Gray v. Pate

Filing 36

ORDER ACCEPTING 29 REPORT AND RECOMMENDATION re 20 Motion for Summary Judgment filed by Warden Pate. It is ordered that Respondent's Motion for Summary Judgment (ECF No. 20) is granted and Petitioner's Petition for Writ of Habeas Corpus (ECF No. 1) is denied with prejudice. Signed by Honorable J Michelle Childs on 3/24/2014. (abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Paul Gray,

)
)
Petitioner,
)
)
v.
)
)
Warden Pate,
)
)
Respondent.
)
____________________________________)

Civil Action No. 0:12-cv-03320-JMC
ORDER AND OPINION

This matter is before the court for review of the magistrate judge’s Report and
Recommendation (“Report”), (ECF No. 29), filed November 25, 2013, recommending that
Respondent Warden Pate’s (“Respondent”) Motion for Summary Judgment (ECF No. 20) be
granted and that pro se Petitioner Paul Gray’s (“Petitioner”) Petition for a Writ of Habeas Corpus
(ECF No. 1) pursuant to 28 U.S.C. § 2254 be denied. (ECF No. 29 at 1). This review considers
Petitioner’s Objections to the Report (“Objections”), (ECF No. 34), filed December 16, 2013.
For the reasons set forth herein, the court ACCEPTS the magistrate judge’s Report, GRANTS
Respondent’s motion for summary judgment, and DENIES Petitioner’s petition with prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
The court concludes, upon its own careful review of the record, that the magistrate
judge’s factual and procedural summation is accurate. The court adopts this summary as its own,
and only references facts pertinent to the analysis of Petitioner’s objections. The relevant facts,
viewed in a light most favorable to Petitioner, are as follows.
On August 6, 2001, Petitioner was indicted in Charleston County for two counts of
criminal sexual conduct in the first degree and for one count of lewd act upon a minor. (ECF
No. 19-10 at 239–244). A three-day jury trial was held October 14–16, 2002 for these charges.

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Id. at 5–238. Petitioner was found guilty of one count of criminal sexual conduct in the first
degree and one count of lewd act upon a minor. Id. at 333. He was acquitted of one count of
criminal sexual conduct in the first degree. (ECF No. 19-1 at 5). Petitioner was sentenced by the
trial judge to eighteen years imprisonment for the criminal sexual conduct conviction. (ECF No.
19-10 at 333). The trial judge also sentenced Petitioner to eight years suspended upon time
served and five years of probation for the lewd act conviction. Id. The trial judge ordered that
the sentences be served consecutively. Id.
Petitioner filed a direct appeal on April 5, 2004, raising a claim that the trial court erred
in admitting the testimony of a child sex abuse expert who testified on behalf of the state. (ECF
No. 19-1). The expert testified that it is very common for a child victim to delay reporting a
sexual assault. Id. at 8–9. Petitioner’s trial attorneys as well as Petitioner’s attorney on direct
appeal argued that the expert’s testimony should have been excluded under S.C. R. E VID. 403
because its prejudice substantially outweighed its probative value. Id. at 10–11. The South
Carolina Court of Appeals denied Petitioner’s appeal and affirmed his state court judgment
finding the testimony helped explain the victim’s delayed disclosure and was not unduly
prejudicial. (ECF No. 19-3 at 4–5). The matter was remitted to the lower court on November
17, 2004. (ECF No. 19-4).
Petitioner filed an application for post-conviction relief (“PCR”) on May 26, 2005. (ECF
No. 19-10 at 268–274). On June 1, 2007, the PCR court held a hearing where Petitioner’s PCR
counsel argued that Petitioner’s trial counsel was ineffective for not presenting an expert witness
to rebut the testimony of the state’s child sex abuse expert and for not presenting Petitioner’s
mother as a witness. Id. at 283. Petitioner’s mother was the victim’s babysitter and would have
testified that the victim fabricated the charges because the victim wanted to go away to live with

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her mother instead of living with her grandmother. Id. at 297. Petitioner’s trial counsel testified
at the hearing that they decided not to call Petitioner’s mother as a witness because she was not
prepared to testify from her own personal knowledge. Id. at 294. On October 3, 2008, the PCR
court issued an order finding that Petitioner’s contention that an expert witness would have been
helpful to his case was merely speculative. Id. at 314. The PCR court further found that
Petitioner’s trial counsel made a reasonable strategic decision in not calling Petitioner’s mother
as a witness. Id. The PCR court concluded that Petitioner had failed to meet the burden of proof
set forth under Strickland v. Washington, 466 U.S. 668 (1984), for his ineffective assistance of
counsel claims. Id.
In his petition for a writ of certiorari1 filed April 28, 2011, in the South Carolina Supreme
Court, Petitioner renewed his PCR claims of ineffective assistance of counsel for his trial
counsel’s failure to call an expert to rebut the testimony of the state’s child sex abuse expert
regarding delayed reporting and counsel’s failure to call Petitioner’s mother as a witness. (ECF
No. 19-6 at 3). On August 23, 2012, the South Carolina Supreme Court denied Petitioner’s
petition for both of his claims. (ECF No. 19-8).
Petitioner filed the instant pro se habeas petition on November 20, 2012. (ECF No. 1).
Petitioner states three grounds for habeas relief. Id. First, Petitioner claims that the trial court
erred in admitting the testimony of the state’s child sex abuse expert concerning delayed
reporting because the probative value of the testimony was substantially outweighed by its
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Petitioner filed a pro se appeal of his 2005 PCR application’s denial; however, the South
Carolina Supreme Court dismissed Petitioner’s appeal on January 22, 2009, for failure to timely
serve opposing counsel. (ECF No. 19-10 at 317). Petitioner filed a second PCR application on
April 22, 2009, raising among other claims that his PCR counsel was ineffective for not properly
filing a notice of appeal for his 2005 PCR application. Id. at 318–325. By consent order dated
June 28, 2010, the court granted Petitioner leave to file a belated petition pursuant to Austin v.
State, 409 S.E.2d 395 (S.C. 1991) to seek appellate review of his 2005 PCR application. Id. at
333–336.
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prejudice. Id. at 5. Second, Petitioner argues that the PCR court erred in not finding that
Petitioner’s trial counsel was ineffective for failing to present an expert to rebut the testimony of
the state’s child sex abuse expert. Id. at 6. For a third ground, Petitioner contends that the PCR
court erred in denying his claim of ineffective assistance for his trial counsel’s failure to call his
mother as a witness. Id. at 8.
The magistrate judge issued the Report on November 25, 2013. (ECF No. 29). The
Report concluded that Petitioner’s first claim regarding the admissibility of the state expert’s
testimony failed because Petitioner did not demonstrate that the trial court or appeals court
misapplied federal law or that the purported evidentiary error denied Petitioner a constitutionally
fair proceeding. Id. at 11 (citing Barbe v. McBride, 521 F.3d 443, 452 (4th Cir. 2008)). The
magistrate judge further found that Petitioner’s first ineffective assistance of counsel claim
lacked merit because the South Carolina Supreme Court reasonably determined that Petitioner
failed to show prejudice from his trial counsel’s decision to not call an expert on delayed
disclosure of sexual abuse. Id. at 15. The Report found that Petitioner’s second ineffective
assistance claim should be denied because the South Carolina Supreme Court reasonably
concluded that Petitioner’s trial counsel made a sensible strategic decision to not call Petitioner’s
mother. Id. at 18–19. Moreover, the magistrate judge concluded that Petitioner had not shown
he was prejudiced by the absence of his mother’s testimony at trial. Id.
On December 16, 2013, Petitioner filed objections to the Report contending that the
magistrate judge erred in analyzing each of the three grounds of Petitioner’s petition. 2 (ECF No.
34). Petitioner objects to the Report’s assessment of his first claim asserting that the state
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Petitioner also requests throughout his objections that the court hold an evidentiary hearing on
the matters raised in his petition. (See, e.g., ECF No. 34 at 4). Upon consideration of
Petitioner’s request, the court has determined that an evidentiary hearing is unnecessary for the
court to resolve the issues presented by Petitioner’s petition.
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expert’s testimony was highly speculative, significantly impacted the jury verdict, and deprived
Petitioner of a fair trial. Id. at 4. Petitioner also argues that the state court conducted an
improper Strickland analysis for both of his ineffective assistance of counsel claims. Id. at 7.
STANDARD OF REVIEW
The magistrate judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1) and
Local Civil Rule 73.02 for the District of South Carolina. The magistrate judge makes only a
recommendation to this court.

The recommendation has no presumptive weight.

The

responsibility to make a final determination remains with this court. See Matthews v. Weber, 423
U.S. 261, 270–71 (1976). This court is charged with making a de novo determination of those
portions of the Report to which specific objections are made, and the court may accept, reject, or
modify, in whole or in part, the magistrate judge’s recommendation, or recommit the matter with
instructions. See 28 U.S.C. § 636 (b)(1).
Federal Habeas Review
Federal habeas review is conducted pursuant to the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). In order to grant relief under the AEDPA, the federal court
must find that the underlying state court proceeding: (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 application of the facts in light of the evidence presented at the state court
proceeding.

28 U.S.C. § 2254(d)(1)(2).

The court must also assume that the factual

determinations made by the state court are correct unless the petitioner rebuts that presumption
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

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DISCUSSION
As Petitioner is a pro se litigant, the court is required to liberally construe his arguments.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). The court addresses those arguments
that, under the mandated liberal construction, it has reasonably found to state a claim. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999).
First Ground: Admission of State Expert’s Testimony
“[T]he admissibility of evidence is generally a matter of state law which does not
properly concern a federal habeas court unless it impugns the fundamental fairness of the trial.”
Stockton v. Com. of Va., 852 F.2d 740, 748 (4th Cir. 1988). Therefore, the court will not grant
relief for an erroneous state evidentiary determination unless the ruling is “so extreme as to result
in a denial of a constitutionally fair proceeding.” Burket v. Angelone, 208 F.3d 172, 186 (4th
Cir. 2000). In the instant case, the court does not find that the state appeals court’s decision to
affirm the admission of the state expert’s testimony was an unreasonable application of the law.
The South Carolina Court of Appeals found that the testimony assisted the jury in understanding
that child victims often delay disclosing sexual abuse. (ECF No. 19-3 at 4–5). The appeals court
therefore concluded that the testimony’s probative value outweighed any prejudice to Petitioner.
Id. at 5.
In reaching this decision, the South Carolina Court of Appeals relied upon State v.
Schumpert, 435 S.E.2d 859 (S.C. 1993) which held that “expert testimony…[is] admissible as
rape trauma evidence to prove a sexual offense occurred where the probative value of such
evidence outweighs its prejudicial effect.” Id. at 862. The appeals court found further support
for its decision in State v. Weaverling, 523 S.E.2d 787 (S.C. Ct. App. 1999) which stated that
“[e]xpert testimony concerning common behavioral characteristics of sexual assault victims…is

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admissible.” Id. at 794. Weaverling also observed that such testimony “assists the jury in
understanding some of the aspects of the behavior of victims and provides insight into the
sexually abused child’s often strange demeanor.” Id.
Given its sound basis in state law, the court finds that the state court’s decision was not
unreasonable nor did it deprive Petitioner of a fair trial. Accordingly, Respondent is entitled to
summary judgment for this ground of Petitioner’s petition.
Second and Third Grounds:
Certain Witnesses

Ineffective Assistance of Counsel for Failure to Present

In Strickland v. Washington, the United States Supreme Court explained, “The
benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the [proceeding] cannot be
relied on as having produced a just result.” Strickland, 466 U.S. at 686. In addition to showing
his counsel’s representation “fell below an objective standard of reasonableness”, the petitioner
must also show “that the deficient performance prejudiced the defense.” Id. at 687–88. In other
words, he must prove “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694.

In satisfying this

standard pursuant to a § 2254 challenge, the petitioner must demonstrate that there is no
“reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington v.
Richter, 131 S. Ct. 770, 788 (2010).
The court agrees with the magistrate judge’s conclusion that Petitioner has failed to
demonstrate that the state courts unreasonably applied the Strickland standard to Petitioner’s
claims. (See ECF No. 29 at 17–19). Petitioner has not shown that the rebuttal testimony of a
defense child sex abuse expert or the testimony of his mother would have likely altered the result
of his trial. As such, the court finds the state courts did not apply Strickland unreasonably.

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Accordingly, Respondent is granted summary judgment for the second and third grounds of
Petitioner’s petition.
CONCLUSION
Upon careful consideration of the record before the court, the court ACCEPTS the
magistrate judge’s Report (ECF No. 29) and incorporates it herein by reference. It is hereby
ORDERED that Respondent’s Motion for Summary Judgment (ECF No. 20) is GRANTED and
Petitioner's Petition for a Writ of Habeas Corpus (ECF No. 1) is DENIED with prejudice.
Certificate of Appealability
The law governing certificates of appealability provides that:
(c)(2) A certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate which specific issue or
issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists
would find this court’s assessment of his constitutional claims is debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable.

See Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee,
252 F.3d 676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate
of appealability has not been met.
IT IS SO ORDERED.

United States District Judge
March 24, 2014
Greenville, South Carolina

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