Opinion
CA 9:21-cv-01186-TLW-MHC
10-07-2021
Furman Eugene Taylor, Jr., Petitioner, v. Charles Williams, Warden, Respondent.
REPORT AND RECOMMENDATION
Molly H. Chery, United States Magistrate Judge.
Petitioner Furman Eugene Taylor, Jr., (“Petitioner”), a state prisoner proceeding pro se, petitions the court for a writ of habeas corpus under 28 U.S.C. 2254 (“Petition”). This matter is before the court pursuant to 28 U.S.C. 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 20, 21. On July 19, 2021, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's motion by February 4, 2021. ECF No. 22. Petitioner responded on August 24, 2021, ECF No. 27, Respondent replied on September 1, 2021, ECF No. 28, and Petitioner filed a supplemental response on September 24, 2021, ECF No. 30. This matter is now ripe for review.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 21, be granted and the Petition, ECF No. 1, dismissed.
I. BACKGROUND
The parties agree on the following facts. On May 19, 2012, two individuals broke into Ms. Renna Taylor's home in Greenville and stole multiple items. Two witnesses, T.R. and David Perry, observed a man and a woman exiting the home and leaving in blue and white Ford Aerostar van. Later that day, Ms. Taylor's property was sold at a pawnshop in Greenville. Based on records and surveillance footage from the pawnshop, the police determined the items had been sold by Amanda Caldwell. The police arrested Caldwell, who later identified Petitioner as the man with her during the break-in.
In his response, Petitioner correctly asserts the statement of facts in Respondent's brief incorrectly cites portions of Petitioner's first trial, which ended in a mistrial. ECF No. 27 at 1-6. Respondent corrects this error in its reply brief. ECF No. 28 at 1-6.
In April 2013, the Greenville County Grand Jury indicted Petitioner for burglary in the first degree and petit larceny. ECF No. 20-3 at 221-26. On February 11 and 14, 2014, Petitioner proceeded to trial before the Honorable R. Knox McMahon, Circuit Court Judge, represented by appointed counsel, Robert E. Iaunuario. ECF No. 20-1 at 3-197. Judge McMahon declared a mistrial after the jury failed to reach a unanimous decision. ECF No. 20-1 at 193-96. Petitioner was tried again on January 5-7, 2015, before the Honorable D. Garrison Hill, Circuit Court Judge, and was represented by Alex Kornfeld (“Trial Counsel”). ECF No. 20-1 at 198-20-2 at 15. The jury found Petitioner guilty of both charges and, based on Petitioner's prior criminal history, Judge Hill sentenced him to life in prison for first-degree burglary and 30 days for petit larceny. ECF No. 20-2 at 8-9, 14-15. Petitioner timely appealed and, on July 1, 2015, appellate defender Robert M. Pachak (“Appellate Counsel”) filed an Andersbrief on his behalf presenting the following issue:
Anders v. California, 386 U.S. 738 (1967) (providing a framework for counsel to withdraw if an appeal lacks merit).
Whether the trial court erred in denying the motion for a directed verdict to the charges of burglary in the first degree and petit larceny when the State failed to present any substantial evidence beyond a reasonable doubt that appellant participated in the crimes.ECF No. 20-2 at 17-29. Petitioner then filed a pro se brief in responseasserting the following additional issues:
1. Did the trial court err by not quashing/dismissing indictments since the prosecution took 304 days to present them to the Grand Jury without ever seeking any extension?
2. Was the accused denied a fair trial due to the excessive amount of time it [took] the prosecution to bring it to court?
3. Because of these undue delays was the accused prejudiced in his ability to obtain exculpatory evidence in his favor?
4. Did these delays result from bad faith actions by the prosecution?
5. Was the State's witness, Amanda Caldwell, coerced, threatened, or intimidated to testify as she did?
6. Does the statute S.C. Code Ann. 16-11-311(A)(2) contravene the well-established rule that evidence that an accused has committed other crimes is not admissible in the prosecution for the crime charged?
7. Is statute 16-11-311(A)(2) unconstitutional?
8. Did the accused receive a fair trial after evidence of prior convictions of the same “name” and “nature” as the crime charged presented and published to the jury as exhibits?
9. Was it improper and prejudicial to bring this evidence into play in the presence of the jury without any meaningful balancing test being performed first outside the presence of the jury?
10. When the defense gave a stipulation to the prior crimes did it not trigger an obligation for the court to eliminate the “name” and “nature” of the prior offenses from the case?
11. Was the accused prejudiced by a “mugshot” being produced and published to the jury as an exhibit?
12. When the “mugshot” was produced by Captain Jinny Moran of the records division was it not highly prejudicial when she stated, “I pulled the most recent photo?”
13. Would not a sophisticated juror have deduced by and/or inferred from such a statement as “most recent photo” when referring to the “mugshot” that the accused had a prior record?
14. Was it improper and prejudicial not to perform a meaningful balancing test prior to producing this evidence in the presence of the jury?
15. Was the video a duplicate?
16. Did the video include what was purported by the investigator who impounded it claimed?
17. Was the duplicate video unfair to admit in lieu of the original?
18. Why was the video(s) not produced at the first trial if they were so probative?
19. Was exculpatory evidence intentionally withheld by way of duplicate being produced rather than the original with enough elapsed time to prevent the original from being obtained by the accused?
20. Why was the video held for two weeks by the investigator?
21. Why did the investigator take other actions than the ones he described as proper to the chain of custody?
22. Why did the investigator take the video to his office prior to initiating the digital chain of custody?
23. Why would the proponent claim to the court that this video was an original when the investigator whom impounded it said it was a copy from when he first got it?
24. Why would the investigator claim the video(s) contained something they clearly did not?
25. Was it an abuse of discretion to allow Ms. Bennick to testify to authenticate the video without knowledge of what was on the video(s) or even how long Mashak had them before bringing them to property and evidence?
26. What would be the use of any testimony from Ms. Bennick other than to confuse the jury and/or try to obtain a conviction based on an improper basis?
27. Was it an abuse of discretion to admit a duplicate into evidence when it was clearly unfair to the accused in lieu of the original?
28. Did the prosecution elicit false testimony at trial knowingly?ECF No. 20-2 at 35-39. On October 16, 2015, the State responded to Petitioner's pro se brief with a motion to strike exhibits and related arguments not presented to the lower court. ECF No. 20-2 at 100-04. The Court of Appeals granted the State's motion, over Petitioner's pro se objection. ECF No. 20-2 at 112, and, on August 3, 2016, dismissed Petitioner's appeal, ECF No. 20-2 at 11314. The remittitur issued on August 19, 2016. ECF No. 20-2 at 115.
On October 3, 2016, Petitioner filed a pro se application for post-conviction relief (“PCR”) asserting the following grounds:
1. Newly Discovered Evidence a. “Affidavit of alibi witness.”
b. “Newly after [sic] discovered evidence that was discovered only after the notice of appeal was perfected and the appeals court, having exclusive control, would not grant leave for [Applicant] to have this evidence reviewed by the circuit court.”
2. Ineffective Assistance of Trial Counsel (pertaining to counsel during 2014 mistrial)
a. “Failed to formally request motion for speedy trial.”
b. Failed to obtain relevant evidence c. Failed to make appropriate objections
3. Ineffective Assistance of Trial Counsel (pertaining to the trial resulting in Applicant's conviction in January of 2015)
a. “Failed to request a pre-trial evidentiary hearing discover admissible/inadmissible evidence.”
b. Failed to make appropriate objections
4. Ineffective Assistance of Appellate Counsel a. “Failed to designate the entire record on appeal.”
b. “Failed to re-brief meritorious issues at the request of [Applicant].”
c. “Appellant counsel did not communicate in any meaningful manner with [Applicant].”ECF No. 20-3 at 194-95 (as summarized by the PCR court); see also ECF No. 20-2 at 123-125 (allegations as presented in Petitioner's application). On October 27, 2017, after briefing by the State, the Honorable Letitia H. Verdin, Circuit Court Judge, held an evidentiary hearing, at which Petitioner was represented by Susannah C. Ross (“PCR Counsel”). ECF No. 20-2 at 139-92. The court heard testimony from Petitioner, Petitioner's counsel from the 2014 mistrial, Trial Counsel, and Appellate Counsel. ECF No. 20-2 at 139-92. On July 31, 2018, the PCR court denied Petitioner's PCR application and dismissed it with prejudice. ECF No. 20-3 at 193-217. Petitioner filed a motion to alter or amend the judgment, ECF No. 20-3 at 218, which the PCR court denied, ECF No. 20-3 at 219.
PCR Counsel filed a timely notice of appeal and, on February 13, 2019, assistant appellate defender Lara M. Caudy filed a Johnson Petition for Writ of Certiorari on Petitioner's behalf and presented the following issue:
Johnson v. State, 364 S.E.2d 201 (S.C. 1988). A Johnson petition is the state PCR appeal analogue to an Anders brief.
Whether Petitioner's Sixth and Fourteenth Amendment rights to the effective assistance of counsel were violated when trial counsel failed to object to the admission of surveillance footage law enforcement obtained from a pawnshop pursuant to State v. Cheeseboro, 346 S.C. 526, 552 S.E.2d 300 (2001), where there was evidence an investigator had an opportunity to delete a portion of the footage which would have exonerated Petitioner, specifically, it would have shown the individual who committed the burglary with Amanda Caldwell, and where Petitioner was prejudiced because if trial counsel had objected on these grounds, there is a reasonable probability the trial judge would have excluded the footage or dismissed the indictments?ECF No. 20-5. Petitioner filed a pro se brief in response and asserted the following additional issues:
I. During pre-trial motions, the court's failure to perform any analysis on the requested 404(b) motion to exclude prior bad act(s) evidence did prejudice the Taylor. This prejudice flowed and was enhanced when the court introduced prior bad act(s) evidence without any analysis which became exponentially prejudicial to Taylor when it was argued in the closing statements of the prosecution.
II. The Petitioner asserts that his conviction was based on perjured testimony and the prosecution knew or should have known of the perjury.
III. [The PCR Court erred in not finding trial counsel ineffective for failing to object to the introduction of Petitioner's mugshot]
IV. The PCR Court went contrary to well established law where testimony and evidence presented at the hearing by petitioner [regarding the prosecution's failure to produce “the longer version” of the surveillance video] was overlooked or simply ignored. It's [sic] ruling is not supported by the facts that was presented.
V. [T]he prosecutor violated Brady by failing to disclose fully the change in testimony [discussed in the ground regarding perjured testimony].
VI. This court should also apply a cumulative prejudice analysis, see Kyles v. Whitley, 514 U.S. at 436.ECF No. 20-6. On January 26, 2021, the Court of Appeals denied certiorari. ECF No. 20-7. The remittitur issued on February 22, 2021. ECF No. 20-8.
II. STANDARDS OF REVIEW
A. Summary Judgment Standard
Summary judgment is appropriate if a party “shows there is no genuine dispute as to any issue of material fact” and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Under the framework established in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the party seeking summary judgment shoulders the initial burden of demonstrating to the Court that there is no genuine issue of material fact. Id. at 323. Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, must demonstrate that specific, material facts exist which give rise to a genuine issue. Id. at 324.
Under this standard, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Id. at 252. Likewise, conclusory or speculative allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. To survive summary judgment, the non-movant must provide evidence of every element essential to his action on which he will bear the burden of proving at a trial on the merits. Celotex Corp., 477 U.S. at 322.
Additionally, pro se filings are to be “liberally construed” and a pro se complaint, “however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). However, the requirement of liberal construction does not mean 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. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012); Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (“The ‘special judicial solicitude' with which a district court should view such pro se complaints does not transform the court into an advocate.”).
B. Federal Habeas Review under 28 U.S.C. 2254
Petitioner filed his Petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). ECF No. 1. Therefore, in considering Petitioner's claims, the Court's review is limited by the deferential standard of review set forth in 28 U.S.C. 2254(d). See Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under 2254(d):
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in the State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the State court proceeding.28 U.S.C. 2254(d); see also Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000) (explaining 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 contrary to, or involved an unreasonable application of, clearly established federal law, ” 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”).
A state court's decision is contrary to clearly established federal law if that court “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Evans, 220 F.3d at 312 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)). A state court decision unreasonably applies clearly established federal law if the state court “identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. (quoting Williams, 529 U.S. at 413).
Because “review under 2254(d)(1) focuses on what a state court knew and did, ” this Court measures the reasonableness of the state court's decision based on the information in the record before the state court. Valentino v. Clarke, 972 F.3d 560, 575 (4th Cir. 2020) (quoting Cullen v. Pinholster, 563 U.S. 170, 182 (2011)). “Likewise, 2254(d)(2) provides for a limited review of factual determinations in light of the evidence presented in the State court proceeding[;] [thus, ] [t]his backward-looking language similarly requires an examination of the state-court decision at the time it was made.” Id. (citation and internal quotation marks omitted).
Accordingly, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 410. Further, factual findings “made by a State court shall be presumed to be correct, ” and Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. 2254(e)(1).
C. Procedural Bar
Federal law establishes this Court's jurisdiction over habeas corpus petitions. 28 U.S.C. 2254. This statute permits relief when a person “is in custody in violation of the Constitution or laws or treaties of the United States[, ]” and requires that a petitioner present his claim to the state's highest court with authority to decide the issue before the federal court will consider the claim. Id. The separate but related theories of exhaustion and procedural default/bypass operate in a similar manner to require a habeas petitioner to first submit his claims for reliefto the state courts. A habeas corpus petition filed in this Court before a petitioner has appropriately exhausted available state-court remedies or after a petitioner has otherwise defaulted/bypassed seeking relief in the state courts will be dismissed absent unusual circumstances, as detailed below.
1. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies. See 28 U.S.C. 2254(b)-(c). The statute requires that, before seeking habeas corpus relief, a petitioner first must exhaust his state court remedies. 28 U.S.C. 2254(b)(1)(A). Stated plainly, in the interest of giving state courts the first opportunity to consider alleged constitutional errors in state proceedings, a 2254 petitioner is required to “exhaust” all state remedies before a federal district court can entertain his claims. Thus, a federal habeas court may consider only those issues that have been properly presented to the highest state courts with jurisdiction to decide them.
In South Carolina, a person in custody has two primary means of attacking the validity of his conviction: (1) through a direct appeal, or (2) by filing an application for PCR. State law requires that all grounds be stated in the direct appeal or PCR application. Rule 203 SCACR; S.C. Code Ann. 17-27-10, et seq.; S.C. Code Ann. 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976). If the PCR court fails to address a claim as is required by S.C. Code Ann. 1727-80, counsel for the applicant must make a motion to alter or amend the judgment pursuant to Rule 59(e), SCRCP. Failure to do so will generally result in the application of a procedural bar by the South Carolina Supreme Court. See Bostick v. Stevenson, 589 F.3d 160, 162-65 (4th Cir. 2009) (discussing procedural bar and noting the “general rule” in South Carolina is that where a party fails to file a Rule 59(e) motion, the argument is forfeited). Furthermore, strict time deadlines govern direct appeal and the filing of a PCR application in the South Carolina courts. A PCR application must be filed within one year of judgment, or if there is an appeal, within one year of the appellate court decision. S.C. Code Ann. 17-27-45. In South Carolina, a claim is not procedurally barred from review in this Court for failure to pursue review in the South Carolina Supreme Court after an adverse decision in the Court of Appeals. See Remedies in Criminal and Post-Conviction Relief Cases, 321 S.C. 563, 564, 471 S.E.2d 454 (S.C. 1990) (“[W]hen the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies.”).
2. Procedural Default/Bypass
When a federal habeas petitioner has failed to raise a claim at the appropriate time in state court and has no further means of bringing that issue before the state courts, the claim will be considered procedurally defaulted, and he will be procedurally barred from raising the issue in his federal habeas petition. Smith v. Murray, 477 U.S. 527, 533 (1986). This situation is sometimes referred to as procedural bypass, as the petitioner has “bypassed” his state remedies. In other words, procedural default/bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Id. Procedural default/bypass can occur at any level of the state proceedings, if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. See, e.g., Evans v. State, 611 S.E.2d 510, 515 (S.C. 2005) (noting an “issue or argument which is neither raised at PCR hearing nor ruled upon by the PCR court is procedurally barred from appellate review” (citation omitted)). Further, if a prisoner has failed to file a direct appeal or a PCR application and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the United States Supreme Court explains:
[state procedural rules promote] not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.Reed v. Ross, 468 U.S. 1, 10-11 (1984). If a federal habeas petitioner has procedurally defaulted his opportunity for relief in the state courts, the exhaustion requirement is technically met and the rules of procedural bar apply. See Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), overruled on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011); Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). Thus, where the state court has not had the opportunity to apply its own procedural bar, the federal court will nevertheless bar the claim where application of the bar is clear. Teague v. Lane, 489 U.S. 288, 297-98 (1989).
3. Cause and Actual Prejudice
Notwithstanding the foregoing, a federal court may consider claims that have not been presented to the highest South Carolina court with jurisdiction in very limited circumstances. See Granberry v. Greer, 481 U.S. 129, 131 (1987). Indeed, because the requirement of exhaustion is not jurisdictional, this Court may consider claims that have not been presented to the state's courts in limited circumstances in which a petitioner shows sufficient cause for failure to raise the claim and actual prejudice resulting from the failure, Coleman, 501 U.S. at 750, or by “prov[ing] that failure to consider the claims will result in a fundamental miscarriage of justice.” Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008).
A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor which hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Murray v. Carrier, 477 U.S. 478, 488-97 (1986). Absent a showing of cause, the court is not required to consider actual prejudice. Turner v. Jabe, 58 F.3d 924, 931 (4th Cir. 1995). However, if a petitioner demonstrates sufficient cause, he must also show actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual prejudice, the petitioner must demonstrate more than plain error. When a petitioner has failed to comply with state procedural requirements and cannot make the required showing of cause and prejudice, the federal courts generally decline to hear the claim. Id. at 496.
III. DISCUSSION
Petitioner raises the following grounds for relief in his Petition:
Ground One: Perjured testimony that violates U.S.C.A. Const. Amend. VI and XIV, as well as denied petitioner a fair trial.
Supporting Facts: (see) (From this point first trial transcript will be 1st Tt; Second trial transcript will be 2nd Tt; Appendix will be App.; and page will be pg.; and Compare will be /) Assistant Solicitor (Matthew L. Wallace; App. Pg. 240, Lines 14 thru 25/Inv. Brady Mashak; App. Pg. 422, Lines 16, 17, pg. 423, Lines 4, 5) Further (1st T.t. App. Pg. 124, Lines 3 thru 5, App. Pg. 125, Lines 12 thru 18, 21 thru 23/2nd Tt. App. Pg. 413, Lines 13 thru 17) (see Attached pgs.)
Ground Two: Prior bad acts evidence that violates U.S.C.A. Const. Amend(s). VI and XIV; and rules of evidence and/or a fair trial.
Supporting Facts: (1) No on-the-record required 404(b) analysis was performed prior (and/or ever) before this evidence being introduced/Published to the jury even though Defense counsel requested it. (see:) Appendix page 204, Lines 2 thru 5 (2) The Court of Appeals case of James precedent had already long before this hearing been superseded by the Supreme Court case of James. (see) Appendix page 204, Lines 19, 20 (3) The Court does not think the Rules of Evidence Applies to 16-11-311(a)(2) (see:) Appendix page 305, Lines 6 thru 8 (4) Statute 16-11-311(a)(2) and/or (see attached pages)
Ground Three: Mug shot photo; Denial of due process and equal protection of laws; Denial of a fair trial (Const. Amend. 14, 6).
Supporting Facts: (1) The State had no demonstrable need to introduce mug shot photo. (2) Particular attention was drawn to the implication of the photo and its origin (see) Appendix page 335, 336, 337
(3) indicated Petitioner had prior record (see) Appendix page 336, Lines 19 thru 23 (4) likely excited prejudice and encouraged jury to declare guilt on an improper basis (5) This identification procedure was suggestive and conducive to irreparable mistaken identification. (continued)
Ground Four: Cumulative error; Due Process and Equal Protection. Const.
Amend. VI and XIV; Denial of a fair trial.
Supporting Facts: Any of these issues would be enough to deny the petitioner of Due Process and Equal Protection of laws. But the totality of this issues did deny the petitioner of a fair trial. (see) Appendix page 899ECF No. 1 at 5-10. Respondent asserts Grounds One, Two, and Four are preserved to the extent they present the same issue addressed by the PCR Court, ECF No. 20 at 19, 30-31, 40, and that Ground Three was not addressed in the PCR Court's order or raised in Petitioner's motion to alter or amend the order and is, thus, procedurally defaulted, ECF No. 20 at 38.
Petitioner attached his copy of the state court record to his Petition. See ECF No. 1-1-1-3. This is almost identical to Respondent's appendix, except that Petitioner also includes (1) a handwritten motion to alter or amend related to his PCR action, but dated January 30, 2018, months before the PCR court's order of dismissal, that was mailed to the State and PCR Counsel, but was not filed, ECF No. 1-3 at 151-59; (2) an August 2, 2018 letter to PCR Counsel requesting she file a Rule 59(e) motion and stating issues he would like included in that motion, ECF No. 1-3 at 186-95; and (3) a February 22, 2021 letter from his PCR appellate counsel, ECF No. 1-3 at 254. The attachments do not include any new facts or argument in support of his 2254 Petition.
A. Ground One
In his response, Petitioner states Ground One is preserved because “[p]erjured testimony was brought up at trial and appeal” but was not presented on direct appeal. ECF No. 27 at 6. In support, Petitioner cites Trial Counsel's motion for a new trial after the verdict based on Amanda Caldwell's “unbelievable[], ” contradictory testimony and Petitioner's own PCR testimony about Trial Counsel's failure to properly impeach witnesses. See ECF No. 27 at 6 (citing ECF No. 20-2 at 10 (Trial Counsel's motion for a new trial “on the basis that . . . Amanda Caldwell's statements were so contradictory throughout the testimony that it was to the point of unbelievableness [sic], and that no reasonable jury could have come back with a verdict of not guilty”; ECF No. 20-2 at 155-58 (Petitioner's PCR testimony regarding Trial Counsel's failure to impeach witnesses)). Thus, the undersigned interprets Petitioner's claim in Ground One as mirroring the claim he presented in his PCR application-that Trial Counsel was ineffective for failing to properly impeach witnesses. To the extent Ground One asserts a separate freestanding perjury or related prosecutorial misconduct claim, that claim was not raised on direct appeal or addressed by the PCR court and is, therefore, procedurally defaulted and Petitioner has not argued cause to excuse the default.
In discussing Ground One in his response and supplemental response, Petitioner references violations of Brady v. Maryland, 373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959). ECF No. 27 at 7-8; ECF No. 30 at 6-10. The PCR court addressed a claim that the State violated Brady by failing to turn over a complete copy of the pawnshop surveillance video and denied that claim because Petitioner failed to present evidence that another version of the video existed. ECF No. 20-3 at 215-16. To the extent Petitioner raised other Brady or Napue claims at PCR, those claims were not addressed on the merits and Petitioner did not seek further review in his motion to alter or amend the PCR court's order. See ECF No. 20-3 at 218. Accordingly, those claims are now procedurally defaulted. See Marlar v. State, 653 S.E.2d 266, 267 (S.C. 2007) (finding PCR applicant must seek a ruling from PCR court in motion to alter or amend to preserve an unaddressed issue for appellate review).
A meritorious ineffective assistance of counsel claim must show two things: first, that counsel's performance was deficient and, second, that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-96 (1984).
As to the first prong, a court's evaluation of counsel's performance under this standard must be “highly deferential, ” so as to not “second-guess” the performance. Id. at 689. “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. (internal quotation marks and citation omitted); see also Bowie v. Branker, 512 F.3d 112, 119 n.8 (4th Cir. 2008); Fields v. Att'y Gen. of Md., 956 F.2d 1290, 1297-99 (4th Cir. 1992).
To establish the second prong of Strickland, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. A “reasonable probability” has been defined as “a probability sufficient to undermine confidence in the outcome.” Id.
While Strickland itself is a deferential standard, when both 2254(d) and Strickland apply, review is “doubly” deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011). “Thus, [t]he question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Valentino, 972 F.3d at 580 (citation and internal quotation marks omitted). Indeed, when 2254(d) applies, the question becomes “whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id. (citation and internal quotation marks omitted). Petitioner's claim in Ground One arises out of differences in the testimony of two prosecution witnesses-Investigator Brady Mashak and Petitioner's co-defendant, Amanda Caldwell-between the 2014 mistrial and the 2015 trial. Petitioner alleges Trial Counsel should have used the witnesses' prior inconsistent statements to impeach them. Petitioner described his claim Regarding Investigator Mashak's testimony at the PCR hearing:
And [Trial Counsel's] failure to impeach would have came in where, first of all, [Investigator Mashak] had made the statement at the first trial that David Perry had never seen a male suspect at all, period, and had been advised and testified to it at open trial. However, at the second trial, [Investigator Mashak] said that he had showed [David Perry] a photo lineup and to see if he could identify the person, insinuating that he did, in fact, see a male. And then they put Mr. Perry on the stand to testify to something he had said he had not seen. And at that point, I think they should have moved to impeach and took him off the stand because, obviously, his word was not credible.ECF No. 20-2 at 156. Petitioner also alleged Investigator Mashak had lied on the stand about a conversation he had with Amanda Caldwell's husband. ECF No. 20-2 at 159-60. Investigator Mashak testified Caldwell's husband told him Caldwell hung out with Petitioner and gave descriptions of Petitioner's vehicles, one of which matched the description of the van involved in the burglary. Petitioner asserted Investigator Mashak got that information while talking to Caldwell's husband about a separate crime and then convinced Caldwell to implicate Petitioner in this crime. ECF No. 20-2 at 158-62. He argued Trial Counsel should have used Mashak's testimony from the 2014 mistrial to impeach him at the 2015 trial and that the State should have corrected the false testimony. ECF No. 20-2 at 156-157. He also asserted Trial Counsel did not cross-examine Investigator Mashak about whether he brought up Petitioner's name before Caldwell and that Trial Counsel's cross-examination was not adversarial enough. ECF No. 20-2 at 161-62.
Regarding Caldwell's testimony, Petitioner identified numerous discrepancies he felt should have been used on cross-examination, including her account of what she witnessed or remembered, her description of the truck that pulled up to the house while she and Petitioner were inside, and her multiple, conflicting statements to law enforcement after her arrest. ECF No. 20-2 at 157-58. After she was arrested, Caldwell initially said she received the stolen items from a man named Tyler Whitman. ECF No. 20-2 at 158. Petitioner alleged Investigator Mashak then told Caldwell that was a lie and that it was Petitioner. ECF No. 20-2 at 158. Caldwell's second statement implicated Petitioner and a woman named Katherine Sasser. ECF No. 20-2 at 159. Petitioner stated Trial Counsel cross-examined Caldwell about these issues. ECF No. 20-2 at 15859. He later admitted Trial Counsel cross-examined most of the State's witnesses, including Caldwell and David Perry. ECF No. 20-2 at 177-78.
Trial Counsel testified he had been practicing law in South Carolina since 2009 and had devoted about 65% of his practice to criminal law. ECF No. 20-2 at 185. He explained his trial strategy for Petitioner's case was to show Petitioner's co-defendant, Amanda Caldwell “was not being truthful” and that she had committed the crime with a different man. ECF No. 20-2 at 189. Trial Counsel stated the surveillance video from the pawn shop was the most damning evidence, but “[w]ithout the video, there was nobody other than Amanda Caldwell that positively identifie[d]” Petitioner or connected him to the crime. ECF No. 20-2 at 190. He felt he had crossexamined Caldwell extensively about her prior statements and “she admitted that she had changed her story in the past.” ECF No. 20-2 at 190. In Trial Counsel's opinion, Caldwell did not come across as credible, but the surveillance video was too damning. ECF No. 20-2 at 190. Trial Counsel stated he also had the opportunity to cross-examine David Perry and Investigator Mashak. ECF No. 20-2 at 190-91. On cross-examination, Trial Counsel indicated he was familiar with the first trial and felt he had used witnesses' prior statements and the differences Petitioner identified to impeach them. ECF No. 20-2 at 195. Trial Counsel testified:
And [Petitioner] and I were talking during the trial a good bit, and I felt like I did impeach. But, sure, in retrospect, I feel like there's always things that you can do and do a better job if you have another chance at it, and this case was no different.ECF No. 20-2 at 195. He later explained that when cross-examining Caldwell, he did not specifically use the transcript of the 2014 trial and point to her previous testimony. ECF No. 20-2 at 197. However, he stated he did make it clear to the jury that she had lied and had prior inconsistent statements, and Caldwell herself admitted to lying or changing her story in response to his cross-examination. ECF No. 20-2 at 197.
After summarizing the evidentiary hearing testimony and stating the proper standard of review, the PCR court made the following findings of fact and conclusions of law regarding Trial Counsel's witness examination:
Third, Applicant alleged Trial Counsel #2 failed to properly impeach witnesses at trial. Counsel #2 testified he cross-examined Applicant's co-defendant extensively, and she admitted that she had changed her story in the past. He testified he did not think the co-defendant seemed to be credible in his opinion but that ultimately the
video was too damning to their case. He testified he had the opportunity to crossexamine several other witnesses in the case as well. Counsel #2 testified he thought he used the testimony of witnesses from Applicant's first trial to impeach them during the second trial. After a review of the record this Court finds Counsel #2 was not ineffective. This Court finds Counsel #2 extensively cross-examined the State's witnesses especially Applicant's co-defendant, Amanda Caldwell, and Investigator Mashak (Trial Tr. pg. 172-190)(pg. 219-227). Therefore, this Court finds Applicant has failed to prove the first prong of the Strickland test - that Counsel failed to render reasonably effective assistance under prevailing professional norms. Applicant failed to present compelling evidence that Counsel committed either errors or omissions in h[is] representation of Applicant. This Court also finds Applicant has failed to prove the second prong of Strickland - that he was prejudiced by Counsel's performance. This Court concludes Applicant has not met his burden of proving Counsel failed to render reasonably effective assistance. This allegation is denied and dismissed.ECF No. 20-3 at 211. Petitioner has not identified specific factual or legal errors in the PCR court's order, but reasserts the merits of his arguments. See ECF No. 1 at 5; ECF No. 27 at 6-8. Respondent asserts the PCR court's factual findings are supported by the record, and the court reasonably applied Strickland. ECF No. 20 at 23-30.
After a thorough review of the record, the undersigned finds Petitioner fails to meet his burden under Strickland and 2254(d). First, Petitioner fails to show Trial Counsel was deficient for failing to impeach Investigator Mashak using prior inconsistent statements because Investigator Mashak's testimony at the 2015 trial was not inconsistent with his testimony at the 2014 mistrial. At the 2014 mistrial, Investigator Mashak testified he spoke with David Perry, who told him he saw the female burglar, but not the male, leaving the house and that they were in a white and blue Ford Aerostar van. ECF No. 20-1 at 126. Investigator Mashak stated he did not show David Perry the photo lineup of male suspects and that neither David nor T.R. Perry was able to identify either a male or female suspect from the photo lineups because they had not seen their faces. ECF No. 20-1 at 127. At the 2015 trial, Investigator Mashak testified he spoke with David and T.R. Perry to see if they could identify Petitioner and Amanda Caldwell from the photo lineup. ECF No. 201 at 415. He stated neither witness could identify the suspects and both told him they did not see the burglars' faces. ECF No. 20-1 at 415. While Investigator Mashak offered a less-detailed account of his interviews with David and T.R. Perry at the 2015 trial, his testimony did not contradict his earlier account. Most importantly for Petitioner, in both trials, Investigator Mashak clearly stated neither witness identified Petitioner as the male burglar. Thus, on this issue at least, Trial Counsel had no prior inconsistent testimony with which to impeach Investigator Mashak.
At the 2014 mistrial, Investigator Mashak testified he spoke with Amanda Caldwell's exhusband while investigating a separate case. ECF No. 20-1 at 126. He stated he asked Caldwell's ex-husband where she might be and he said he did not know, but that she might be with Petitioner and gave a description of Petitioner and the cars he drove that matched the description from the burglary report. ECF No. 20-1 at 126-27. At the 2015 trial, Investigator Mashak did not mention his conversation with Caldwell's ex-husband on direct examination. On cross-examination, Investigator Mashak stated Caldwell's ex-husband told him Caldwell may be hanging out with Petitioner and described Petitioner's cars as a white Ford Explorer and a blue and white Aerostar van. ECF No. 20-1 at 420. Trial Counsel continued to question Investigator Mashak about those vehicle descriptions and impeached him with his own report stating Caldwell's ex-husband described both of Petitioner's cars as white. ECF No. 20-1 at 420-23.
Trial Counsel also questioned Investigator Mashak about when he took over the investigation, when he questioned Caldwell's ex-husband, and when Caldwell gave her various statements. ECF No. 20-1 at 416-18. In addition, Trial Counsel elicited more details about Investigator Mashak's interviews with Caldwell, including their unusual location and that they were not recorded. ECF No. 20-1 at 417-18. This line of questioning also highlighted potential credibility issues.
The record also supports the PCR court's finding that Trial Counsel acted reasonably in his cross-examination of Amanda Caldwell. During direct examination in the 2015 trial, Caldwell testified her first statement to the police was a “boldface lie.” ECF No. 20-1 at 366. She stated she tried to talk herself out of trouble and implicated two other individuals in the burglary-Tyler Whitman and a woman named Katherine, whose last name she claimed not to know. ECF No. 201 at 366. Caldwell testified that Investigator Mashak did not believe her statement and took her back to jail. ECF No. 20-1 at 366-67. She testified she called Investigator Mashak a few days later and told him she was ready to tell him the truth. ECF No. 20-1 at 367. She indicated this second statement to law enforcement, which implicated Petitioner and herself, accurately described what happened. ECF No. 20-1 at 368-69.
On cross-examination, Trial Counsel immediately began identifying the ways in which Caldwell had lied and changed her story since the beginning of the investigation. See ECF No. 201 at 396-70. He elicited testimony about false statements regarding her address, her actual relationship with Katherine and her previous comments that they looked alike, and her past employment at Platinum Plus. ECF No. 20-1 at 369-371. He then harped on Caldwell's statements to police accusing Tyler Whitman of this crime and of stealing a gun from her husband-a gun that she later sold at a pawnshop. ECF No. 20-1 at 372. Trial Counsel elicited testimony suggesting Caldwell only changed her story and named Petitioner after Petitioner refused to bail her out of jail. ECF No. 20-1 at 372-73. Trial Counsel used a previous contradictory statement to impeach Caldwell's testimony that she could not see Petitioner in the house during the burglary while she was in the van. ECF No. 20-1 at 374-75. He also highlighted discrepancies in Caldwell's statements and testimony regarding whether she entered the bedroom of the house, the color of the Perry's truck, and where she and Petitioner went after the burglary. ECF No. 20-1 at 376-78. And Trial Counsel elicited testimony suggesting Caldwell was actually receiving a reduced sentence in exchange for her testimony against Petitioner, despite her statement to the contrary. ECF No. 201 at 379-81. Trial Counsel ended the cross-examination with the following exchange:
Q. ...do you agree or disagree that you've told several different stories?
A. I agree that I've told several lies. As far as whenever I told the true story, it has stayed the same.
Q. Yes. And even today, your story has changed some; correct?
A. Not that - - I mean, what do you mean?
Q. Well, before, you said that you saw what was in the house. Now, you're saying that you only heard what was - -
A. Are you talking about from my last testimony?
Q. Yes.
A. Yes. It was changed a little bit, but not dramatically and not anything that is huge. There's not been a huge difference in my testimony then and today, no, sir.
Q. Why don't you tell us who was really with you that day?
A. It was me and Furman Taylor.
Q. And that's your testimony?
A. That is my testimony because that is the truth.ECF No. 20-1 at 386-87.
Thus, the record supports the PCR court's determination that Trial Counsel extensively cross-examined Caldwell. Further, while Trial Counsel may not have impeached Caldwell with a physical copy of her previous testimony, his questions ensured the jury heard how often she had changed her story about various aspects of the crime in both official statements to law enforcement and prior testimony. Trial Counsel's cross-examination was directly in line with his stated trial tactic of discrediting Caldwell. “Simply because counsel's questions did not lead the jury to discount witness testimony does not render counsel's performance unreasonable.” Blair v. United States, No. PJM 08-0505, 2016 WL 6569064, at *6 (D. Md. Nov. 4, 2016); see also Jackson v. United States, 473 F.Supp.2d 640, 646 (D. Md. 2006) (“failure of the strategy to produce an acquittal does not mean that it was incompetent”). And the fact that Trial Counsel's cross examination of Caldwell elicited virtually the same information Petitioner asserts should have been presented supports the PCR court's determination that any deficiency on counsel's part did not undermine confidence in the verdict and thus did not prejudice Petitioner. See Strickland, 466 U.S. at 694 (“The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”).
Accordingly, Petitioner fails to show the PCR court's decision was unreasonable in either fact or law, and the undersigned recommends granting Respondent's motion for summary judgment as to Ground One.
B. Ground Two
In Ground Two, Petitioner contends the admission of two of his prior burglary convictions violated the Sixth and Fourteenth Amendments of the United States Constitution and the rules of evidence. ECF No. 1 at 7. Respondent asserts “[b]ecause the issue presented in state court was purely one of the misapplication of state evidentiary law, [Petitioner's] present allegation fails to present a claim on which federal habeas corpus relief may be granted.” ECF No. 20 at 30-31. However, Petitioner raised this claim at PCR as one of ineffective assistance of Trial and Appellate counsel. See ECF No. 20-2 at 153-55, 167-68. And those allegations were addressed on the merits by the PCR court. See ECF No. 20-3 at 208-09, 214-15. The undersigned liberally construes the Petition as presenting these two preserved claims. To the extent Petitioner is challenging the trial court's evidentiary ruling or the constitutionality of S.C. Code Ann. 16-11-311(A)(2), or any other related claim, those issues were not properly presented to the state courts and are not preserved for review.
In South Carolina, a person is guilty of burglary in the first degree if he “enters a dwelling without consent and with intent to commit a crime, ” and either (1) he or another participant is armed with a deadly weapon, appears to be armed with a knife or firearm, causes physical injury, or otherwise uses or threatens use of a dangerous instrument; (2) he “has a prior record of two or more convictions for burglary or housebreaking or a combination of both, ” or (3) the crime occurred at night. S.C. Code Ann. 16-11-311(A)(1)-(3). In Petitioner's case, the State relied on the second aggravating factor-that Petitioner had two or more prior burglary convictions-and at trial the court allowed the State to introduce evidence to prove this statutory element of the crime. See ECF No. 20-1 at 207, 306-07.
Trial Counsel made a pre-trial motion to exclude this evidence as improper evidence of prior bad acts under Rule 404(b) of the South Carolina Rules of Evidence, which the court denied. ECF No. 20-1 at 206-09. Trial Counsel then stipulated to the authenticity of the prior indictments to avoid the admission of additional evidence related to those crimes. ECF No. 20-1 at 306. Even so, he re-asserted his objection for the record when the State moved the indictments into evidence and requested the court give the jury a limiting instruction. ECF No. 20-1 at 306-09. The court agreed and gave the following charge to the jury:
Before we have the next witness, I need to tell y'all that the parties have stipulated to certain evidence. When I told you at the beginning about your obligation to determine the facts of the case, I told you there were two sources of evidence,
there's sworn witness testimony and there are exhibits.
There's, also, another type that sometimes occurs in trials, and that is when the parties stipulate to a fact. That is, they agree the fact exists, and is true, and there's no need for further proof to - - or finding by you that it is a fact.
So the parties in this case have entered into such a stipulation. And that stipulation is that the Defendant in this case, Mr. Furman Taylor, has two prior convictions for burglary. These convictions were obtained in 1993. And I will further instruct you that you're not to consider these prior convictions for any reason other than determining whether the State has met its burden of proof as to the crime of burglary first that Mr. Taylor is accused of in this trial.
Sometimes, evidence can be used for one purpose and not another, and this is one of those times. The evidence about any prior convictions may only be used to determine whether the State has met its burden of proof as to an element of the crime here. So you're not to consider the prior convictions as evidence that the Defendant committed the crimes for which he's currently on trial, nor should you consider the convictions as character evidence, or conclude that because he was convicted of a similar crime previously that he's likely to have committed these offenses for which he is currently on trial.
You're to consider these prior convictions simply as part of the elements the State must prove in order to make out a charge of first degree burglary. And I'll tell you about the law of first degree burglary at the conclusion of the trial when I instruct you on the law.ECF No. 20-1 at 315-17. At Trial Counsel's request, the court re-iterated this limiting instruction during his charge on the law. ECF No. 20-1 at 501-02. Trial Counsel also renewed his motion prior to closing arguments, ECF No. 20-1 at 465, and after the verdict, ECF No. 20-2 at 10-11. In addition, he successfully argued that the State could only describe the prior convictions as burglary convictions and not inform the jury they were convictions for burglary in the first degree. ECF No. 20-1 at 311-12.
At the PCR evidentiary hearing, Petitioner admitted Trial Counsel moved to exclude the prior bad acts evidence and argued he should have offered to stipulate to one of the other two statutory aggravating factors-that a gun was involved or the crime occurred at night-and argued the constitutionality of the burglary statute. ECF No. 20-2 at 153-55. In addition, Petitioner asserted Trial Counsel further prejudiced his case by arguing the burglary statute improperly prevented a judge from weighing probative value against prejudicial effect under evidence rule 403. ECF No. 20-2 at 154-55. Petitioner also argued Appellate Counsel should have briefed this issue. ECF No. 20-2 at 167-68.
Regarding his motion to exclude the prior burglary convictions, Trial Counsel testified:
I tried to at least . . . narrow the issue on how they were going to charge him with the burglary first.... And they probably smartly said, we'll just go forward on the two previous burglaries.
And so my argument then was it is an element of the offense of burglary first at that point. But - - so the fact that it's an element of the offense, what that does to a court is it keeps them from doing an analysis, an evidentiary analysis that they would normally do, a 608 or a 403, to say, hey, is this unduly prejudicial? And the cases I cited, . . . Old Chief vs. United States, and . . . State vs. Broadnax, which said, look, if there are previous robberies, don't bring those robberies in because it would it would be unduly prejudicial.
But in this case, the judge had to follow the statute. He can't say, hey, I like your argument. Even if he did, which he didn't say that, but even if he did, he can't say we're not going to follow the statute. I thought that that would be an issue for appeal where a judge - - a Court of Appeals could say you can't legislate prejudicial prior bad acts into a law and force the judge to follow it or otherwise handcuff the judge, because, in my opinion as a defense attorney, I feel like that's what those type of -- those types of statutes do.ECF No. 20-2 at 188-89.
Appellate Counsel testified he had been practicing law as an appellate attorney for about 28 years. ECF No. 20-2 at 198. He stated he reviewed the trial transcript and decided to submit an Anders brief because he determined “the case really didn't have that much merit as far as issues went.” ECF No. 20-2 at 199. Appellate Counsel stated he had not reviewed Petitioner's case in two years but testified he generally would not brief objections made during trial that he did not think had any merit. ECF No. 20-2 at 200, 201. When asked specifically why he did not brief this issue, Appellate Counsel responded: “Because basically, if it's a second or third burglary charge, the State is allowed, from what I know, to bring in the prior burglaries so they can enhance the future burglary - - or the current burglary.” ECF No. 20-2 at 201.
The PCR court considered this issue on the merits and decided as follows:
First, Applicant alleged Trial Counsel #2 did not exclude his prior bad acts. Counsel #2 testified he made a motion to exclude Applicant's prior bad acts. He testified in terms of his motion to exclude Applicant's prior bad acts, he tried to narrow the issue on how the State was going to charge Applicant with burglary first. Counsel #2 testified the way the indictment was written the charge could have been because it happened at night, a weapon was involved, or because of the two previous burglaries Applicant had. Counsel #2 testified the State went forward on the two previous burglaries and his argument then was that it was an element of the offense of burglary first. He testified because of the fact that it was an element of the offense it kept the court from doing an analysis they would normally do under Rule 608 or Rule 403 of the rules of evidence to see if the mention of prior burglaries were unduly prejudicial. He testified he argued against them being introduced if there were previous robberies and that they should not be brought in because it would be unduly prejudicial. Counsel #2 testified in Applicant's case the judge had to follow the statute. He testified he thought the Applicant's previous burglaries being introduced would be an issue for appeal where the Court of Appeals could say you cannot legislate prejudicial prior bad acts into a law and force the judge to follow it or otherwise handcuff the judge. After a review of the record, this Court finds Counsel #2 was not ineffective. This Court finds while ultimately unsuccessful, Counsel #2 made a motion to exclude Applicant's prior bad acts and diligently sought to protect Applicant's rights. (Trial Tr. Pg. 9-12) (pg. 109-115). Ultimately, the trial court found that the prior burglaries were elements of the crime that Applicant was charged with. This Court sees no argument Counsel #2 could have advanced that would have circumvented this. Therefore, this Court finds Applicant has failed to prove the first prong of the Strickland test - that Counsel failed to render reasonably effective assistance under prevailing professional norms. Applicant failed to present compelling evidence that Counsel committed either errors or omissions in [his] representation of Applicant. This Court also finds Applicant has failed to prove the second prong of Strickland - that he was prejudiced by Counsel's performance. This Court concludes Applicant has not met his burden of proving Counsel failed to render reasonably effective assistance. This allegation is denied and dismissed.ECF No. 20-3 at 208-09. And, regarding Petitioner's claim that Appellate Counsel was ineffective for failing to raise this issue on appeal, the PCR court found:
Appellate Counsel testified regarding the trial judge letting in Applicant's prior convictions. He testified that the State was allowed to bring in prior burglaries to enhance the current charge so he did not brief that issue....Appellate Counsel
testified if he thinks there is some serious merit in correspondence from clients he tries to respond to them. After a review of the record, this Court finds Applicant has failed to establish the requisite deficiency of appellate counsel or prejudice entitling him to relief. First, this Court finds Applicant has failed to show that appellate counsel's performance was deficient, where there is no standard requiring appellate counsel to brief every possible meritorious issue and Appellate counsel testified to his reasoning on why he did not brief the issues Applicant argues about. Second, this Court finds Applicant has failed to establish prejudice, as there is no reasonable likelihood that he would have prevailed on appeal.... This Court concludes Applicant has not met his burden of proving Appellate Counsel failed to render reasonably effective assistance. This allegation is denied and dismissed.ECF No. 20-3 at 214-15.
Petitioner argues Trial Counsel should have stipulated to the prior convictions in a way such that the jury did not learn the nature of those crimes-i.e., that they were also burglaries- and that this issue warranted briefing by Appellate Counsel. Petitioner apparently relies on the United States Supreme Court's decision in Old Chief v. United States, 519 U.S. 172 (1997), and the South Carolina Supreme Court's decision in State v. James, 583 S.E.2d 745 (S.C. 2003). In Old Chief, the Court held “a district court abuses its discretion if it spurns . . . an offer [to concede the fact of a prior conviction] and admits the full record of a prior judgment, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction.” 519 U.S. at 174. There, the defendant was charged as a felon in possession of a firearm. Id. Under the applicable statute, the Government had to prove only that the defendant had been previously “‘convicted of a crime punishable by imprisonment for a term exceeding one year.'” Id. at 174-75 (quoting 18 U.S.C. 922(g)(1)). Thus, the Court found the jury did not need to know the specific nature of the earlier crime, only that it fell within the class of crimes contemplated by the statute. Id. at 190-91.
In James, the South Carolina Supreme Court reversed a Court of Appeals decision upholding the admission of seven prior burglary convictions to prove first-degree burglary. 583 S.E.2d at 749-50. The court reasoned the admission of more prior burglary convictions than the two required to prove the statutory element was unduly prejudicial. Id. at 750.
Notably, the South Carolina Supreme Court had already addressed this issue one year before James and long before Petitioner's trial. In State v. Benton, 526 S.E.2d 228 (S.C. 2000), the court found (1) South Carolina's burglary statute is constitutional; (2) “[f]or purposes of an element of first degree burglary under 16-11-311(A)(2), ” “the probative value of admitting the defendant's prior burglary and/or housebreaking convictions is not outweighed by its prejudicial effect”; and (3) “[t]o ensure a defendant is not convicted on an improper basis while allowing the State to prove the elements of first degree burglary, the trial court should limit evidence to the prior burglary and/or housebreaking convictions, ” not admit “particular information regarding the prior crimes, ” and “should, on request, instruct the jury on the limited purpose for which the prior crime evidence can be considered.” Id. at 230-31. The court expressly considered Old Chief in making these findings. Id. at 230.
This was the state of the law in South Carolina at the time of Petitioner's trial. Even so, Trial Counsel made every effort to exclude the prior convictions and, even though he was unsuccessful, he ensured the trial court complied with Benton by not admitting unnecessary information about the crimes (that they were also first-degree burglaries) and by giving a limiting instruction. And, because the trial court did comply with Benton, Appellate Counsel could have reasonably decided the issue lacked merit and did not warrant briefing. Accordingly, the PCR court reasonably determined that neither Trial nor Appellate Counsel performed deficiently in this regard.
In addition, “[a] jury is presumed to follow its instructions, ” Weeks v. Angelone, 528 U.S. 225, 234 (2000), and Petitioner has shown no reason to doubt the jury followed the trial court's limiting instruction or that this issue would have prevailed on appeal, see Lawrence v. Branker, 517 F.3d 700, 709 (4th Cir. 2008) (“appellate counsel was only ineffective is his failure . . . fell below an objective standard of reasonableness and, but for that failure, [the petitioner] would have prevailed in his appeal”). Thus, the PCR court reasonably found Petitioner failed to show prejudice on either claim.
For these reasons, the undersigned recommends granting summary judgment as to Ground Two.
C. Ground Three
In Ground Three, Petitioner challenges the admission of a mug shot photo and alleges violations of the Sixth and Fourteenth Amendments, due process, equal protection, and his right to a fair trial. ECF No. 1 at 8. Respondent asserts Ground Three is procedurally defaulted because it was not addressed by the PCR court or raised in Petitioner's motion to alter or amend the PCR court's order. ECF No. 20 at 38. Petitioner raised this claim in his PCR application as a claim of ineffective assistance of Trial Counsel for failure “to object to the admission of the mug shot photo (most recent).” ECF No. 20-2 at 124. During the evidentiary hearing, Petitioner testified “there should have been an objection to” the witness's description of the photo as the “most recent” because “[t]hat led the jury to believe that [he] had a criminal background.” ECF No. 20-2 at 165-66. Although he was testifying about Appellate Counsel's errors at the time, he clarified “I feel that that was also something that I would have spoke about to ineffective assistance in this particular instance as far as the second trial.” ECF No. 20-2 at 166.
The PCR court referenced this testimony in its final order, ECF No. 20-3 at 199 (summarizing Petitioner's hearing testimony and stating “Applicant testified an objection should have been made when a witness brought up a recent mug shot photo of his during trial which led the jury to believe he had a criminal background”), but did not address the issue on the merits. Petitioner's one-page motion to alter or amend expressed general disagreement with the PCR court's findings of fact and conclusions of law and argued that each of his allegations amounted to undue prejudice. ECF No. 20-3 at 218. The motion did not identify any claims the PCR court failed to address. ECF No. 20-3 at 218. Petitioner presented this issue again in his pro se response to the Johnson Petition for a Writ of Certiorari. ECF No. 20-6 at 18.
In South Carolina, the PCR court must make specific findings of fact and conclusions of law for each issue presented. S.C. Code Ann. 17-27-80. If the PCR court fails to address an issue raised by the petitioner, appellate review of that issue is precluded unless the petitioner files a motion to alter or amend the judgment requesting specific findings of fact and conclusions of law pursuant to Rule 59(e) of the South Carolina Rules of Procedure. Humbert v. State, 548 S.E.2d 862, 865 (2001). If the petitioner files a Rule 59(e) motion and requests that the PCR court make specific findings of fact and conclusions of law on an issue not addressed in the order, then that unaddressed issue is preserved for appellate review. See Marlar v. State, 653 S.E.2d 266, 267 (S.C. 2007) (finding PCR applicant must seek a ruling from PCR court in motion to alter or amend to preserve an unaddressed issue for appellate review). Here, because Petitioner's Rule 59(e) motion did not specifically seek review of this issue, the issue was not preserved for appellate review. Petitioner presented related claims in his pro se direct appeal memorandum. ECF No. 20 2 at 36-37 (issues 11-14). However, because Trial Counsel had not objected to the photograph at trial, those claims would not have been preserved and thus not considered on the merits by the Court of Appeals.
The Fourth Circuit has noted that, prior to the South Carolina Supreme Court's decision in Marlar, South Carolina courts did not consistently apply a procedural bar based on a PCR applicant's failure to file a Rule 59(e) motion. See Bostick v. Stevenson, 589 F.3d 160, 164-65 (4th Cir. 2009). Here, the PCR court issued its order in July 2018, long after the South Carolina Supreme Court decided Marlar. Therefore, Petitioner's failure to raise this issue in his Rule 59(e) motion bars his claim from review. Marlar v. Warden, Tyger River Correctional Inst., 432 Fed.Appx. 182, 186-88 (4th Cir. May 25, 2011).
“Federal habeas review of a state prisoner's claims that are procedurally defaulted under independent and adequate state procedural rules is barred unless the prisoner can show cause for the default and demonstrate actual prejudice as a result of the alleged violation of federal law, or prove that failure to consider the claims will result in a fundamental miscarriage of justice.” McCarver v. Lee, 221 F.3d 583, 588 (4th Cir. 2000) (citing Coleman, 501 U.S. at 750). Petitioner has not advanced an argument for excusing this default. Accordingly, the undersigned recommends granting summary judgment as to Ground Three.
D. Ground Four
In Ground Four, Petitioner argues the cumulative effect of the errors alleged in Grounds One through Three was a denial of due process, equal protection, and a fair trial. ECF No. 1 at 10. Respondent admits this ground is preserved for review and asserts the state courts' denial was not an unreasonable application of clearly established federal law or based on an unreasonable interpretation of the facts. ECF No. 20 at 40.
Ineffective assistance of counsel claims must be reviewed individually rather than collectively. Fisher v. Angelone, 163 F.3d 835, 852 (4th Cir. 1998). Moreover, “legitimate cumulative-error analysis evaluates only the effect of matters actually determined to be constitutional error, not the cumulative effect of all of counsel's actions deemed deficient.” Id. at 852 n.9; see also Moore v. Reynolds, 153 F.3d 1086, 1113 (10th Cir. 1998) (stating that cumulative error analysis applies where there are two or more actual errors; it does not apply to the cumulative effect of non-errors). Because the PCR court concluded Trial and Appellate Counsel did not provide ineffective assistance of counsel, a cumulative error analysis was inapplicable under federal law. See United States v. Russell, 34 Fed.Appx. 927, 927 (4th Cir. 2002) (“Fisher . . . held that it is not appropriate to consider the cumulative effect of attorney error when the individual claims of ineffective assistance do not violate the defendant's constitutional rights.”). Accordingly, the undersigned recommends granting summary judgement as to Ground Four.
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Respondent's Motion for Summary Judgment (ECF No. 21) be GRANTED and the Petition be DISMISSED with prejudice.
The parties are directed to the next page for their rights to file objections to this recommendation.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).