Opinion
C. A. 5:22-2702-MGL-KDW
06-28-2023
Shondre Williams, Petitioner, v. Warden of Tyger River, Respondent.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
Shondre Williams (“Petitioner”) is a state prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 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. 27, 28. On January 20, 2023, 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. ECF No. 29. After receiving two extensions, ECF Nos. 33, 36, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment on April 6, 2023. ECF No. 38. Respondent filed a Reply on April 13, 2023, ECF No. 39, and Petitioner filed a Sur Reply on May 8, 2023. ECF No. 41.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 28, be granted, and this Petition be denied.
I. Background
Petitioner is currently incarcerated in the Tyger River Correctional Institution of the South Carolina Department of Corrections. ECF No. 1 at 1. He was indicted at the February 2013 term of the Spartanburg County Grand Jury on possession with intent to distribute cocaine base and trafficking cocaine. App. 258-59, 261-62. Petitioner proceeded to a jury trial on February 25-27, 2013, before the Honorable J. Derham Cole, Circuit Court Judge. App. 26 et. seq. Petitioner was represented by J. Falkner Wilkes, Esquire, and Solicitor J. Hayes Holiday, Esquire, represented the State. App. 26. The jury found Petitioner guilty of possession of cocaine base and trafficking cocaine. App. 245-46. Judge Cole sentenced Petitioner to 25-years imprisonment. App. 247-48.
Citations to “App.” refer to the Appendix for Petitioner's trial transcript and Post-Conviction Relief (“PCR”) Proceedings and the page numbers on the top of the page. That appendix is available at ECF Nos. 27-1 to 27-13 in this habeas matter.
Petitioner appealed his convictions and sentences to the South Carolina Court of Appeals (“Court of Appeals”). App. 265-78. On appeal, Petitioner was represented by Attorney Carlyle R. Cromer and Appellate Defender Robert M. Dudek, Esq., of the South Carolina Commission on Indigent Defense, Division of Appellate Defense. Id. Attorneys Cromer and Dudek filed a Final Brief of Appellant on March 31, 2014, raising the following issues:
I. Did the circuit court err in refusing to suppress the search warrant for Appellant's home when the officer who completed the accompanying affidavit did so without personal knowledge of the facts giving rise to probable cause?
II. Did the circuit court err in refusing to suppress the drug evidence when the State failed to demonstrate a complete chain of custody by failing to explain date discrepancies?App. 268. The State filed a Final Brief of Respondent on March 28, 2014. App. 280-99. On October 29, 2014, the Court of Appeals filed an unpublished decision dismissing Petitioner's appeal. App. 3-5. Petitioner filed a petition for rehearing on November 12, 2014, and his petition was denied on December 17, 2014. App. 6-18, 20. Petitioner filed a petition for writ of certiorari on January 16, 2015, which the South Carolina Supreme Court denied on June 18, 2015. ECF Nos. 27-4, 27-5.
III. Procedural History
Petitioner filed an Application for Post-Conviction Relief (“PCR”) on August 5, 2015 (2015-CP-42-3439). App. 303-12. Petitioner asserted he was being held in custody unlawfully because of ineffective assistance of counsel and denial of due process and equal protection. App. 305-308. Petitioner filed an amended PCR application on October 14, 2016, and a second amended PCR application on October 10, 2017. App. 320-23; ECF No. 27-7. A PCR motion hearing convened on November 13, 2017, before the Honorable G. Thomas Cooper, Jr., Circuit Court Judge. App. 324-411. Petitioner was present and represented by Attorney William G. Yarborough, III, and Attorney Valerie Giovanoli appeared on behalf of the State. See id. Petitioner and his trial counsel J. Faulkner Wilkes appeared and testified at the hearing. Id. The PCR court denied and dismissed Petitioner's PCR Application with prejudice in an order filed on March 5, 2018, making the following findings of fact and conclusions of law:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This Court has had the opportunity to review the record in its entirety and has heard the testimony at the post-conviction relief hearing. This Court has had the opportunity to observe the witnesses presented at the hearing, and has weighed their testimony and credibility accordingly. Below are the findings of fact and conclusions of law as required pursuant to S.C. Code Ann. § 17-27-80 (2017). Applicant has failed to prove by a preponderance of the evidence that Counsel was deficient or that he was prejudiced by any deficiency. A Post-Conviction-Relief application is not a venue for questioning each and every decision of trial counsel in hindsight. Rather, the Applicant must demonstrate by a preponderance of the evidence that trial counsel was deficient and that the deficiency prejudiced the outcome of his trial. Applicant has failed to do so.
I. Ineffective Assistance of Counsel
Applicant alleges he received ineffective assistance of counsel. In a PCR action, “[t]he burden of proof is on the Applicant to prove his allegations by a preponderance of the evidence.” Frasier v. State, 351 S.C. 385, 389, 570 S.E.2d 172, 174 (2002) (citing Rule 71.1(e), SCRCP). Where ineffective assistance of counsel is alleged as a ground for relief, the Applicant must prove that “counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064 (1984); Butler v. State, 286 S.C. 441, 334 S.E.2d 813 (1985).
The proper measure of performance is whether the attorney provided representation within the range of competence required in criminal cases. Courts presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgement. Butler, Id. The Applicant must overcome this presumption to receive relief. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989). First, the Applicant must prove that counsel's performance was deficient. Under this prong, attorney performance is measured by its “reasonableness under professional norms.” Cherry, 300 S.C. at 117 (citing Strickland). Second, counsel's deficient performance must have prejudiced the Applicant such that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Cherry, 300 S.C. at 117-18.
A. Juror Strike Issue
Although Applicant made an allegation that Counsel was ineffective for failing to object to the trial court's abuse of discretion in denying Applicant from striking a juror from the jury, Applicant has failed to meet his burden of proving this claim. Applicant presented no evidence or argument on this point. A reading of the record shows no abuse of discretion by the judge or ineffectiveness by Counsel for failing to object to the denial of a juror strike. Having failed to meet his burden of proof on this allegation, the claim is denied and dismissed with prejudice.
B. Failure to argue and present evidence regarding probable cause
Applicant alleged in his original PCR application that Counsel failed to sufficiently argue or present evidence to show the magistrate judge lacked a substantial basis upon which to find probable cause. Applicant did not present any evidence to support or prove this claim. Furthermore, the record is clear Counsel made an attempt during the pre-trial motion to suppress based on an alleged defect in the probable cause affidavit that was used in securing the magistrate judge's signature for a search warrant. The issue was briefed on appeal and affirmed by the
South Carolina Court of Appeals. This Court finds Applicant has failed to meet his burden of proof on this claim and therefore it is denied and dismissed with prejudice.
C. Perjured testimony and fabricated evidence
In his original application, Applicant made an allegation that Counsel allowed him to be convicted based on perjured testimony and fabricated evidence. However, Applicant offered no evidence with regard to these allegations. Therefore, Applicant has failed to meet his burden of proof and this claim is denied and dismissed with prejudice.
D. Burden shifting statements in closing
Applicant alleges the Solicitor made improper burden shifting. Specifically, Applicant claims page 316 of the trial transcript shows the Solicitor explaining it is the defendant's burden to prove a lack of predisposition to commit the crime if he raises the affirmative defense of entrapment. Applicant claims that because he is not compelled to testify or present evidence, the Solicitor's comments were improper and objectionable.
“One pleading entrapment has the burden of showing that he was induced, tricked or incited to commit a crime, which he would not otherwise have committed.” State v. Brown, 362 S.C. 258, 262-63, 607 S.E.2d 93, 95 (Ct. App. 2004) (citing State v. Johnson, 295 S.C. 215, 217, 367 S.E.2d 700, 701 : Babb v. State, 240 S.C. 235, 237, 125 S.E.2d 467, 467 (1962), cert. denied, 375 U.S. 979, 84 S.Ct. 502, 11 L.Ed.2d 425 (1964) (Entrapment is an affirmative defense to the crime charged and imposes upon the accused the burden of showing that he was induced to commit the act for which he is being prosecuted.”). (Emphasis added). While comments from the State placing any burden on the defendant are generally impermissible, certain affirmative defenses do in fact place a burden on the defendant to prove or disprove certain facts. Entrapment is an affirmative defense that places upon the defendant the burden of proving both elements - inducement and lack of predisposition. Id. The Solicitor's comments were a correct statement of the law. The Solicitor was only referring to the elements of the affirmative defense raised by Applicant, not the burden of proof the State was required to meet in proving the elements of the crime. Therefore, the comments by the Solicitor in closing were not objectionable and Counsel could not have been deficient by not objecting. There is no evidence in the record to suggest that but for the alleged error, there is a reasonable probability the outcome of the trial would have been different. This allegation is denied and dismissed with prejudice.
E. Failure to request “independent decision” jury instruction
In his original application, Applicant alleged Counsel was ineffective for failing to request that the trial judge “inform the jury of their fundamental right to stand by their independent decision of guilt or innocence of the Applicant irrespective of the majority's decision being to the contrary.” However, Applicant presented no evidence in support of this allegation. Applicant has failed to meet his burden of proving Counsel was deficient or that he was prejudiced by any such deficiency. This allegation is denied and dismissed.
F. Erroneous advice regarding parole/early release
Applicant alleged Counsel was ineffective for giving him erroneous advice that he would serve 85% of “any sentence” that he would receive for trafficking of cocaine base. This Court finds Counsel's testimony on this issue credible and Applicant's testimony not credible. It is counterintuitive to believe Counsel advised Applicant in a manner inconsistent with his general practice for the past 30 years. It also strains credulity to believe had Applicant been aware he was facing a day for day sentence, he would have pled guilty.
Furthermore, Counsel credibly testified Applicant wanted a plea offer of ten years, but did not receive an offer better than a range of 10-15 years. According to Applicant's claims, had he known he would be required to serve day for day the 10-15 year offer - that he rejected under the belief he would serve 85% of it - he would have accepted the offer and pled guilty. Applicant has failed to meet his burden of proving deficiency or prejudice regarding this issue. Therefore, this claim is denied and dismissed with prejudice.
G. Failure to admit phone recordings at trial
In his amended application, Applicant alleges Counsel was ineffective for failing to admit and publish for the jury the undercover phone call recordings of the conversations between informant and Applicant. This Court notes Applicant did not offer the actual recordings as evidence, but there was some testimony regarding their contents. Counsel's testimony was credible on the issue. It was Counsel's opinion that the phone recordings were more damaging than helpful to Applicant's case. Counsel further benefited from the State's failure to present them to the jury by using that failure to demonstrate to the jury that the State was not showing their entire hand while inferring the tapes were beneficial to the defense's theory of entrapment, specifically the inducement element. Furthermore, the record demonstrates that Counsel did not present any evidence and therefore preserved final closing argument. Presenting recordings Counsel believed to be damaging would have also waived his right to final closing argument.
This Court refuses to substitute its judgment for that of a well-seasoned trial attorney who made the decision not to play the undercover phone calls for the jury. Without having heard the recordings, this Court can only conclude Counsel made a sound decision based on his professional judgment.
Applicant did not express his desire to have the tapes admitted at trial, but rather expressed concern that he had not heard the recordings until a week prior to his PCR hearing. Despite the allegation pled in the amended application, Applicant actually testified he would have pled guilty if he had heard the undercover phone recordings prior to trial. However, this Court finds Counsel's testimony on the issue more credible than Applicant's. Counsel testified Applicant did not hear all (or possibly any) of the undercover calls, but that Counsel had listened to them and discussed the contents with Applicant. Counsel conceded Applicant had a right to listen to them, but Applicant indicated to Counsel he was comfortable with their discussion and did not request or insist on hearing the recordings. This Court finds Applicant has failed to meet his burden of proving any deficiency with regard to the handling of the undercover phone calls. The record also demonstrates that absent any alleged error, the outcome of the trial would not have been different. This allegation is denied and dismissed with prejudice.
H. Prior bad acts
Applicant has made a number of allegations revolving around Counsel failing to act at various times during the trial where there was implication of prior bad acts by Applicant. Counsel's failure to make any conceivable objection is not deficient per se. Objections are calculated to achieve a tactical end in keeping with a party's theory of the case. Counsel, on the whole, reasonably calculated his objections to achieve the stated end. In any trial, decisions of Counsel can and will be questioned in hindsight. However, tactical trial decisions that do not serve to acquit the defendant do not, by definition, prove deficiency. In this matter, Counsel's performance was adequate and clearly within the standards of professional conduct. The Court will specifically address the transcript pages wherein Applicant claims Counsel should have objected:
1. Trial transcript page 234, line 9 thru page 235, line 4:
Court finds Applicant has failed to meet his burden of proving Counsel was deficient or that he was prejudiced by any deficiency. Applicant has failed to prove, either by presentation of evidence or from support of the record, that Counsel was ineffective for failing to object to the testimony elicited by the State from Informant regarding communications on the undercover DVD during the sale of cocaine to Applicant. The Solicitor was requesting explanation for the street language used during the sale. The video showed Applicant complaining about a prior batch of drugs he purchased from Informant, complaining that they were not cooked the way he wanted. In the hearing, Applicant argued this was evidence of a
prior bad act to which Counsel should have objected. Applicant also argued Counsel should have requested any prior bad acts be excluded under Rule 403, SCRE.
The objection would have been futile and the evidence would most likely have been admitted despite a Rule 403 analysis. Once a defendant has opened the door asserting an entrapment defense, the State is then entitled to present evidence to rebut the defense's claim of lack of predisposition. Evidence of prior dealings between Informant and Applicant directly rebut the claim Applicant lacked a predisposition to commit the crime absent inducement by the State. And of all the ways the State could prove predisposition (i.e. evidence of Applicant's three prior PWID crack convictions and prior distribution of crack conviction), prior dealings between this particular informant and Applicant have a greater amount of probative value on the issue that cannot hardly be outweighed by the prejudice to Applicant. Where entrapment is the only viable defense, as was the case here according to Counsel's credible testimony, prejudicial evidence of predisposition is a necessary risk to asserting it. Here, it was Applicant's decision to proceed to trial instead of pleading guilty. On Applicant's behalf, Counsel put forward the best defense possible - entrapment. I find no deficiency or prejudice.
2. Trial transcript page 314 thru 315:
Applicant has failed to prove, either by presentation of evidence or from support of the record, that Counsel was ineffective for failing to object to the Solicitor's closing remarks that Applicant was trying to sell crack - a cooked version of cocaine. This Court finds these closing remarks appropriate and unobjectionable. The Solicitor was drawing reasonable inferences from the evidence presented in support of the allegations made against Applicant - that he was trafficking and possessing crack with the intent to distribute. Applicant was found in possession of cocaine in excess of 250 grams. The State not only presented the drugs as evidence, but also the scale, money counter, and $4,000 cash found in Applicant's possession as well as testimony from the informant who sold him the cocaine. It is a reasonable inference to draw that Applicant was in fact buying and selling crack cocaine. Furthermore, any objection from Counsel on this point was not reasonably likely to affect the outcome of the trial.
Having failed to meet his burden of proof, the allegation against Counsel for failing to object to the Solicitor's closing argument is denied and dismissed with prejudice.
CONCLUSION
Based on all the foregoing, this Court finds and concludes Applicant has not established any violations that would require this Court to grant his application. This Court finds Applicant has failed to prove any deficiencies on the part of
Counsel and further, Applicant has failed to prove prejudice from any alleged deficiencies in Counsel's representation of him. Therefore, as Applicant has failed to meet his burden of proof in this post-conviction relief action, his application is denied and dismissed with prejudice.App. 411-30. Petitioner filed a Rule 59(e) motion to alter or amend judgment which the court denied on February 11, 2019. App. 432-39.
Petitioner appealed the denial of his PCR application and Attorney Elizabeth Franklin-Best represented Petitioner on appeal. ECF No. 27-8. Attorney Best filed a Petition for Writ of Certiorari in the South Carolina Supreme Court on May 24, 2019, presenting the following issues:
I. Did trial counsel render ineffective assistance of counsel when he failed to object to the Solicitor's questioning of the informant about prior drug dealings when it was not offered to prove Petitioner had a predisposition to purchase drugs but was merely an attempt to introduce improper character evidence?
II. Did trial counsel render ineffective assistance of counsel when he failed to object to the Solicitor's repeated improper, burden-shifting statements during closing arguments, because the statements were legally inaccurate, and diluted the State's burden of proving Petitioner guilty beyond a reasonable doubt?
III. Did trial counsel render ineffective assistance of counsel when he failed to provide all of the necessary discovery to him prior to trial, including telephone calls recorded between Petitioner and the confidential informant, and when Petitioner testified that he had heard [sic] the inculpatory phone calls, he would not have insisted on his right to trial, but would have pleaded guilty?
IV. Did trial counsel render ineffective assistance of counsel when he failed to inform Petitioner that, should he be found guilty, he would have to serve a “day-for-day” sentence, and not just 85% of his sentence?Id. at 1. On November 12, 2019, the South Carolina Supreme Court transferred the petition to the Court of Appeals. ECF No. 27-10. The Court of Appeals filed an order on March 21, 2022, denying the petition for a writ of certiorari. ECF No. 27-11. The remittitur was issued on April 22, 2022. ECF No. 27-12.
III. Discussion
A. Federal Habeas Issues
Petitioner raises the following issues in his Federal Petition for a Writ of Habeas Corpus, quoted verbatim:
Ground One: The State Court erred in failing to suppress the search warrant where the officer lacked personal knowledge of fact giving probable cause
Ground Two: The State court erred in refusing to suppress the drug evidence when the State failed to demonstrate a complete chain of custody
Ground Three: State Court erred in failing to find trial counsel ineffective for failing to object to the Solicitor's repeated burden shifting statements during closing argument that diluted the State's burden of proof.
Ground Four: State Court erred in failing to find counsel ineffective for failing to provide Petitioner with all the discovery, recorded phone calls that would assisted Petitioner with making and informed decision to plead or go to trial
Ground Five: The PCR Court erred in failing to find trial counsel rendered ineffective assistance when he failed to object to the Solicitor's questioning of the Informant about prior drug dealings when it was not offered to prove Petitioner had a predisposition to purchase drugs but was merely an attempt to introduce improper character evidence.
Ground Six: Trial Counsel rendered ineffective assistance of counsel when counsel failed motion to suppress and or object to the recordings: drug evidence and testimony of the alleged Informant (CI).
Ground Seven: Petitioner submits trial counsel was ineffective for failing to investigate and properly research all applicable laws regarding Petitioner's case.ECF No. 1 at 5-10, 17-27 (Errors in original).
B. Standard for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319, 323 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
C. Habeas Corpus Standard of Review
1. Generally
Because Petitioner filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), review of his claims is governed by 28 U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320, 336 (1997); Breard v. Pruett, 134 F.3d 615, 618 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas corpus relief unless the underlying state adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d)(1)(2); see Williams v. Taylor, 529 U.S. 362 (2000). “[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.” Id. at 411.
a. Deference to State Court Decisions
Courts afford deference to state courts' resolutions of the habeas claims of state prisoners. See Bell v. Cone, 543 U.S. 447, 455 (2005). The Supreme Court has provided further guidance regarding the deference due to state-court decisions. Harrington v. Richter, 562 U.S. 86 (2011); Cullen v. Pinholster, 131 S.Ct. 1388 (2011). To obtain habeas relief from a federal court, “a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. “[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102. The Court further stated: “If this standard is difficult to meet, that is because it was meant to be.” Id.; see Richardson v. Branker, 668 F.3d 128, 137-44 (4th Cir. 2012) (quoting Harrington extensively and reversing district court's grant of writ based on his ineffective assistance of counsel claims).
In interpreting § 2254(d)(1) and discussing the federal courts' role in reviewing legal determinations made by state courts, the United States Supreme Court held as follows:
[A] federal court may grant a writ of habeas corpus if the relevant state-court decision was either (1) “contrary to . . . [clearly] established Federal law as determined by the Supreme Court of the United States,” or (2) “involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States.Williams v. Taylor, 529 U.S. 362, 404-405 (2000) (quoting from § 2254(d)(1)). “Clearly established Federal law in § 2254(d)(1) refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams, 529 U.S. at 412). In considering whether a state-court decision is “contrary to” clearly established federal law, the federal court may not grant relief unless the state court arrived at a conclusion opposite to that reached by the Supreme Court on a legal question, the state court decided the case differently than the Court has on facts that are materially indistinguishable, or if the state court “identifie[d] the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applie[d] that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 405-13. The “unreasonable application” portion of § 2254(d)(1) “requires the state court decision to be more than incorrect or erroneous[,]” it “must be objectively unreasonable,” which is a higher threshold. Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal citation omitted).
Section 2254(e)(1) requires the federal court give a presumption of correctness to statecourt factual determinations and provides that a petitioner can only rebut such a presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). Accordingly, a habeas petitioner is entitled to relief under § 2254(d)(2), only if he can prove, by clear and convincing evidence, that the state court unreasonably determined the facts in light of the evidence presented in state court.
b. Ineffective Assistance of Counsel
The Sixth Amendment provides a criminal defendant the right to effective assistance of counsel in a criminal trial and first appeal of right. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court announced a two-part test for adjudicating ineffective assistance of counsel claims. First, a petitioner must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 687. Second, the petitioner must show that this deficiency prejudiced the defense. Id. at 694. The United States Supreme Court's 2011 decisions cited previously elaborate on the interplay between Strickland and § 2254, noting the standards are “both highly deferential,” and “when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (internal quotation marks omitted); Pinholster, 131 S.Ct. at 1403. When a petitioner raises in a § 2254 habeas petition an ineffective-assistance-of-counsel claim that was denied on the merits by a state court, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable[,]” not “whether defense counsel's performance fell below Strickland's standard.” Harrington, 562 U.S. at 101. “For purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an incorrect application of federal law.'” Id. (citing Williams, 529 U.S. at 410) (emphasis in original). “A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.” Id.
2. 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. 28 U.S.C. § 2254(a)-(b). The separate but related theories of exhaustion and procedural bypass operate in a similar manner to require that a habeas petitioner first submit his claims for relief to the state courts. A habeas corpus petition filed in this court before the petitioner has appropriately exhausted available state-court remedies or has otherwise bypassed seeking relief in the state courts will be dismissed absent unusual circumstances detailed below.
a. Exhaustion
Section 2254 contains the requirement of exhausting state-court remedies and provides as follows:
(b) (1) 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 unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B) (i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
The statute requires that, before seeking habeas corpus relief, the petitioner first must exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997). Thus, a federal 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 (S.C. 1976). Strict time deadlines govern direct appeals and the filing of a PCR in the South Carolina courts. A PCR 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.
Furthermore, in filing a petition for habeas relief in the federal court, a petitioner may present only those issues that were presented to the South Carolina Supreme Court or the South Carolina Court of Appeals. See State v. McKennedy, 559 S.E.2d 850, 853 (S.C. 2002) (holding “that in all appeals from criminal convictions or post-conviction relief matters, a litigant shall not be required to petition for rehearing and certiorari following an adverse decision of the Court of Appeals in order to be deemed to have exhausted all available state remedies respecting a claim of error.”) (quoting In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief, 471 S.E.2d 454, 454 (S.C. 1990)).
b. Procedural Bypass
Procedural bypass, sometimes referred to as procedural bar or procedural default, is the doctrine applied when a petitioner who seeks habeas corpus relief as to an issue failed to raise that issue at the appropriate time in state court and has no further means of bringing that issue before the state courts. In such a situation, the person has bypassed his state remedies and, as such, is procedurally barred from raising the issue in his federal habeas petition. Procedural bypass of a constitutional claim in earlier state proceedings forecloses consideration by the federal courts. See Smith v. Murray, 477 U.S. 527, 533 (1986). Bypass can occur at any level of the state proceedings if the state has procedural rules that bar its courts from considering claims not raised in a timely fashion.
The South Carolina Supreme Court will refuse to consider claims raised in a second appeal that could have been raised at an earlier time. Further, if a prisoner has failed to file a direct appeal or a PCR and the deadlines for filing have passed, he is barred from proceeding in state court. If the state courts have applied a procedural bar to a claim because of an earlier default in the state courts, the federal court honors that bar. As the 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. Reedv. Ross, 468 U.S. 1, 10-11 (1984).
However, if a federal habeas petitioner can show both (1) “‘cause' for noncompliance with the state rule[,]” and (2) “‘actual prejudice resulting from the alleged constitutional violation[,]'” the federal court may consider the claim. Murray, 477 U.S. at 533 (quoting Wainwright v. Sykes, 433 U.S. 72, 84 (1977)). 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. Murray v. Carrier, 477 U.S. 478, 496 (1986).
If a federal habeas petitioner has failed to raise a claim in state court and is precluded by state rules from returning to state court to raise the issue, he has procedurally bypassed his opportunity for relief in the state courts and in federal court. A federal court is barred from considering the filed claim (absent a showing of cause and actual prejudice). In such an instance, the exhaustion requirement is technically met, and the rules of procedural bar apply. See Teague v. Lane, 489 U.S. 288, 297-98 (1989); Matthews, 105 F.3d at 915 (citing Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); George v. Angelone, 100 F.3d 353, 363 (4th Cir. 1996).
3. Cause and Actual Prejudice
Because the requirement of exhaustion is not jurisdictional, this court may consider claims that have not been presented to the South Carolina Supreme Court 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 that a “fundamental miscarriage of justice” has occurred. Murray, 477 U.S. at 495-96. A petitioner may prove cause if he can demonstrate ineffective assistance of counsel relating to the default, show an external factor that hindered compliance with the state procedural rule, or demonstrate the novelty of a particular claim. Id. 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.
IV. Analysis
A. Procedurally-Barred Grounds
Respondent argues Petitioner's Grounds Six and Seven are procedurally barred because Petitioner failed to raise these claims to the PCR court. ECF No. 27 at 28-29. In Ground Six, Petitioner claims trial counsel rendered ineffective assistance of counsel when counsel failed to move to suppress or object to the recordings of the drug transaction between Petitioner and the confidential informant. ECF No. 1 at 24-25. In Ground Seven, Petitioner submits trial counsel was ineffective for failing to investigate and properly research all applicable laws regarding Petitioner's case. Id. at 25-27.
The undersigned finds Petitioner's Grounds Six and Seven claims were not ruled upon by the PCR court and therefore are not preserved for review. See, e.g., Coleman v. Thompson, 501 U.S. 722 (1991) (holding issue not properly raised to state's highest court, and procedurally impossible to raise there now, is procedurally barred from review in federal habeas); Pruitt v. State, 423 S.E.2d 127 (S.C. 1992) (holding issue must be raised to and ruled on by the PCR judge in order to be preserved for review). Consequently, federal habeas review of the Petitioner's Ground Six and Seven claims are barred absent a showing of cause and actual prejudice, or actual innocence. Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
B. Cause and Prejudice
Petitioner has not shown sufficient cause and prejudice to excuse the default of his Ground Six and Seven claims. 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.
The existence of cause must ordinarily turn on whether the prisoner can show some objective factor external to the defense impeded counsel's or his efforts to comply with the state's procedural rule. Murray, 477 U.S. at 488. Petitioner fails to articulate cause for procedurally defaulting his Ground Six and Seven claims. Petitioner had a trial, a PCR hearing, and a PCR appeal in which to raise these issues. However, he failed to raise them, raise them properly, or preserve the issues for habeas review. Petitioner cannot establish cause and prejudice because he has abandoned the opportunities to preserve these issues.
Petitioner cites to the holding in Martinez v. Ryan, 566 U.S. 1 (2012), and argues the procedural bar applied to Grounds Six and Seven should be lifted due to his PCR counsel's ineffectiveness. ECF No. 38 at 11-12. In Martinez, the Court held that “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.”Martinez, 566 U.S. at 9. Martinez states
[W]hen a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim in two circumstances. The first is where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initialreview collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington. To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.566 U.S. at 14.
Petitioner contends Martinez should excuse the default of these claims as “each claim is an underlying ‘substantial' claim on ineffective assistance of counsel . . . and thus presents a federal question, regarding a federal constitutional guarantee protected under the Bill of Rights.” ECF No. 38 at 12. In support of his Ground Six claim, Petitioner alleges his trial counsel was ineffective when he failed to object to, or move to suppress, the recordings and testimony of the confidential informant because the informant failed to complete a working agreement contract with the sheriff's department. Id. at 21. Petitioner claims counsel should have moved to suppress this evidence from the confidential informant because it was tainted. Id. at 22. In support of his Ground Seven claim Petitioner contends his trial counsel was ineffective for failing to investigate and properly research all applicable laws regarding Petitioner's case. Id. at 23. Petitioner argues counsel should have moved pursuant to South Carolina Code §17-30-110(A) to suppress the phone recordings of Petitioner and the confidential informant because the communications were unlawfully intercepted. Id. at 24-25. Petitioner's conclusory arguments are void of any factual support and are therefore insufficient to demonstrate his ineffective assistance of counsel claims have some merit. See Martinez, 566 U.S. at 14. Accordingly, Petitioner cannot establish cause and prejudice. See 28 U.S.C. § 2254; Rodriguez v. Young, 906 F.2d 1153, 1159 (7th Cir. 1990).
In the alternative, Petitioner must show a miscarriage of justice. To demonstrate a miscarriage of justice, Petitioner must show he is actually innocent. Actual innocence is defined as factual innocence, not legal innocence. Bousley v. United States, 523 U.S. 614, 622 (1998). To pass through the actual-innocence gateway, a petitioner's case must be “truly extraordinary.” Schlup v. Delo, 513 U.S. 298, 327 (1995). The court's review of the record does not support a showing of actual innocence. Therefore, the procedural bar applies to Petitioner's Ground Six and Seven claims.
C. Merits
1. Ground One
In Ground One, Petitioner claims the court erred in failing to suppress the search warrant when the officer lacked personal knowledge of the facts giving rise to probable cause. ECF No. 1 at 5.
In his direct appeal, Petitioner contends testimony presented at the pre-trial hearing established the officer at the scene called the officer preparing the warrant affidavit after 1:04 p.m., which was the time the officer noted in his recording, and the magistrate signed the warrant at 1:05 p.m. App. 273-74. Petitioner claims the officer preparing the warrant would have then had 60 seconds to complete the affidavit, print it out, drive to the jail, and have the magistrate read and sign the documents. App. 273. Petitioner claims based on this factual scenario, it was an error for the court to find the warrant was valid as the only logical scenario was that the affidavit was completed before the officer received confirmation of the events from the officer at the scene. App. 275. Petitioner acknowledges, however, that the officers testified they did not recall what time the phone call was made and noted that the timestamps on the videos were not always accurate. App. 274. Additionally, the officer preparing the warrant testified that the warrant was completed and submitted to the magistrate for his signature only after he spoke to the officer at the scene and received confirmation of the drug purchase. App. 290-91.
The Court of Appeals filed an order on October 29, 2014, dismissing the appeal, and finding in part,
1. As to whether the trial court erred in refusing to suppress the search warrant: State v. Dunbar, 361 S.C. 240, 248, 603 S.E.2d 615, 619 (Ct. App. 2004) (“Generally, affidavits must be made on the affiant's personal knowledge of the facts alleged in the petition. The affidavit must in some way show that the affiant is personally familiar with the facts so that he could personally testify as a
witness.”); Id. at 249, 603 S.E.2d at 620 (providing it is permissible for a magistrate to issue a search warrant based upon hearsay information that is not a result of direct personal observations of the affiant, and information given to the affiant by other officers can support probable cause for the search warrant); State v. Tindall, 388 S.C. 518, 521, 698 S.E.2d 203, 205 (2010) (holding an appellate court applies a deferential standard of review on appeal from a motion to suppress based on Fourth Amendment grounds); State v. Wright, 391 S.C. 436, 442, 706 S.E.2d 324, 326 (2011) (holding an appellate court must affirm a trial court's ruling on a motion to suppress based on the Fourth Amendment if there is any evidence to support the ruling and will reverse the trial court's decision only if there is clear error).App. 4.
Respondent moves for summary judgment on Petitioner's Ground One claim asserting Petitioner has not shown the trial court was unreasonable in its application of law and fact in denying Petitioner's motion to suppress the search warrant. ECF No. 27 at 24. Respondent also contends the Court of Appeals was not unreasonable in affirming the trial court's decision. Id. Respondent argues Petitioner has not offered any basis to demonstrate malfeasance by the officers or inaccuracy of the facts relied on to establish probable cause. Id.
In his response in opposition, Petitioner argues there was no evidence to support the trial court's decision that the search warrant was valid as the evidence showed that the officer lacked personal knowledge of all the facts when he executed the warrant affidavit. ECF No. 38 at 12-14.
After a review of the record, the undersigned finds Petitioner has failed to show the South Carolina appellate courts unreasonably applied United States Supreme Court precedent in deciding this issue. Petitioner has also not shown by clear and convincing evidence that the court reached an unreasonable factual determination of this issue given the evidence and record before it. The undersigned finds the pretrial hearing testimony and evidence, including testimony that the warrant was completed using information received from the officer at the scene before being presented to the magistrate for his signature, supports the Court of Appeals decision to affirm the trial court's ruling that the search warrant was admissible. As Petitioner has failed to overcome the deferential standard of review accorded the state appellate court's determination of this issue, see Harrington, 562 U.S. at 102-105, the undersigned recommends summary judgment be granted as to Ground One.
2. Ground Two
In Ground Two, Petitioner claims the State court erred in refusing to suppress the drug evidence when the State failed to demonstrate a complete chain of custody. ECF No. 1 at 7.
In dismissing this claim, the Court of Appeals found:
2. As to whether the trial court erred in failing to suppress the drug evidence based on an incomplete chain of custody: State v. Hatcher, 392 S.C. 86, 91, 708 S.E.2d 750, 753 (2011) (holding a party offering fungible items, such as drugs or blood samples, into evidence must establish a complete chain of custody as far as practicable); id at 95, 708 S.E.2d at 755 (“The ultimate goal of chain of custody requirements is simply to ensure that the item is what it is purported to be.”); State v. Sweet, 374 S.C. 1, 6, 647 S.E.2d 202, 205-06 (2007) (“[I]f the identity of each person handling the evidence is established, and the manner of handling is reasonably demonstrated, no abuse of discretion by the trial court is shown in admitting the evidence absent proof of tampering, bad faith, or ill-motive.”); State v. Johnson, 318 S.C. 194, 196, 456 S.E.2d 442, 444 (Ct. App. 1995) (finding, although a discrepancy existed as to the dates the evidence custodian received the drug evidence from the detective, no evidence was presented to indicate the drugs were not within the control of identifiable people during the entire time and a reconciliation of the discrepancy was not necessary to establish the chain of custody but merely reflected upon the credibility of the evidence, not its admissibility).App. 4-5.
Respondent moves for summary judgment on this Ground arguing that Petitioner's claim concerns an alleged error by the trial court in applying state evidentiary law which is not a cognizable claim for federal habeas review. ECF No. 27 at 13. Petitioner seeks refuge under the Martinez, 566 U.S. 1 exception in response to Respondent's arguments. ECF No. 38 at 11-12. However, the holding in Martinez addresses whether a petitioner can raise a procedurally defaulted ineffective assistance of counsel claim. Martinez does not apply to Respondent's argument that Petitioner is raising a state law claim that is not cognizable for federal habeas review.
Evidentiary rulings are generally considered state law matters. Spencer v. Murray, 5 F.3d 758, 763 (4th Cir. 1993) (“[A] claim about the admissibility of evidence under state law rarely is a claim upon which federal habeas corpus relief can be granted.”). Evidentiary rulings will not be considered in federal habeas “‘unless [the] erroneous evidentiary rulings were so extreme as to result in a denial of a constitutionally fair proceeding.'” Barbe v. McBride, 521 F.3d 443, 452 (4th Cir. 2008) (quoting Burket v. Angelone, 208 F.3d 172, 186 (4th Cir. 2000)). The only proper inquiry, if any, is whether the admission of the evidence itself so infected the entire trial that the resulting conviction violated due process. Estelle v. McGuire, 502 U.S. 62, 72 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”).
The undersigned has reviewed the record before the court and finds Petitioner has failed to present sufficient evidence to show the trial judge's admission of the drug evidence despite Petitioner's challenge to the chain of custody, was contrary to, or involved an unreasonable application of, clearly established federal law. Accordingly, the undersigned recommends Respondent's motion for summary judgment be granted on Ground Two.
3. Ground Three
In Ground Three, Petitioner alleges the PCR court erred in failing to find trial counsel ineffective for failing to object to the Solicitor's repeated burden shifting statements during closing argument that diluted the State's burden of proof. ECF No. 1 at 8.
Respondent contends the PCR court was not unreasonable in finding Petitioner could not establish any prejudice from this alleged error “such that there would be a reasonable probability of a different outcome at trial.” ECF No. 27 at 26.
Petitioner argues the PCR court erroneously concluded that the solicitor did not improperly shift the burden to Petitioner to prove that he was entrapped. ECF No. 38 at 17. Petitioner claims the PCR court “committed a grievous error of law” and improperly placed the burden on Petitioner to prove he was not predisposed to commit the crime. Id. at 17-19.
In denying this ineffective assistance of trial counsel claim, the PCR court cites to South Carolina state law and found that a defendant pleading entrapment has the burden of showing he was induced to commit a crime “which he would not otherwise have committed.” App. 424. The PCR court explained that although comments by the State placing any burden on a defendant is generally impermissible, when a defendant raises an affirmative defense of entrapment, he has the burden of proving inducement and lack of predisposition. Id. The PCR court found the solicitor's comments were a correct statement of law as he was referring to the elements of the affirmative defense raised by Petitioner. Id. The court found the solicitor's comments were not objectionable, and therefore, counsel was not deficient by not objecting. Id. The court also found that the record does not suggest that the outcome of the trial would have been different but for the alleged error. Id.
The Solicitor made the following comments during his closing argument:
And the judge is going to charge you on what in South Carolina we call entrapment. That means that the defendant - - and in order for you to find the defense of entrapment applies you have to find that the defendant had no predisposition to commit the crime. And the defendant bears that burden. The defendant has to prove to you that he had no predisposition. That means that he would never do that, he's never done it before, he wouldn't do it again, and the cops came and forced it upon him, he wasn't willing, he didn't want to do it.
He's put up no evidence to that effect. Now, normally in a criminal trial the state bears the burden, and for the rest of this stuff we do. And that burden is proof beyond a reasonable doubt. And I believe that every element of every charge that we put before you trafficking cocaine and PWID mari - - PWID crack cocaine that we've met that burden.
But on this instance for him to meet the burden the law puts on him for the defense of entrapment you're going to find that that applies. He has to prove to you that he was not predisposed to commit this crime. I submit he absolutely has not done that.
As a matter of fact, the evidence that's in the case, the fact that he had prior dealings with the informant without the government being involved, they had a working relationship beforehand, that is proof beyond a reasonable doubt the absolute opposite way that he was completely predisposed to commit this crime, so I do not believe, and I do not believe you should find, that the defense of entrapment applies in this case.App. 234-35.
In examining claims pertaining to improper comments by a prosecutor, “[t]he relevant question is whether the prosecutors' comments so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). However, the Darden Court noted that “it is not enough that the remarks were undesirable or even universally condemned.” Id.
Having reviewed the record and considered the weight of the evidence and the extent of these comments, the court finds that the solicitor's comments did not render Petitioner's trial fundamentally unfair. Petitioner has failed to establish that there is a reasonable probability that the result of the proceeding would have been different if trial counsel had objected. As noted by the PCR court, the solicitor's comments were a correct statement of South Carolina law on entrapment and were therefore not objectionable. Strickland, 466 U.S. at 694. Therefore, Petitioner cannot establish that trial counsel was constitutionally ineffective in failing to object during opening and closing arguments. Moreover, Petitioner has not shown that the state court's analysis of this issue misapplied clearly established federal law or, even if there were an error, that it was unreasonable. See Williams v. Taylor, 529 U.S. at 410. Based on the foregoing, the undersigned recommends Respondent be granted summary judgment on Ground Three.
Under South Carolina law, a defendant asserting the defense of entrapment “has the burden of showing that he was induced, tricked or incited to commit a crime which he would not otherwise have committed.” State v. Johnson, 367 S.E.2d 700, 701 (S.C. 1988).
4. Ground Four
In Ground Four, Petitioner claims the State Court erred when it did not find counsel ineffective for failing to provide Petitioner with discovery and the recorded phone calls which would have assisted Petitioner in making an informed decision to plead or go to trial. ECF No. 1 at 21-22.
At the PCR hearing, Petitioner testified that although his trial counsel reviewed some of his discovery with him, trial counsel did not play the recordings of the conversations between Petitioner and the confidential informant. App. 333-38.
PCR counsel testified he reviewed the video of the drug purchase with Petitioner. App. 374. Counsel testified he believed he was able to play some, but not all, of the phone recordings for Petitioner before his computer battery died. App. 375-76. Counsel stated it was possible Petitioner may not have heard the recorded phone calls at all, but Petitioner was aware there was a confidential informant, he and Petitioner discussed the substance of the phone calls, and he told Petitioner what was on the tapes. Id.
The PCR court found this ineffective assistance of counsel allegation to be without merit, explaining that he found counsel's testimony on this issue more credible than Petitioner's. App. 427. The court found Petitioner failed to prove any deficiency in the manner his counsel handled the undercover phone calls noting counsel indicated he and Petitioner discussed the content of the calls and Petitioner did not ask to hear the recordings. Id. The court also found Petitioner could not show that the outcome of the trial would have been different, absent the alleged error. Id.
Respondent moves for summary judgment noting the PCR court was not unreasonable in its findings of fact and law in denying post-conviction relief as counsel had reviewed and discussed the recorded phone calls with Petitioner. ECF No. 27 at 27-28.
In his response in opposition, Petitioner appears to argue that the PCR court's findings of fact were not supported by the record. ECF No. 38 at 19-20. Petitioner argues that although the PCR court cited to testimony from trial counsel that Petitioner indicated he was comfortable with their discussions about the phone recordings, his PCR appellate counsel could not locate a record cite to support this claim. Id. at 20.
Addressing this ineffective assistance of counsel claim, the undersigned finds the evidence presented at the hearing supports the PCR court's finding that counsel provided representation within the range of competence required in criminal cases. The PCR court's factual findings are based, in part, on its assessment that counsel's testimony was more credible than that of Petitioner. The PCR court's credibility determination is entitled to deference in this action. Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008) (citing 28 U.S.C. § 2254(e)(1)) (“[F]or a federal habeas court to overturn a state court's credibility judgments, the state court's error must be stark and clear.”); see also 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, but not by them.”). Petitioner may overcome this presumption of correctness only by showing “‘clear and convincing evidence to the contrary.'” Wilson v. Ozmint, 352 F.3d 847, 858 (4th Cir. 2003) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). Although Petitioner contends there is no support in the record to support the PCR court's finding that counsel testified that Petitioner was comfortable with their discussions about the phone recordings, trial counsel's testimony that Petitioner was aware there was a confidential informant, he and Petitioner discussed the phone calls between Petitioner and the informant, and Petitioner never requested to hear the recordings support this conclusion by the PCR court. See App. 374, ln. 14-25; App, 375, ln. 11-20; App. 380, ln. 6-21; App. 403, ln. 16-22; App. 404, ln. 1-25. Petitioner has shown no cause to discount the PCR court's credibility determination. Accordingly, the undersigned recommends Respondent be granted summary judgment on this Ground Four claim.
5. Ground Five
In Ground Five, Petitioner claims the PCR court erred in failing to find trial counsel rendered ineffective assistance when he failed to object to the Solicitor's questioning of the confidential informant which introduced improper character evidence. ECF No. 1 at 22-23.
At the PCR hearing, counsel was asked about their entrapment defense, and he stated he believed Petitioner had the burden to show he was not predisposed to commit the crime. App. 383. Counsel testified the State could prove predisposition through prior course of conduct, and he did not object to the solicitor's questioning of the confidential informant about prior dealings with Petitioner because he did not believe it would be a winning objection. App. 384. Counsel stated the testimony about Petitioner's prior bad acts came in to explain to the jury the language used in the video, and he thought this was a legitimate line of questions. App. 385.
In rejecting this claim, the PCR court explained Petitioner failed to prove his counsel was ineffective for failing to object to the testimony from the confidential informant about communications during the sale of cocaine to Petitioner. App. 428. The PCR court found the solicitor was seeking explanations for the street language used during the sale, and therefore any objection by counsel would have been futile as the evidence would more than likely have been admitted despite a Rule 403 probative value versus prejudice analysis. Id. The court explained that once Petitioner asserted an entrapment defense he opened the door for the State to present evidence of prior dealings with the confidential informant in order to rebut the defense's claim of lack of predisposition. Id. The court found the prejudicial evidence of predisposition “is a necessary risk of asserting” an entrapment defense. Id.
Respondent contends the PCR court's ruling was not an unreasonable application of law and fact under Strickland. ECF No. 27 at 27. Respondent alleged it is a dubious argument to suggest that the State would not be permitted to introduce evidence of predisposition after Petitioner raised an entrapment defense. Id. Respondent claims much of the informant's testimony clarified the meaning of the street language used between Petitioner and the informant during the sale, and the State was entitled to use all reasonable inferences from this evidence to show predisposition. Id. at 27-28.
In response, Petitioner argues the PCR court unreasonably applied Strickland in light of the facts presented. ECF No. 38 at 19. Petitioner claims the manner in which the solicitor questioned the informant was improper as he could have asked the informant about “the so-called allege prior exchange” instead of using his questions to paint Petitioner “as a big-time drug dealer.” Id. Petitioner claims his counsel was ineffective by failing to object to the State's improper character evidence. Id.
Petitioner has not shown that the PCR court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. Nor has Petitioner shown the PCR court's factual findings were based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. See Williams v. Taylor, 529 U.S. at 398. As the PCR court determined, Petitioner's trial counsel did not have a basis to object to this line of questioning by the State about Petitioner's prior criminal activity. As noted by the PCR court, this avenue of questioning was not objectionable as this challenged information was elicited to explain the street language used during the drug deal, while also being used to show Petitioner was predisposed to commit the crime. Petitioner has failed to demonstrate that his counsel's performance was deficient, and the undersigned recommends Respondent be granted summary judgment on Ground Five.
V. Conclusion and Recommendation
Based upon the foregoing, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 28, be GRANTED and the Petition be DENIED.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and 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 2317
Florence, South Carolina 29503
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).