. Further, with regard to not introducing the Crime Stoppers report, the PCR judge found that Petitioner failed to present any purportedly beneficial testimony or evidence supporting his theory at the PCR hearing.¹⁰ The PCR judge also noted that mere speculation as to what a witness' testimony would have been by itself cannot satisfy the Petitioner's burden of showing prejudice, and that counsel's testimony that he told Petitioner that the report would not be admissible at trial was credible. (R.pp. 727-728).

10 Indeed, Petitioner has not placed any evidence into the record to show that this alleged Crime Stoppers report even exists.

The record supports the PCR Court's determination that counsel was not ineffective. Nevins testified at trial that he had a relationship with the victim where they would visit each other houses, and it was sometimes sexual, sometimes not. (R.pp. 152-153). Nevins also testified that prior to his relationship with the victim, Walker had been the victim's boyfriend. (R.p. 156). On cross examination, counsel asked Nevins if he was jealous of Walker, to which he responded by explaining how the victim acted toward Walker when he was around, but that he was not jealous. (R.pp. 158-159). For his part, Petitioner's counsel testified that while the victim had a former boyfriend (Walker), the Petitioner's roommate, and that she was kinda seeing someone else (Nevins), that there was nothing that directly pointed to any individual. Even so, counsel testified that he tried to create doubt by pointing to other people, like Nivens' son who was probably jealous of his father's relationship and Walker, who did well for the defense by admitting he had a relationship with the victim and was supposedly jealous of Nivens. Counsel testified that they put all of that (information about the victim's various relationships and potential jealousies) before the jury, but that they also did DNA testing on Nivens and Walker and did not find any matches. Counsel also testified that part of his strategy was to try to expose the holes in the State's case relating to such things as not having these individuals' fingerprints compared, and that there was also a roll from a digital camera that was not developed. (R.pp.. 663-665).

Petitioner has not presented any other evidence concerning third-party guilt which counsel could have moved to admit during his trial, and simply speculates that the outcome of the trial would have been different if counsel had further investigated or presented more evidence. Therefore, Petitioner has failed to show that trial counsel's performance was deficient in further presenting evidence of third-party guilt. Furthermore, even assuming that counsel had further investigated, Petitioner has not shown the likelihood of a different outcome, and as a result has failed to show any prejudice as a result of counsel's failure to investigate these matters. Petitioner's claim that his counsel was ineffective on this ground should be dismissed. Evans, 220 F.3d at 312 [Federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding]; Williams v. Taylor, supra; Strickland v. Washington, supra.; Greene, 132 S.Ct. at 43 [observing that AEDPA's "standard of 'contrary to, or involv[ing] an unreasonable application of, clearly established Federal law' is difficult to meet, because its purpose] is to ensure that federal habeas relief functions as guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction"].

C.

(Failure to Obtain DNA Expert and Challenge DNA Evidence)

Petitioner generally alleges that counsel was ineffective in challenging the State's DNA evidence, while specifically alleging that counsel failed to adequately challenge the chain of custody and law enforcement's failure to properly process the crime scene. Petitioner also argues that his counsel was ineffective for failing to retain an independent DNA expert to testify and explain why the Petitioner's DNA was found in the victim's home and underneath her fingernails. This claim is without merit.

Petitioner testified at his PCR hearing that counsel should have brought out that he worked for the victim in her house and that he had been working on her computer system including moving bedroom furniture around to find possible routing cable installation, and that he also worked on all of her vehicles, motorcycles, and all kinds of things that she had contact with, which he contends could have explained the presence of his DNA. Petitioner also testified that his DNA could have been present from a secondary transferred source. (R.p. 604). Petitioner further believed that there were fingerprints on the shadow box picture frame that had held the allegedly missing $20 bill, and that those fingerprints were negative for being matched to either him or the victim so a DNA expert should have been brought in to testify about these matters. (R.p. 605). Petitioner also testified that the victim's hands should have been immediately bagged to prevent contamination, which was not done, and that his counsel should therefore have challenged this evidence and hired an expert to testify as to the possible effects of contamination. (R.pp. 610, 612). Finally, Petitioner testified that he thought his counsel should have challenged the DNA evidence based upon the fact that the box containing the DNA evidence had its seal broken between the time of the autopsy by Dr. John Wren, the State's pathologist, and when it was opened approximately thirty-one (31) hours later, when it was retrieved by Officer Robert Rosenburg, the evidence custodian. (R.p. 607).

However, the PCR judge found that the State established the chain of custody and processing of the crime scene in accordance with the standards set out in the PCR order, and that various failures regarding the DNA testing, chain, crime scene processing, and obtaining proof of the Petitioner's scratch on his neck were presented to the jury by Petitioner's trial counsel. The PCR court found that trial counsel's testimony that he effectively elicited information supporting Petitioner's theory of the case at trial was credible, and that counsel's strategic trial decision not to present the testimony of an independent DNA expert was also valid. (R.p. 730). The PCR court held that counsel's testimony that he interviewed potential DNA experts prior to trial, none of whose testimony would have been beneficial, was credible, and that counsel's testimony that he was able to elicit favorable testimony and all the requisite testimony supporting the Petitioner's case from the State's scientists was also credible. Notably, the PCR court observed that Petitioner had failed to provide the PCR Court with any actual evidence tending to prove his assertion that a DNA expert would have offered beneficial or exculpatory testimony on his behalf. (R.p. 731). Further, the PCR court stated that even if Petitioner had proved counsel was ineffective for failing to produce an independent DNA expert, or even if the Petitioner had been successful on appeal, it was unlikely that he would have been granted a new trial. The PCR court also noted that just because Petitioner exercised his rights under the Access to Justice Post-Conviction DNA Testing Act, that did not mean Petitioner had satisfied the requirements of the Act, had met his burden of proving the DNA evidence was actually exculpatory and supported his theory of the case, and had established the requisite prejudice supporting the grant of a new trial. Rather, the PCR court held that Petitioner failed to show that he suffered prejudice as a result of counsel's alleged failures. (R.pp. 732-733).

The record supports the PCR Court's findings. Petitioner's counsel testified that he attacked the State's DNA experts' testimony by bringing out that they did not know how long the DNA had been there or how it got there, that they did not know if it had been there an hour or for several days or weeks. Counsel also testified that he brought out the fact that the victim's hands were rough and things could stick to such a rough surface easier than to a smooth one. (R.p. 661). Counsel testified that he did not consider getting a DNA expert due to the strong match and that Petitioner did not deny being in the house. Rather, he solicited from the State's witnesses that Petitioner moved furniture in Petitioner's house, including her bedroom, that he moved things around to set up her computer for the telephone internet access looking for the phone jack, and that he did some programming on her computer, which could explain why his DNA was there. (R.p. 663). Petitioner's counsel also questioned Dr. Wren at trial and inquired, "even if somebody takes a shower or bath and cleans his hands, if they come in contact with, say, something that another person has touched, they can pick up some materials on their hands", to which Dr. Wren responded, "[p]robably a little bit, yeah." (R.p. 375). Petitioner's former boss, Ms. Phyllis Pack, also testified that Petitioner had previously been in the victim's house and had helped the victim with her computer by installing programs on it. (R.p. 217).

Counsel testified that his strategy was to argue that Petitioner's DNA certainly had a reason to be there, that DNA can stay for a long time, and then test positive, and by pointing out things the State did not do properly in their investigation. (R.p. 664). Counsel also testified that the fact that they did not bag the victim's hands until afer they had moved her body around the room worked into counsel's argument that the DNA was picked up when her body was moved. (R.p. 666). Counsel testified that he did not see any advantage to getting a separate defense DNA expert when they could get the State's expert witnesses to say what they were hoping to bring out about not knowing how long the DNA had been there and not knowing how the DNA got there. He also testified that "we were at the numbers that were I think 950 billion to one that, even if we cut that in half, we're still talking 50 or 75 times the population of the world. So the numbers were - we weren't gonna be able to bring those numbers down." (R.pp. 670-671).

As for the box containing evidence that had a seal broken, counsel testified that the box was sealed on two sides, so that even if you broke one side, the other side was not broken, which means you could not get into the box. (R.p. 666). Officer Rosenburg's trial testimony confirmed counsel's testimony. He testified that "when I received it, one seal on one side was broken. It - - what I did was reseal beside it and date and initial it and signed it. You cannot open this box with one seal broken. The only way you can open it is if both seals had to be broken. Only one side was broken." (R.p. 329). Officer Rosenburg also testified that he was very confident that the box had not been opened or broken or tampered with in any way when he received it. (R.p. 329).

In sum, while Petitioner now disagrees with his trial counsel's strategy relating to the DNA evidence with the benefit of hindsight, tactical and strategic choices made by counsel after due consideration do not constitute ineffective assistance of counsel. Strickland, 466 U.S. at 689. There is a strong presumption that counsel's conduct during trial was within the wide range of reasonable professional assistance, and this Court should not scrutinize counsel's performance by looking at the decisions made in an after the fact manner. Id. at 688-689; Bunch v. Thompson, 949 F.2d 1354 (4th Cir.1991), cert. denied, 505 U.S. 1230 (1992); Horne v. Peyton, 356 F.2d 631, 633 (4th Cir.1966), cert. denied, 385 U.S. 863(1966); Burger v. Kemp, 483 U.S. 776 (1987); see also Harris v. Dugger, 874 F.2d 756, 762 (11th Cir.1989), cert. denied, 493 U.S. 1011 (1989) [An informed decision by trial counsel should not be second guessed by a reviewing court.]. Here, it is clear that, regardless of the evidence and argument put forth by trial counsel, the jury simply did not accept the Petitioner's version of events. Petitioner has not met his burden of showing that if his counsel had obtained a defense DNA expert or attacked the DNA evidence in a different manner, it would have resulted in a different outcome in his case. Rather, he only speculates that it may have done so.

The PCR court found trial counsel's testimony for why he made the decisions he did to be credible, and credibility findings are entitled to great deference by this court in a habeas action. Wilson v. Ozmint, 352 F.3d 847, 858-859 (4th Cir. 2003); Marshall v. Lonberger, 459 U.S. 422, 434 (1983)["28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court . . . ."]. While a district court may, in an appropriate case, reject the factual findings and credibility determinations of a state court; Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); the court may not substitute its own credibility determinations for those of the state court simply because it may disagree with the state court's findings (assuming that were to be the case). See Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) ["[F]or a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear . . . . Indeed, 'federal habeas courts [have] no license to redetermine credibility issues of witnesses whose demeanor has been observed by the state trial court, but not by them.'" (quoting Marshall, 459 U.S. at 434)]. Further, Petitioner has not shown that the state court's findings were unreasonable under § 2254(d), nor has Petitioner overcome the presumption accorded the PCR court's findings. See Pondexter v. Dretke, 346 F.3d 142, 147-149 (5th Cir. 2003)[finding that the district court "failed to afford the state court's factual findings proper deference" by "rejecting the state court's credibility determinations and substituting its own views of the credibility of witnesses."]; Evans, 220 F.3d at 312; see also Seymour v. Walker, 224 F.3d 542, 553 (6th Cir. 2000)["Given the credibility assessment required to make such a determination and the deference due to state-court factual findings under AEDPA, we cannot say that the trial court's finding was unreasonable under § 2254(d)(2)."].

Therefore, Petitioner has failed to meet his burden of showing that trial counsel's performance was deficient in his handling of the DNA evidence. Furthermore, even assuming arguendo that a defense expert should have been retained or a different strategy employed, Petitioner has not shown the likelihood of a different outcome, and as a result has failed to show any prejudice as a result of counsel's decisions. Petitioner's claim that his counsel was ineffective on this ground should therefore be dismissed. Evans, 220 F.3d at 312 [Federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding]; Williams v. Taylor, supra; Strickland v. Washington, supra.; Greene, 132 S.Ct. at 43 [observing that AEDPA's "standard of 'contrary to, or involv[ing] an unreasonable application of, clearly established Federal law' is difficult to meet, because its purpose] is to ensure that federal habeas relief functions as guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction"].

D.

(Failure to Object to the Solicitor's Closing Argument & Brady Violations)

In his APCR, Petitioner alleged that his counsel was ineffective for failing to object to the Solicitor's closing argument and Brady violations. Petitioner specifically testified that counsel failed to investigate the State's failure to turn over evidence (the Crime Stoppers report) and failure to object to the improper implication made by the Solicitor during his closing argument regarding a scratch found on the Petitioner's neck at the time of his arrest, arguing that the scar on his neck was over twenty (20) years old and was just "razor irritated." (R.p. 612).

However, the PCR court found that testimony had been previously presented regarding a mark on the Petitioner's neck, and that the Solicitor was allowed to reference evidence or reasonable inferences drawn from the evidence. Accordingly, the PCR court held that there was no basis for trial counsel to object. The PCR court further found that with respect to Petitioner's claim of a Brady violation, counsel's testimony was the most credible in that there was no report to turn over. See generally Riddle v. Ozmint, 631 S.E.2d 70, 73 (S.C. 2006)["An individual asserting a Brady violation must demonstrate that evidence: (1) favorable to the accused; (2) in the possession of or known by the prosecution; (3) was suppressed by the State; and (4) was material to the accused's guilt or innocence was impeaching." (citing Kyles v. Whitley, 514 U.S. 419 (1995)]. The PCR court's credibility findings are entitled to substantial deference on habeas corpus review. Marshall, 459 U.S. at 434 ["28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court ..."]. As previously noted, while a district court may, in an appropriate case, reject the factual findings and credibility determinations of a state court; Miller-El, 537 U.S. at 340; the court may not substitute its own credibility determinations for those of the state court simply because it disagrees with the state court's findings (assuming that were to be the case). See Seymour, 224 F.3d at 553 ["Given the credibility assessment required to make such a determination and the deference due to state-court factual findings under AEDPA, we cannot say that the trial court's finding was unreasonable under § 2254(d)(2)."].

Petitioner has not presented any evidence to show that any further investigation by his counsel could have uncovered any Crime Stoppers report. Therefore, Petitioner has failed to show that trial counsel's performance was deficient in not further investigating why this alleged report was not turned over to him. Smith, 528 F.2d at 809 [Petitioner bears the burden of proving his allegations when seeking a writ of habeas corpus]. Furthermore, even assuming that counsel had further attempted to obtain such a report, Petitioner has not shown what this alleged report contained and the likelihood of a different outcome if it had been obtained, and has therefore failed to show any prejudice as a result of counsel's failure to take any further actions with regard to this issue. Petitioner has also failed to present any cogent argument or evidence that would have provided a basis for his counsel to object to the Solicitor's comments regarding the scratches on his neck. Petitioner's claim that his counsel was ineffective on this ground should therefore be dismissed. Evans, 220 F.3d at 312 [Federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding]; Williams v. Taylor, supra; Strickland v. Washington, supra.; Greene, 132 S.Ct. at 43 [observing that AEDPA's "standard of 'contrary to, or involv[ing] an unreasonable application of, clearly established Federal law' is difficult to meet, because its purpose] is to ensure that federal habeas relief functions as guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction"].

E.

(Failure to Object to Improper Character Evidence)

Petitioner argues that his counsel was ineffective for failing to object to the admission of improper character evidence regarding his drug use, anger, violence, firearm use, and borrowing money. Petitioner asserts that counsel should have highlighted the State's witnesses' prior inconsistent statements and should have objected to attacks on his character and prior bad acts that had no relevance to this case. (R.pp. 614-617). Specifically, Petitioner testified that his counsel should have objected to the references of him being high on crack cocaine and carrying a gun, and that it was inconsistent for the Solicitor to have argued that $20 was stolen for drug money when there was $533.00 in plain view of the body that was not taken.¹¹ (R.pp. 615, 618-619).

11 While Petitioner refers to $533.00 being within plain view of the body, it appears that he is actually referring to cash that was noted in the incident report to have been in an open drawer in an adjacent bathroom. See Petitioner's Exhibit 41.

However, the PCR court noted that the State's theory of the case was that Petitioner was high on crack cocaine and that when the victim refused to loan him money, he became angry and killed her. Therefore, the PCR judge found that the evidence and testimony regarding Petitioner's crack cocaine abuse and previous times borrowing money were relevant and admissible to prove motive. (R.p. 736). See State v. Braxton, 541 S.E.2d 833, 835 (S.C. 2001); Rule 404(b), SCRE [Evidence of prior bad acts admissible to prove motive]. The PCR court also held that counsel had no basis to object to inconsistent witness testimony, as he effectively impeached the State's witnesses and was effectively able to use cross-examination to address and combat harmful testimony. The PCR judge also found that the testimony in question would not have been excluded as an impermissible reference to a prior bad act but would have been admissible as part of the res gestate of the crime, and was therefore not improper character evidence. See State v. King, 514 S.E.2d 578, 582-583 (S.C. 1999); State v. Adams, 470 S.E.2d 366, 370-371 (S.C. 1991)[Noting that the res gestate theory recognizes that evidence of bad acts may be an integral part of the crime with which a defendant is charged, or may be needed to aid the fact finder in understanding the context in which the crime occurred], overruled on other grounds by State v. Giles, 754 S.E.2d 261 (S.C. 2014). The PCR judge additionally found that defense counsel may decide as a strategic matter not to object because his objection would highlight the erroneous evidence, argument, or charge, and accordingly, counsel executed a valid strategy and was not ineffective. (R.p. 737).

The case record supports the PCR court findings. Counsel testified that the one incident the State tried to make a big deal out of was where a married couple, the Glenns, witnessed Petitioner getting angry when a girlfriend, who he had to evict, was causing trouble and came to his house. (R.p. 667). Counsel effectively questioned Mrs. Glenn and was able to get her to confirm that she would be angry if she and her husband had told someone to leave the house and they would not leave, and that's all Petitioner was doing. (R.pp. 270-271); see also (R.p. 673). As for Petitioner's crack cocaine use, Walker testified that when he lived with the Petitioner, he smoked crack cocaine with the Petitioner, and that Petitioner would borrow money from the victim to purchase alcohol and crack cocaine. (R.pp.224-225). However, on cross-examination Walker testified that when he and the Petitioner smoked crack they never had any problems with each other. (R.pp. 239-240). Walker also testified that they smoked crack together on the night before the victim was found, and that when they ran out of crack Petitioner did not seem angry and did not mention wanting to get any more crack. (R.p. 244). Mrs. Glenn also conceded on cross examination that she had never seen Petitioner smoke crack and had no first hand knowledge that crack made him angry or changed his attitude. (R.pp. 270-271). So counsel believed they disproved the State's crazed crack addict theory. (R.p. 667). Counsel testified that although he did not make a motion with regard to the characterization of the Petitioner as a "crazed crack addict", that every witness the State tried to call to try prove he was a "crazed crack addict", at the end said well "no, he wasn't." (R.p. 674). Therefore, while the State tried to argue that characterization, Petitioner's counsel countered in his closing argument: "[b]ut he's not. He's a normal person. He smokes crack sometimes, but there's no evidence that he ever gets violent, you know, wild, or anything. It's just not before you." (R.p. 674). Counsel also testified that he was able to show that Petitioner told Ms. Pack that he was going to call the Department of Social Services on her for the way she treated her child, which was not a threat of violence but a threat to report someone to the authorities, which effectively rebutted her testimony on cross-examination. (R.p. 673); see also (R.pp. 213-214).

Based on the record, Petitioner has failed to show that trial counsel's performance was deficient for not objecting to the Solicitor's characterization of him. Furthermore, even assuming that counsel had objected to the testimony at issue, Petitioner has not shown that the testimony would not have been admitted over counsel's objection or the likelihood of a different outcome if this evidence had been struck from the record, and as a result he has failed to show any prejudice as a result of counsel's failure to take any further actions with regard to this issue. Cf. Adams, 470 S.E.2d at 371 [Finding that "[t]he use of the cocaine here was inextricably intertwined with the robbery and murder. Under these circumstances, such evidence was properly admitted as part of the res gestae of the crime."] Petitioner's claim that his counsel was ineffective on this ground should therefore be dismissed. Evans, 220 F.3d at 312 [Federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding]; Williams v. Taylor, supra; Strickland v. Washington, supra.; Greene, 132 S.Ct. at 43 [observing that AEDPA's "standard of 'contrary to, or involv[ing] an unreasonable application of, clearly established Federal law' is difficult to meet, because its purpose] is to ensure that federal habeas relief functions as guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction"].

F.

(Failure to Prepare and Properly Investigate)

In his APCR, Petitioner alleged that counsel did not conduct an adequate pre-trial investigation or prepare enough for trial. At his PCR hearing, he testified that counsel only met with him less than an hour on two occasions. (R.pp. 630-631). However, Petitioner's counsel testified at the PCR hearing as to the extent of their meetings and his investigation of Petitioner's case, including that he wrote pages of notes from each visit when Petitioner would tell he what they needed to pay attention to, what they needed to work on, what they needed to look at, and his concerns. (R.pp. 655-657, 676). Counsel also testified as to numerous witnesses who he contacted on behalf of the Petitioner. However, as he tracked down these witnesses and spoke to them, all of the witnesses, except perhaps Petitioner's sister, indicated that their testimony would be against the Petitioner and did not offer anything favorable to his case. (R.pp. 658-660). Even with respect to Petitioner's sister, who was originally going to testify that she had smoked crack with the Petitioner and that he did not act crazy when he smoked,¹² as the trial neared she changed her story and said that she last saw the Petitioner a month before the incident and that it had probably been four or five years since she smoked crack with him and did not know how he was on crack. (R.pp. 658-659). By contrast, Petitioner has not offered any evidence of any witness who was willing to offer favorable testimony that could have been used at his trial that was not pursued by his trial counsel.

12 This testimony was to counter the State's theory that he was acting crazed from smoking crack cocaine.

The PCR court found that the Petitioner failed to point to any specific matters counsel failed to discover, or any defenses that could have been pursued had counsel been more fully prepared or had additional time prior to the case being called to trial. (R.p. 739). The PCR court further held that Petitioner's allegations that counsel was unprepared, did not properly investigate, and did not sufficiently meet with Petitioner prior to trial lacked merit. To the contrary, the PCR court found that counsel's testimony on this issue was credible, and that it was clear from the record and from counsel's testimony that he met with the Petitioner appropriately and fully investigated the possible defenses for trial. The PCR court noted that counsel had years of experience representing clients on similar charges, and that Petitioner failed to show any prejudice that may have resulted from counsel's alleged inadequate preparation or lack of investigation. Id.

The undersigned agrees. Petitioner has failed to show that trial counsel's performance was deficient in not further investigating his case. Furthermore, even assuming arguendo that defense counsel had further investigated, Petitioner has not shown the likelihood of a different outcome, and as a result has failed to show any prejudice as a result of counsel's failure to do so. Cf. Bannister v. State, 509 S.E.2d 807, 809 (S.C. 1998)["This Court has repeatedly held a PCR applicant must produce the testimony of a favorable witness or otherwise offer the testimony in accordance with the rules of evidence at the PCR hearing in order to establish prejudice from the witness' failure to testify at trial."]; Glover v. State, 458 S.E.2d 539, 540 (S.C. 1995)["Further, because the other witnesses respondent claimed could have provided an alibi defense did not testify at the PCR hearing, respondent could not establish any prejudice from counsel's failure to contact these witnesses."]; Clark v. State, 434 S.E.2d 266, 267-268 (S.C. 1993)[pure conjecture as to what a witness' testimony would have been is not sufficient to show a reasonable probability the result at trial would have been different]; Underwood v. State, 425 S.E.2d 20, 22 (S.C. 1992)[prejudice from trial counsel's failure to interview or call witnesses could not be shown where witnesses did not testify at PCR hearing]. Petitioner's claim that his counsel was ineffective on this ground should be dismissed. Evans, 220 F.3d at 312 [Federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding]; Williams v. Taylor, supra; Strickland v. Washington, supra.; Greene, 132 S.Ct. at 43 [observing that AEDPA's "standard of 'contrary to, or involv[ing] an unreasonable application of, clearly established Federal law' is difficult to meet, because its purpose] is to ensure that federal habeas relief functions as guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction"].

G.

(Conflict of Interest)

Petitioner asserts that counsel should have been replaced due to a conflict of interest because of his prior service as a magistrate judge and a solicitor. The PCR court held that there was no credible evidence presented to support this claim, and that Petitioner failed to show an actual conflict of interest in the case based on the record and testimony. (R.pp. 739-741).

"To establish ineffective assistance of counsel on conflict of interest grounds, a petitioner must establish that (1) his attorney labored under 'an actual conflict of interest' that (2) 'adversely affected his lawyer's performance.'" Henderson v. McFadden, No. 14-511, 2015 WL 433492, at *3 (D.S.C. Feb. 3, 2015)(quoting Mickens v. Taylor, 240 F.3d 348 (4th Cir.2001) (citing Cuyler, 446 U.S. at 348)), appeal dismissed, 609 F. App'x 160 (4th Cir. 2015). "[U]ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance of counsel." Cuyler v. Sullivan, 446 U.S. 335, 350 (1980). Moreover, even if an actual conflict of interest is established, the burden remains on Petitioner to demonstrate that the conflict had an adverse effect on his defense. Henderson, 2015 WL 433492 at * 3 (citing Cudd v. Ozmint, No. 08-2421, 2009 WL 3157305 at ** 2-3 (D.S.C. Sept. 25, 2009)[holding petitioner's argument failed on merits because he did not demonstrate that conflict of interest adversely affected counsel's performance]).

"[T]he Sullivan standard is not properly read as requiring inquiry into actual conflict as something separate and apart from adverse effect. An 'actual conflict' for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance." Mickens v. Taylor, 535 U.S. 162, 172 n. 5 (2002). Cf. Russell v. Lynaugh, 892 F.2d 1205, 1214 (5^th Cir. 1989), cert. denied, 501 U.S. 1259, rehearing denied, 501 U.S. 1277 (1991) [finding no conflict of interest where "no evidence that the lawyer representing [the witness at issue] on any active matter; nor is there any evidence he questioned [this witness] any less aggressively as a result of the alleged representation than he otherwise would have done."]; Simmons v. Lockhart, 915 F.2d 372, 378 (8^th Cir. 1990)[in finding lack of prejudice: "We have studied the transcript of the trial, with particular reference to counsel's cross-examination of the witness [ ], and we are unable to fault that effort at discrediting [witness at issue] and his testimony"]; Wright v. Smith, 348 Fed.Appx. 612, 613 (2d Cir. 2009) [noting "uninhibited cross-examination," finding "the record does not support the contention that counsel failed to represent [the Defendant] to the best of his ability because of any prior representation"].

In this case, Petitioner has not shown any conflict of interest in his counsel prosecuting other defendants earlier when he worked as a solicitor and/or a judicial capacity, nor has Petitioner shown that he was prejudiced due to his counsel's prior prosecution of defendants as a Solicitor years prior to Petitioner's trial. Accordingly, with regard to Petitioner's claim that his counsel was had a conflict of interest where counsel had previously prosecuted other defendants and/or served in a judicial capacity, Petitioner has not shown that the state court findings on this issue were in error. (R.pp. 739-740). See State v. Gregory, 612 S.E.2d 449, 450 (S.C. 2005)["An actual conflict of interest occurs where an attorney owes a duty to a party whose interests are adverse to the defendant's]; cf, 736 N.Y.S.2d 155 (N.Y.App.Div. 2002)[finding there was no conflict of interest where defendant's public defender had previously prosecuted him on unrelated charges when she was employed as an assistant district attorney]; State v. Cobbs, 221 Wis.2d 101, 584 N.W.2d 709 (1998)[concluding there was no actual or serious potential conflict where defendant's counsel had previously prosecuted defendant while working in the district attorney's office]. As discussed herein, Petitioner has not shown any evidence as to what his counsel could or would have done differently, and based on the overwhelming evidence of Petitioner's guilt presented at his trial, Petitioner has not shown that the outcome of his trial would have been different even if his counsel had taken any different actions, nor has he shown prejudice from his counsel's actions.

Therefore, Petitioner has not shown that the findings and rulings of the state courts were unreasonable, or that his counsel was ineffective. Evans, 220 F.3d at 312; Williams v. Taylor, supra; Strickland v. Washington, supra.; Greene, 132 S.Ct. at 43 [observing that AEDPA's "standard of 'contrary to, or involv[ing] an unreasonable application of, clearly established Federal law' is difficult to meet, because [its purpose] is to ensure that federal habeas relief functions as a 'guard against extreme malfunctions in the state criminal justice systems', and not as a means of error correction"]. This issue should be dismissed.

H.

(Failure to Present Petitioner's Testimony)

Although Petitioner asserts that counsel was ineffective for failing to allow him to testify on his behalf, the PCR court found counsel's testimony was credible that he and the Petitioner extensively discussed his right to testify, that Petitioner discussed his right to testify with the Petitioner's sister, that the Petitioner came to his own decision not to testify freely, intelligently, voluntarily and of his own will, and that based on Petitioner's poor performance on cross-examination during his pre-trial hearing, all parties agreed with Petitioner's decision not to testify. The PCR court also found that, moreover, the record reflected that counsel and the Petitioner again took time to discuss Petitioner's right to testify at the end of the State's case, and that the trial court fully advised the Petitioner of his right to testify, which he waived, thereby curing any error on behalf of counsel. (R.p. 741); see also (R.pp. 410-412).

The record and evidence support the PCR Court's findings in this case. Petitioner's counsel testified that prior to trial they discuss Petitioner's options and that they did not see much of substance that he could be impeached with, so they would wait until after the suppression hearing to see how Petitioner felt about testifying. (R.p. 667). After the suppression hearing, counsel talked with the Petitioner and Petitioner conceded that he did badly, and that at that point, Petitioner was afraid of testifying because he did not think that he would do well. Counsel told him that they would discuss it later, and that they were planning to put up his sister and him. At the conclusion of the State's case, counsel decided not to put his sister on the stand because she had changed her testimony. Counsel also said that Petitioner relayed that he was afraid that he would do poorly on cross-examination and talked to his sister about testifying. Counsel testified that he could have gone either way, but that he was not sure how well Petitioner would hold up under cross-examination, and that he would also not be able to testify to any specific alibi or self-defense because his testimony would have been that he was home asleep. (R.p. 669). Counsel testified that although he agreed with the Petitioner, as did his sister, it was Petitioner's decision not to testify, but that if Petitioner had wanted to testify, he would have put him on the stand. (R.p. 675).

The record further shows that the trial court also advised Petitioner of his right to testify, as follows:

[y]our lawyer tells me that you do not wish to testify in the trial of this case. Has [sic] he explained to you the fact that you being charged with a crime have an absolute right to remain silent? Nobody can make you take the witness stand and testify. Nobody can require that you make a statement or answer any questions. At the same time, if you want to provide this jury with any additional evidence by way of testimony or otherwise now is the only opportunity that you will have to do so. In other words, you can't wait until after the jury has reached a decision and change your mind, because it'll be too late. Now is the opportunity that you have to testify if you wish. But it's your choice. Nobody can require it. Have you had plenty of time to discuss with your lawyer your right to testify, as well as not testify?

Petitioner responded, "Yes, sir." (R.pp. 410-411). Petitioner also affirmed to the trial court that he and counsel had discussed the advantages and disadvantages of testifying, as well as not testifying; that he appreciated those advantages and disadvantages; that he had had time to reflect upon his decision as to whether to testify or not; that he had reached a decision; that he was not going to testify; that it was a decision that he reached of his own free will and accord; that nobody forced him into it; that no one pressured him into his decision; that no one even suggested to him that it was the decision he "ought to make"; that he made the decision on his own after carefully reflecting upon all of the factors associated with such a decision; and that he made the decision after fully discussing it with his lawyer. (R.pp. 411-412).

Petitioner has presented no evidence to contradict his earlier statements made to the trial court. See Blackledge v. Allison, 431 U.S. 63, 74 (1977)["Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible."](citations omitted). Hence, although Petitioner alleges that his counsel was ineffective for not allowing him to testify, his own statements contradict his assertions, and there is no evidence in the record to support his allegation. Further, as previously discussed, based on the overwhelming evidence of Petitioner's guilt presented at his trial, Petitioner has not shown that the outcome of his trial would have been different even if he had testified, nor has he shown prejudice from his counsel's actions. Therefore, Petitioner has not shown that the findings and rulings of the state courts were unreasonable, or that his counsel was ineffective. Evans, 220 F.3d at 312; Williams v. Taylor, supra; Strickland v. Washington, supra.; Greene, 132 S.Ct. at 43 [observing that AEDPA's "standard of 'contrary to, or involv[ing] an unreasonable application of, clearly established Federal law' is difficult to meet, because [its purpose] is to ensure that federal habeas relief functions as a 'guard against extreme malfunctions in the state criminal justice systems', and not as a means of error correction"]. This issue should be dismissed.

I.

(Failure to Challenge the Confession)

Petitioner asserts that his counsel was ineffective for failing to obtain a jury charge on the voluntariness of his statement.¹³ The PCR court found that the trial court's charge to the jury regarding their role as fact finder, the [Petitioner's] presumption of innocence, about considering the weight and value of witness testimony and evidence, and the [Petitioner's] right not to testify, was proper, and that the trial court properly instructed the jury that in order to find the Petitioner guilty the burden remained on the State to prove each element of the offense beyond a reasonable doubt. (R.pp. 741-742). The PCR court further found that counsel's testimony was credible that he debated whether to attempt to suppress the Petitioner's statement and move for a Jackson v. Denno hearing as a tactical matter and considered allowing the State to admit the statement, as well as that counsel's testimony was credible that he was able to effectively examine law enforcement regarding the circumstances surrounding the interview and the alleged confession in great detail. The PCR court also found that counsel's assessment was credible that the circumstances surrounding Petitioner's interrogation and confession supported the defense's theory and strategy that law enforcement improperly handled the Petitioner's case. The PCR court noted that counsel related that although the Petitioner said, "I feel responsible", he also noted that Petitioner's statement was less than inculpatory and capable of many different interpretations and fell short of an admission of guilt. See (R.p. 665). Accordingly, the PCR held that counsel's strategy was valid to use the statements to focus on the fact that law enforcement did not videotape the interview, but videotaped all other proceedings.¹⁴

13 Although this issue is captioned as "Failure to Challenge the Confession", and counsel did file a pretrial motion to challenge its admission. The actual issue that Petitioner raises here is that counsel failed to request a jury instruction regarding the voluntariness of his statement.

14 The PCR court further noted that the voluntariness of Petitioner's confession was addressed on direct appeal and affirmed by the South Carolina Court of Appeals, which held that Petitioner had been read his Miranda rights, had never stopped talking, and never invoked his right to remain silent or right to counsel. State v. Stoudenmire, No. 2012-UP-628 (S.C.Ct.App. Nov. 28, 2012).

The PCR court also held that counsel's testimony was credible that the voluntariness of the Petitioner's confession was a non-issue at trial based on the trial court's ruling on the Petitioner's Jackson v. Denno motion. (R.pp. 105-106). The PCR court noted that counsel made a motion to suppress the Petitioner's statement to the police and that a full pre-trial hearing was held, at which the Petitioner testified. (R.pp. 35-106). Counsel then renewed his objection during trial at the time of the officer's testimony regarding the statement, arguing that it was not voluntarily given. (R.p. 281). However, the judge overruled his objection, finding that while Petitioner indicated possibly wanting a lawyer, that he agreed to talk to the officers without a lawyer and therefore waived his right to a lawyer. The judge also said that the lawyer cannot assert that right for the client, and that Petitioner never asserted that he did not want to talk and wanted his lawyer present. (R.p. 687). Petitioner's statement was deemed admissible, was read into the record and published for the jury, and the PCR Court found it was not a true confession. Moreover, the PCR court held that counsel effectively cross-examined the officer who published the Petitioner's statement. (R.p. 743); see also (R.pp. 290-303).

With regard to the jury charge, counsel testified that the trial judge normally held charge conferences in his chambers and off the record. However, counsel could not specifically remember if he requested a limiting jury instruction regarding Petitioner's statement. (R.pp. 687-689). The PCR court noted that it was not clear from the record whether counsel requested an instruction, whether an instruction was requested and denied, or whether the lack of giving the charge was a simple omission on the part of the trial court, but stated that while it would have been prudent to give an instruction on the voluntariness of Petitioner's statement, the omission of the instruction was subject to a harmless error analysis.

"On collateral review, a federal constitutional error is harmless unless there is 'actual prejudice,' meaning that the error had a 'substantial and injurious effect or influence' on the jury's verdict." Mansfield [v. Secretary, Dep't of Corrections ], 679 F.3d [1301] at 1307 [ (11 ^th Cir. 2012)] (quoting Brecht [v. Abrahamson, 507 U.S. 619], at 637 [(1993)]). Therefore, "an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." Id. (quoting Brecht, 507 U.S. at 633-34).

Robinson v. Reynolds, No. 15-3382-JFA-BM, 2016 WL 1743384, at *11 (D.S.C. Mar. 22, 2016), report and recommendation adopted, No. 15-3382-JFA-BM, 2016 WL 1732498 (D.S.C. May 2, 2016). The PCR court then held that Petitioner's allegation was without merit, because if counsel failed to request the instruction, failed to preserve the issue for appellate review, or the instruction was simply not given due to an omission on the part of the Court, such error was harmless beyond a reasonable doubt. Finally, the PCR court found that considering counsel's strategy as articulated herein and the breadth of the record in this case establishing Petitioner's guilt, it was clear beyond a reasonable doubt that any error in not giving the charge did not contribute to the verdict rendered in this case. See Strickland, 466 U.S. at 697 ["If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be followed."]. The undersigned agrees based on the record before this Court. Therefore, even assuming arguendo that Petitioner's counsel was deficient for failing to request the instruction at issue, Petitioner has failed to show prejudice, or that his trial was rendered fundamentally unfair by the trial court failing to give such an instruction.

Petitioner's claim that his counsel was ineffective on this ground should therefore be dismissed. Evans, 220 F.3d at 312 [Federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding]; Williams v. Taylor, supra; Strickland v. Washington, supra.; Greene, 132 S.Ct. at 43 [observing that AEDPA's "standard of 'contrary to, or involv[ing] an unreasonable application of, clearly established Federal law' is difficult to meet, because its purpose] is to ensure that federal habeas relief functions as guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction"].

J.

(Ineffective Assistance of Appellate Counsel)

Petitioner alleges that his appellate counsel was ineffective for failing to argue preserved error, and for failing to file a petition for rehearing on his behalf. However, the PCR court found that Petitioner articulated no specific grounds of appellate counsel error, that there was no evidence or testimony presented to show that appellate counsel did not raise the preserved issues that counsel felt had merit, and, further, that the South Carolina Supreme Court has held that appellate counsel has no duty to pursue rehearing and/or certiorari following the decision of the South Carolina Court of Appeals in a criminal direct appeal. (R.pp. 744-745). The undersigned can discern no reversible error in the PCR Court's findings on this issue.

A defendant is constitutionally entitled to effective assistance of appellate counsel on a direct appeal. Evitts v. Lucey, 469 U.S. 387 (1985); Tisdale v. State, 594 S.E.2d 166, 167 (S.C. 2004). A Petitioner may raise an ineffective assistance of appellate counsel claim by showing that appellate counsel's performance was (1) deficient; and (2) that he suffered prejudice from appellate counsel's deficiency. Tisdale, 594 S.E.2d at 167. Here, in his opposition to summary judgment, Petitioner argues that his appellate counsel was ineffective for failing to raise the issue of the trial judge abusing his discretion in various rulings (specifically referencing the chain of custody for evidence in the record); closing his case without filing a petition for rehearing and refusing to file any motions for appeal; failing to raise the issue of physical abuse by the police; failing to raise the issue that closing argument was improper because it contained statements from the prosecutor that were not supported by the evidence; failing to raise the issue that Petitioner had mental impairments so the fruits of his interrogation should be excluded; and failing to address the trial court's use of prior bad acts at his trial. See Petitioner's Response in Opposition to Summary Judgment, pp. 44-45. However, Petitioner has not provided evidence to support these underlying claims. The undersigned has addressed Petitioner's ineffective assistance of trial counsel claims relating to the majority of these issues and discussed in detail Petitioner's failure to show prejudice from any of these specific underlying allegations being raised, as follows¹⁵: failing to raise the issue of the trial judge abusing his discretion in various rulings (specifically referencing the chain of custody for evidence in the record)[see discussion, I(C), supra]; failing to raise issue that closing argument was improper because it contained statements from prosecutor that were not supported by the evidence [see discussion, I(D), supra]; failing to raise issues that Petitioner had mental impairments so fruits of interrogation should be excluded [see discussion, I (A), supra]; and failing to address the trial court's use of prior bad acts [see discussion, I(D) and I(E), supra].

15 While these issues were previously raised in the ineffective assistance of counsel context, the lack of prejudice in those findings also supports to lack of prejudice in this context.

With regard to appellate counsel failing to raise trial court error due to physical abuse by police, Petitioner has not presented any evidence to show prejudice. See (R.p. 743, n. 7). With regard to Petitioner's allegation that appellate counsel closed his case without filing a petition for rehearing and refusing to file any motions for appeal, the record shows that the Petitioner himself filed a pro se motion for rehearing on January 17, 2013, which was denied by the South Carolina Court of Appeals on February 22, 2013. See Court Docket Nos. 18-4 and 18-5. The Appellate Court specifically held, "[a]fter careful consideration of the petition for rehearing, the Court is unable to discover any material fact or principal of law has been either overlooked or disregarded, and hence, there is no basis for granting a rehearing." Id. Accordingly, Petitioner has not shown his counsel was deficit for failing to file such a motion, or any resulting prejudice from him not doing so. Finally, with regard to his allegation that Petitioner's appellate counsel refused to file any motions for appeal, Petitioner has also not presented any evidence of prejudice from such action or inaction.

____________________

Accordingly, with respect to all of Petitioner's ineffective assistance of trial and appellate counsel claims that were presented to the PCR court, that court found that the overwhelming evidence of Petitioner's guilt presented by the State at trial negated any claim that counsel's performance could have reasonably affected the outcome of the Petitioner's trial, and the Petitioner had failed to meet his burden of proof. The PCR court further stated that it could not discern any error in counsel's performance that would undermine the Court's confidence in the jury's verdict, that a reasonable jury could find the Petitioner guilty of the charged offense, and the Petitioner has failed to establish prejudice supporting the vacating of his convictions. Petitioner has failed to show reversible error in the State Court's rulings, and his exhausted ineffective assistance counsel claims are therefore without merit. Evans, 220 F.3d at 312 [Federal habeas relief will not be granted on a claim adjudicated on the merits by the state court unless it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding]; Williams v. Taylor, supra; Strickland v. Washington, supra.; Greene, 132 S.Ct. at 43 [observing that AEDPA's "standard of 'contrary to, or involv[ing] an unreasonable application of, clearly established Federal law' is difficult to meet, because its purpose] is to ensure that federal habeas relief functions as guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction"].

II.

With regard to Petitioner's remaining issues in Ground One and Grounds Two- Four, these issues were not properly pursued in state court and are procedurally barred. Although Petitioner initially listed these issues in his PCR proceedings, he failed to then properly pursue and exhaust them in his state court proceedings. The remaining issues in Ground One consist of ineffective assistance of counsel claims, Ground Two is prosecutorial misconduct, Ground Three is violation of due process, and Ground Four is abuse of trial judge. The PCR court ruled that Petitioner failed to present evidence on those issues and abandoned them, or that they were direct appeal issues which Petitioner had not pursued in his direct appeal.¹⁶

16 South Carolina case law provides that an APCR is not a substitute for direct appeal issues. See Simmons v. State, 215 S.E.2d 883, 885 (S.C. 1975)["It is uniformly held that an application for post-conviction relief is not a substitute for an appeal."]; Ashley v. State, 196 S.E.2d 501, 502 (S.C. 1973).

Because Petitioner did not properly raise and preserve these remaining issues in his state court proceedings, they are barred from further state collateral review; Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 562 n. 3 (1971); Wicker v. State, 425 S.E.2d 25 (S.C. 1992); Ingram v. State of S.C., No. 97-7557, 1998 WL 726757 at **1 (4th Cir. Oct. 16, 1998); Josey v. Rushton, No. 00-547, 2001 WL 34085199 at * 2 (D.S.C. March 15, 2001); Aice v. State, 409 S.E.2d 392, 393 (S.C. 1991)[post-conviction relief]; see also White v. Burtt, No. 06-906, 2007 WL 709001 at *1 & *8 (D.S.C. Mar. 5, 2007)(citing Pruitt v. State, 423 S.E.2d 127, 127-128 (S.C. 1992)[issue must be raised to and ruled on by the PCR judge in order to be preserved for review]); cf. Cudd v. Ozmint, No. 08-2421, 2009 WL 3157305 at * 3 (D.S.C. Sept. 25, 2009)[Finding that where Petitioner attempted to raise an issue in his PCR appeal, the issue was procedurally barred where the PCR court had not ruled on the issue and Petitioner's motion to alter or amend did not include any request for a ruling in regard to the issue]; Sullivan v. Padula, No. 11-2045, 2013 WL 876689 at * 6 (D.S.C. Mar. 8, 2013)[Argument not raised in PCR appeal is procedurally barred]; and as there are no current state remedies for Petitioner to pursue these issues, they are otherwise fully exhausted. Coleman v. Thompson, 501 U.S. at 735; Teague v. Lane, 489 U.S. 288, 297-298 (1989); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996) ["A claim that has not been presented to the highest state court nevertheless may be treated as exhausted if it is clear that the claim would be procedurally defaulted under state law if the petitioner attempted to raise it at this juncture."], cert. denied, 117 S.Ct. 854 (1997); Aice, 409 S.E.2d at 393; Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997) ["To satisfy the exhaustion requirement, a habeas Petitioner must fairly present his claim[s] to the state's highest court . . . the exhaustion requirement for claims not fairly presented to the state's highest court is technically met when exhaustion is unconditionally waived by the state...or when a state procedural rule would bar consideration if the claim[s] [were] later presented to the state court."], cert. denied, 522 U.S. 833 (1997); Ingram, 1998 WL 726757 at **1.

However, even though otherwise exhausted, because these issues were not properly pursued and exhausted by Petitioner in the state court, federal habeas review of these claims is now precluded absent a showing of cause and prejudice, or actual innocence. State v. Powers, 501 S.E.2d 116, 118 (S.C. 1998); Martinez v. Ryan, 566 U.S. 1, 9-10 (2012); Wainwright v. Sykes, 433 U.S. 72 (1977); Waye v. Murray, 884 F.2d 765, 766 (4th Cir. 1989), cert. denied, 492 U.S. 936 (1989).

In all cases in which a State prisoner has defaulted his Federal claims in State court pursuant to an independent and adequate State procedural rule, Federal Habeas review of the claim is barred unless the prisoner can 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. In his response, Petitioner argues as "cause" for failing to raise these claims, that his PCR counsel and/or his appellate counsel were ineffective for failing to raise them. The United States Supreme Court has held that "if the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the State . . . Ineffective assistance of counsel, then, is cause for procedural default." Murray, 477 U.S. at 488; see also Coleman v. Thompson, supra; McCleskey v. Zant, 499 U.S. 467, 494 (1991); Noble v. Barnett, 24 F.3d 582, 586, n.4 (4th Cir. 1994)["[C]onstitutionally ineffective assistance of counsel is cause per se in the procedural default context"]; Smith v. Dixon, 14 F.3d 956, 973 (4th Cir. 1994)(en banc). However for the reasons set forth below, Petitioner has failed to show the necessary "cause" to overcome the procedural bar.

PCR Counsel

With respect to Petitioner's PCR counsel, while ineffective assistance of counsel can constitute "cause" for a procedural default, it will only constitute "cause" if it amounts to an independent violation; Ortiz v. Stewart, 149 F.3d 923, 932 (9th Cir. 1998); Bonin v. Calderon, 77 F.3d 1155, 1159 (9th Cir. 1996); and ineffective assistance of PCR counsel (as opposed to trial or direct appeal counsel) does not amount to an independent constitutional violation, and ordinarily does not therefore constitute "cause" for a procedural default. Murray v. Giarratano, 492 U.S. 1-7, 13 (1989) [O'Connor, J., concurring] [ "[T]here is nothing in the Constitution or the precedents of [the Supreme] Court that requires a State provide counsel in postconviction proceedings. A postconviction proceeding is not part of the criminal process itself, but is instead a civil action designed to overturn a presumptively valid criminal judgment. Nothing in the Constitution requires the State to provide such proceedings,...nor does...the Constitution require [ ] the States to follow any particular federal model in those proceedings."]; Mackall v. Angelone, 131 F.3d 442, 447-449 (4th Cir. 1997); Ortiz, 149 F.3d at 932; Pollard v. Delo, 28 F.3d 887, 888 (8th Cir. 1994); Lamp v. State of Iowa, 122 F.3d 1100, 1104-1105 (8th Cir. 1997); Parkhurst v. Shillinger, 128 F.3d 1366, 1371 (10th Cir. 1997); Williams v. Chrans, 945 F.2d 926, 932 (7th Cir. 1992); Gilliam v. Simms, No. 97-14, 1998 WL 17041 at *6 (4th Cir. Jan. 13, 1998).

However, in Martinez v. Ryan, the Supreme Court carved out a "narrow exception" that modified

"the unqualified statement in Coleman that an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default." Martinez, 566 U.S. at ___, 132 S.Ct. at 1315. [F]or three reasons. First, the "right to the effective assistance of counsel at trial is a bedrock principle in our justice system . . . . Indeed, the right to counsel is the foundation for our adversary system." Id. at ___, 132 S.Ct. at 1317.

Second, ineffective assistance of counsel on direct appellate review could amount to "cause", excusing a defendant's failure to raise (and thus procedurally defaulting) a constitutional claim. Id. at ___, 132 S.Ct. at 1316, 1317. But States often have good reasons for initially reviewing claims of ineffective assistance of trial counsel during

state collateral proceedings rather than on direct appellate review. Id. at ___, 132 S.Ct. at 1317-1318. That is because review of such a claim normally requires a different attorney, because it often "depend[s] on evidence outside the trial record," and because efforts to expand the record on direct appeal may run afoul of "[a]bbreviated deadlines," depriving the new attorney of "adequate time . . . to investigate the ineffective-assistance claim." Id. at ___, 132 S.Ct. at 1318.

Third, where the State consequently channels initial review of this constitutional claim to collateral proceedings, a lawyer's failure to raise an ineffective assistance of counsel claim during initial-review collateral proceedings, could (were Coleman read broadly) deprive a defendant of any review of that claim at all. Martinez, supr a at ___, 132 S.Ct. at 1316.

We consequently 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." Martinez, supra at ___, 132 S.Ct. at 1318-1319, 1320-1321.

Trevino v. Thaler, 133 S.Ct. 1911, 1917-1918 (2013); see also Gray v. Pearson, 526 Fed. Appx. 331, 333 (4^th Cir. June 7, 2013)["The Supreme Court had previously held in Coleman that because a habeas petitioner has no constitutional right to counsel in state post-conviction proceedings, the ineffectiveness of post-conviction counsel cannot establish 'cause' to excuse a procedural default. Coleman, 501 U.S. at 757. The Court established an exception to that rule in Martinez."]

Therefore, because, under South Carolina law, a claim of ineffective assistance of trial or appellate counsel is raised in an APCR; cf. State v. Felder, 351 S.E.2d 852 (S.C. 1986); Bryant v. Reynolds, No. 12-1731, 2013 WL 4511242, at * 19 (D.S.C. Aug. 23, 2013); Gray, 2013 WL 2451083, at * 4, fn *; a petitioner's claim of ineffective assistance of PCR counsel as "cause"for his default may be considered under the revised standard of Martinez and Trevino. Even so, under the first requirement of the Martinez exception, the Petitioner must "demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the [petitioner] must demonstrate that the claim has some merit." Gray, 2013 WL 2451083 at * 2. Here, however, in Grounds Two, Three and Four, Petitioner does not raise any ineffective assistance of trial counsel claims. Rather, he raises the claims on the underlying merits. Therefore, the Martinez exception does not apply to these claims, and any alleged ineffectiveness of PCR counsel cannot be "cause" for a procedural default of these claims.

The remaining ineffective assistance of counsel issues in Ground One consist of: 1) counsel failed to properly object to impermissible burden shifting, which affected the right to a fair trial; 2) counsel failed to properly place question before the appellate court as to whether the instruction as a whole properly conveyed the law to the jury; and 3) whether it was reasonable [sic] likely that the jury acted in contravention of the reasonable doubt standard by the trial judge's instructions. While ineffective assistance of PCR counsel can constitute the necessary cause for these issues, as noted, under the first requirement of the Martinez exception, the Petitioner must "demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the [petitioner] must demonstrate that the claim has some merit." Gray, 526 Fed. Appx. at 333. Petitioner has failed to meet this requirement. Petitioner has not shown that the trial court gave an impermissible burden shifting instruction or that the jury instructions as a whole did not properly convey the law to the jury. (R.pp. 437-456). Accordingly, he has not shown a substantial issue of ineffective assistance of counsel on this basis. With regard to whether it was reasonably likely that the jury acted in contravention of the reasonable doubt standard in the jury instructions, Petitioner has presented no evidence that this occurred. Rather, a crucial assumption underlying our constitutional jury system is that jurors carefully follow instructions. Cf. United States v. Love, 134 F.3d 595, 603 (4th Cir.1998), cert. denied, 524 U.S. 932 (1998); Weeks v. Angelone, 528 U.S. 225, 234 (2000)["A jury is presumed to follow its instructions."]; United States v. Bryant, 655 F.3d 232, 252 (3d Cir. 2011)["[W]e generally presume that juries follow their instructions."]. Accordingly, Petitioner has failed to show that his trial counsel's failure to raise this issue is a substantial claim.

In sum, based upon the evidence and the record, Petitioner has failed to show counsel's performance was deficient or the necessary prejudice under Strickland. Accordingly, Petitioner has failed to establish that the remaining ineffective assistance of counsel claims in Ground One are substantial ones in order to be able to proceed on those claims. Gray, 526 Fed. Appx. at 333. Therefore, Petitioner has failed to show cause for his procedural default on these issues. Rodriguez v. Young, 906 F.2d 1153, 1159 (7th Cir. 1990), cert. denied, 498 U.S. 1035 (1991) ["Neither cause without prejudice nor prejudice without cause gets a defaulted claim into Federal Court."].

Direct Appeal Counsel

With regard to Petitioner's claim that ineffective assistance of appellate counsel was the "cause" for his failing to raise the remaining procedurally barred issues (Grounds Two, Three, and Four) in his direct appeal, "ineffective assistance of counsel on direct appellate review [can] amount to 'cause', excusing a defendant's failure to raise (and thus procedurally defaulting) a constitutional claim." Trevino, 133 S.E. at 1917. This claim is analyzed under the traditional Coleman v. Thompson analysis.

A review of the record shows that these issues were procedurally defaulted at the trial court level because South Carolina is an issue preservation state. I'On, LLC v. Town of Mt. Pleasant, 526 S.E.2d 716, 724-725 (S.C. 2000). Since these issues were not raised to the trial judge, they could not have been raised by appellate counsel on direct appeal, because they were not preserved for appellate review. State v. Powers, 501 S.E.2d at 118; State v. Varvil, 526 S.E.2d 248, 250 (S.C.Ct.App. 2000). Therefore, Petitioner has failed to show cause for his procedural default of these issues. Rodriguez v. Young, 906 F.2d 1153, 1159 (7th Cir. 1990), cert. denied, 498 U.S. 1035 (1991) ["Neither cause without prejudice nor prejudice without cause gets a defaulted claim into Federal Court."]. Furthermore, even if these were claims that appellate counsel could have raised, Petitioner has also failed to show the necessary prejudice. As previously discussed, the South Carolina Court of Appeals denied Petitioner's pro se petition for rehearing and specifically held that "[a]fter careful consideration of the petition for rehearing, the Court is unable to discover any material fact or principal of law has been either overlooked or disregarded, and hence, there is no basis for granting a rehearing." See Court Docket No. 18-5. In addition, this Court has addressed failing to raise the issue of the trial judge abusing his discretion in various rulings (specifically referencing the chain of custody for evidence in the record)[see discussion, I(C), supra]; failing to raise issue that closing argument was improper because it contained statements from prosecutor that were not supported by the evidence [see discussion, I(D), supra]; and failing to address the trial court's use of prior bad acts [see discussion, I(D) and I(E), supra], and found them to be without merit. With regard to any other allegations contained within these issues, Petitioner has not presented evidence of any prejudice that he has suffered. Accordingly, Petitioner has presented no evidence to show that the necessary prejudice on these claims to overcome his procedural default on these claims.

Finally, to the extent Petitioner is arguing that he is actually innocent, cognizable claims of "actual innocence" are extremely rare and must be based on "factual innocence not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998); see also Doe v. Menefee, 391 F.3d 147 (2d Cir. 2004). Petitioner has failed to present any new, reliable evidence of any type that was not presented in any of his prior court proceedings which supports his innocence on the criminal charges to which he was found guilty. See Schlup v. Delo, 513 U.S. 298, 324 (1995)[to present a credible claim of actual innocence, a petitioner must "support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial."]; Doe, 391 F.3d at 161 (quoting Schlup for the evidentiary standard required for a court to consider an actual innocence claim). Further, Petitioner has also failed to make any showing that a fundamental miscarriage of justice will occur if these claims are not considered. Wainwright v. Sykes, supra; Murray v. Carrier, 477 U.S. 478 (1986); Rodriguez, 906 F.2d at 1159 [a fundamental miscarriage of justice occurs only in extraordinary cases, "where a constitutional violation has probably resulted in the conviction of one who is actually innocent"](citing Murray v. Carrier, 477 U.S. at 496); Sawyer v. Whitley, 505 U.S. 333, 348 (1992); Bolender v. Singletary, 898 F.Supp. 876, 881 (S.D.Fla. 1995).

Therefore, these issues are procedurally barred from consideration by this Court.

III.

(PCR Court Rulings)

As previously noted, Petitioner has addressed a Ground Five in his response in opposition to summary judgment, which consists of numerous claims that the PCR court erred in its rulings. See Petitioner's Memorandum in Opposition to Summary Judgment, pp. 51(a) - 52. However, these claims concern alleged infirmities in Petitioner's state PCR proceeding, and as such are not a basis for federal habeas relief. See Bryant v. Maryland, 848 F.2d 492, 494 (4th Cir.1988) [claims of error occurring in a state post-conviction proceeding cannot serve as a basis for federal habeas relief]; Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir.1995), cert. denied, 518 U.S. 1-22(1996)["An attack on a state habeas proceeding does not entitle the petitioner to habeas relief...."]; Spradley v. Dugger, 825 F.2d 1566, 1568 (11th Cir.1987) (per curiam) ["Because claim (1) goes to issues unrelated to the cause of [the] petitioner's detention, it does not state a basis for habeas relief."].

Therefore, Petitioner has failed to state a viable claim for relief based on any alleged errors in his PCR proceeding. Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir.1998) [errors in state post-conviction proceedings are collateral to the conviction and sentence and do not give rise to a claim for federal habeas relief]; Wright v. Angelone, 151 F.3d 151, 159 (4th Cir.1998) [alleged defects in state post-conviction procedures are not cognizable in a federal habeas corpus action]; Nichols, 69 F.3d at 1275. This claim should be dismissed.

Conclusion

Based on the foregoing, it is recommended that the Respondent's motion for summary judgment be granted, and that the Petition be dismissed, with prejudice.

The parties are referred to the Notice Page attached hereto.

/s/_________

Bristow Marchant

United States Magistrate Judge October 3, 2018
Charleston, South Carolina

Notice of Right to File Objections to Report and Recommendation

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

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

Robin L. Blume, Clerk

United States District Court

Post Office Box 835

Charleston, South Carolina 29402

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