Cheeks v. Joyner

Filing 59

ORDER RULING ON REPORT AND RECOMMENDATION adopting 54 Report and Recommendation, granting 33 Motion for Summary Judgment, and denying a certificate of appealability. Signed by Honorable Donald C Coggins, Jr on 8/8/2018. (jpet, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Derrick Lamar Cheeks,

)
)
Petitioner,
)
)
vs.
)
)
Alford Joyner,
)
)
Respondent. )
______________________________________)

C/A No. 0:17-cv-02876-DCC

ORDER

Petitioner, proceeding pro se, is seeking habeas corpus relief pursuant to 28 U.S.C.
§ 2254. ECF No. 1, 8. Respondent filed an Amended Motion for Summary Judgment and
Return and Memorandum on February 26, 2018. ECF Nos. 32, 33. A Roseboro Order
was entered by the Court and mailed to Petitioner, advising him of the importance of a
dispositive motion and the need for Petitioner to file an adequate response. ECF No. 36.
Petitioner filed a Response in Opposition to the Motion for Summary Judgment and a
Supplement, Respondent filed a Reply, and Petitioner filed an Amended Response in
Opposition and a Sur-Reply.1 ECF Nos. 45, 46, 47, 49, 51.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), (D.S.C.),
this matter was referred to United States Magistrate Judge Paige J. Gossett for pre-trial
proceedings and a Report and Recommendation (“Report”). On June 28, 2018, the
Magistrate Judge issued a Report recommending that the Motion for Summary Judgment

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Respondent also filed a Motion to Strike Petitioner’s Supplement, which the
Magistrate Judge denied in the Report and Recommendation. ECF Nos. 48, 54.

be granted and the Petition be dismissed. ECF No. 54. Petitioner filed objections to the
Report. ECF No. 56.
APPLICABLE LAW
The Magistrate Judge makes only a recommendation to this Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination of any portion of the Report of the
Magistrate Judge to which a specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit
the matter to the Magistrate Judge with instructions. See U.S.C. § 636(b). The Court will
review the Report only for clear error in the absence of an objection. See Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the
absence of 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.” (citation omitted)).
Petitioner's claims are governed by 28 U.S.C. § 2254(d), which provides that his
petition cannot be granted unless the claims “(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
in the State court proceeding.” 28 U.S.C. § 2254(d). “[A] federal habeas court may not
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issue the writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 529
U.S. 362, 411 (2000). Importantly, “a determination of a factual issue 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).
DISCUSSION
Petitioner raised eight grounds in his Petition, and the Magistrate Judge
recommended granting summary judgment. Petitioner does not object to the Magistrate
Judge’s recommendation that summary judgement should be granted with respect to
Ground Seven. The Court has reviewed the record in this case, the applicable law, and the
Report of the Magistrate Judge and finds no clear error and agrees with the Report’s
recommendation regarding this claim.

Petitioner objects to the Magistrate Judge’s

recommendation with respect to the other grounds. The Magistrate Judge provided a
thorough recitation of the procedural history and the relevant law, including the summary
judgment standard and the habeas corpus standard of review, which the Court incorporates
into this Order by reference.
Non-Cognizable Claim
In Ground One, Petitioner asserted that the trial court erred by instructing the jury
that actual knowledge of the presence of crack cocaine is strong evidence of a defendant’s
intent to control its disposition or use. ECF No. 8-4 at 1. The Magistrate Judge determined
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that it was not cognizable on federal habeas review because this claim raised only issues
of state law. ECF No. 54 at 14–15. Petitioner objects to the Magistrate Judge addressing
claims not raised in his Petition, reiterates his assertion that the trial court’s instruction was
an impermissible comment on the facts, and states that the Magistrate Judge did not
address his claim. ECF No. 56 at 1–2. The Court disagrees.
“[Q]uestions of jury instructions are matters of state law, not cognizable on federal
review, unless a specific constitutional issue is implicated that calls into question the Due
Process Clause.” Alexander v. Cartledge, No. 6:16-cv-0600-HMH-KFM, 2017 WL 770570,
at *5 (D.S.C. Feb. 28, 2017) (citing Grandison v. Corcoran, 78 F. Supp. 2d 499, 507 (D.
Md. 2000)). Here, in his direct appeal, the Supreme Court of South Carolina agreed with
Petitioner that it was error for the trial court to give the challenged instruction; however, it
also found that Petitioner was not prejudiced by the error. App. 482. As explained by the
Magistrate Judge, this is a question of state constitutional law which does not give rise to
federal constitutional error. Accordingly, the Court will not interfere with the Supreme Court
of South Carolina’s determination of state law, and this objection is overruled.
Barred by Stone
In Grounds Two and Three, Petitioner raised issues under the Fourth Amendment.
ECF No. 8-4 at 2–3 He stated that he had a legitimate expectation of privacy in the
premises searched and that the search warrant used was defective on its face because it
failed to state with particularity the premises to be searched. The Magistrate Judge found
that these claims were barred by the Supreme Court’s ruling in Stone v. Powell, 428 U.S.
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465 (1976).2 ECF No. 54 at 15–16. Petitioner objects to the Magistrate Judge’s finding
that he had a “full and fair” opportunity to litigate his Fourth Amendment claims in the state
court and seems to object to that Magistrate Judge’s decision to group these Grounds.
ECF No. 56 at 2–6.
Petitioner raised these arguments at trial and on direct appeal. App. 41–50, 479.
Upon review of the record, the Court disagrees with Petitioner’s argument that the state
courts failed to fully consider his Fourth Amendment arguments or that they “wilfully
refuse[d] to apply the correct and controlling constitutional standards,” as suggested by
Petitioner. See Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365 (4th Cir.1985),
overruled on other grounds, 490 U.S. 228 (1989) (holding that conclusory allegations,
without more, are insufficient to preclude granting the summary judgment motion).
Accordingly, Grounds Two and Three are barred from federal habeas review by the ruling
in Stone, and Petitioner’s objections are overruled.
Procedurally Defaulted Claims
Procedural Bar
A habeas petitioner must exhaust the remedies available to him in state court. 28
U.S.C. § 2254(b) (1). This requires a habeas petitioner to “fairly present his claims to the
state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir.1997), overruled on

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In Stone, the Supreme Court held that “where the State has provided an
opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may
not be granted federal habeas relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at this trial.” 428 U.S. at 494.
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other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir.2011). Procedural
bypass, sometimes referred to as procedural bar or procedural default, occurs when a
petitioner seeking habeas corpus relief failed to the raise the issue asserted in his habeas
petition at the appropriate time in state court. Because the petitioner has no further means
of raising the issue before the state courts, he is considered to have bypassed his state
court remedies and is, thus, procedurally barred from raising the issue in a federal habeas
proceeding. See Smith v. Murray, 477 U.S. 527, 533 (1986); Weeks v. Angelone, 176 F.3d
249, 272 n. 15 (4th Cir.1999) (“A claim is procedurally defaulted when it is rejected by a
state court on an adequate and independent state procedural ground.”).
Cause and Prejudice
Under Martinez v. Ryan, 566 U.S. 1 (2012), a federal habeas court can find cause,
thus excusing procedural default of an ineffective trial counsel claim, where: (1) the claim
of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause”
consisted of there being “no counsel” or only “ineffective” counsel during the state collateral
review proceeding; (3) the state collateral review proceeding was the “initial” review
proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law
requires that an “ineffective assistance of trial counsel [claim] . . . be raised in an
initial-review collateral proceeding.” Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013)
(quoting Martinez, 566 U.S. at 14, 17). A “substantial” ineffective trial counsel claim is one
that “has some merit.” Martinez, 566 U.S. at 14.

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Analysis
The Magistrate Judge found that Grounds Four through Seven were procedurally
barred. Thus, Petitioner has failed to “fairly present his claims to the state's highest court”
and bypassed his state court remedies. Matthews, 105 F.3d at 911. Therefore, he is
barred from raising them here unless he can show (1) cause for not complying with the
state court's procedural rule and actual prejudice resulting from the alleged constitutional
violation or (2) a miscarriage of justice. Yeatts v. Angelone, 166 F.3d 255, 260 (4th Cir.
1999).
Ground Four
In Ground Four, Petitioner alleges that trial counsel was ineffective for failing to
move for a pre-trial hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). ECF No.
8-4 at 4. The Magistrate Judge found this claim was not raised on appeal from the denial
of post-conviction relief (“PCR”) and was procedurally defaulted; Petitioner argued, under
Martinez, that he could show cause to excuse the procedural bar because PCR counsel
was ineffective for failing to introduce evidence to support his claim. ECF No. 54 at 18.
The Magistrate determined that Petitioner could not establish the requisite cause to
overcome the procedural bar. The Court agrees.
The Court need not decide whether PCR counsel's performance was deficient under
Strickland because Petitioner cannot show a reasonable probability that, but for PCR
counsel's omission, the PCR court would have granted him relief. Pursuant to Franks and
its progeny, the Fourth Amendment requires that a hearing be held at defendant's request

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only where he makes a substantial preliminary showing that the affiant included a false
statement, knowingly or intentionally, or with reckless disregard for the truth, and that the
challenged false statements were essential to the Court's finding of probable cause.
Franks, at 155–156. The purpose of a Franks hearing is to determine whether the probable
cause determination was based on intentionally false statements. See United States v.
Akinkoye, 185 F.3d 192, 199 (4th Cir. 1999).
Here, the Magistrate Judge found that while Petitioner argued that PCR counsel
should have presented evidence that statements in the search warrant affidavit were false,
Petitioner failed to identify which statements were false or forecast evidence that would
prove that any of the statements were false. ECF No. 54 at18. In his objections, Petitioner
states that PCR counsel failed to investigate a police report from S/A Hanning which
revealed that Paul Norris intentionally included false information and omitted exculpatory
information in his affidavit. ECF No. 56 at 7. Petitioner seems argue that Norris’s affidavit
included an address in a chain of events that was not included in Hanning’s police report.
Id. Petitioner further argues that, in his affidavit, Norris left out the exculpatory information
that Eric Elder’s mother told him that Petitioner had purchased a phone for Elder and was
always buying him clothes, giving him money, and paid to have his South Carolina Drivers
License reinstated. Id. at 7–8.
Plaintiff’s allegations fail to suggest that the affidavit contained false information and
certainly do not imply that the affiant included a false statement, knowingly or intentionally,
or with reckless disregard for the truth, and that the challenged false statements were

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essential to the Court's finding of probable cause. Accordingly Petitioner fails to show that
the underlying ineffective assistance claim is a substantial one; therefore, he fails to show
cause to excuse the procedural bar in Ground Four. This objection is overruled.
Ground Five
In Ground Five, Petitioner asserts that trial counsel was ineffective in failing to make
a pre-trial motion that the confidential informant’s identity be disclosed. ECF No. 8-4 at 5.
The Magistrate Judge found that this claim was procedurally barred because the PCR court
did not rule on this issue, and Petitioner argued that he could overcome the procedural bar.
ECF No. 54 at 19–20.
Petitioner argued that the confidential informant should have to be disclosed before
trial because the confidential informant was the only witness who could have testified about
the evidence used against him in the search warrant. The Magistrate Judge found that
Petitioner was not tried for any of the drug activity purportedly witnessed by the confidential
informant and that the State only used evidence from witnesses who testified at trial and
the physical evidence recovered from the residence where law enforcement observed
Petitioner manufacturing narcotics. ECF No. 54 at 20.
Petitioner objects to the Magistrate’s “misstatements that Petitioner was not tried for
any of the drug activity witnessed by the confidential informant and the information provided
by the confidential informant only helped supply the officers with cause to establish
surveillance and later obtain a search warrant, thus making the confidential informant more
like a ‘mere tipster’ as described in Humphries.” ECF No. 56 at 9.

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In State v. Humphries, the Supreme Court of South Carolina held that,
Although the State is generally privileged from revealing the
name of a confidential informant, disclosure may be required
when the informant’s identity is relevant and helpful to the
defense or is essential for a fair determination of the State’s
case against the accused. For instance, if the informant is an
active participant in the criminal transaction and/or a material
witness on the issue of guilt or innocence, disclosure of his
identity may be required depending upon the facts and
circumstances. On the other hand, an informant’s identity need
not be disclosed where he possesses only a peripheral
knowledge of the crime or is a mere “tipster” who supplies a
lead to law enforcement. The burden is upon the defendant to
show the facts and circumstances entitling him to the
disclosure.
579 S.E.2d 613, 614–15 (S.C. 2003) (internal citations omitted).
Petitioner fails to assert any allegations that call into question the reasonableness
of the conclusion that the confidential informant was a “mere tipster” in his criminal case.
His conclusory assertion that the confidential informant’s identity should have been
disclosed is insufficient to rise to the level of a plausible allegation that trial counsel had a
basis upon which to seek disclosure of the confidential informant. Thus, Petitioner fails to
demonstrate that the underlying ineffective assistance of counsel claim was substantial
such that he can show cause to excuse the procedural bar based on PCR counsel’s failure
to raise this claim. This objection is overruled.
Ground Six
In Ground Six, Petitioner asserts that trial counsel was ineffective for failing to move
to quash petitioner’s indictment based on selective prosecution. ECF No. 8-4 at 6. The

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Magistrate Judge found that this claim was not raised in Petitioner’s PCR appeal and was
procedurally barred; however, Petitioner argued that he could demonstrate cause to
overcome the procedural bar because PCR counsel failed to raise this issue in a Rule 59(e)
motion to alter or amend the judgment. The Magistrate Judge concluded that Petitioner
failed to overcome the procedural bar because PCR counsel could not have been deficient
as this claim was preserved for appellate review. ECF No. 54 at 21–22. In his objections,
Petitioner attempts to relitigate this issue, but does not address the merits of the Magistrate
Judge’s finding. The Court has reviewed this issue de novo and overrules Petitioner’s
objection.
Merits
In Ground Eight, Petitioner argues that trial counsel was ineffective in failing to object
to testimony from Eric Elder and Tracy Markley that constituted impermissible prior bad act
evidence. ECF No. 8-4 at 8. The Magistrate Judge addressed this claim on the merits,
and she found that Petitioner was not entitled to federal habeas relief on this ground. In
his objections, Petitioner argues Elder’s and Markley’s testimony at his trial amounted to
impermissible evidence of prior bad acts.3 ECF No. 12–23.
Where allegations of ineffective assistance of counsel are made, the question is
“whether counsel's conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.” Strickland v.

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Plaintiff makes various claims related to the facts of the case that have no
bearing on the issue at hand.
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Washington, 466 U.S. 668, 686 (1984). First, a petitioner must show that counsel made
errors so serious that counsel's performance was below the objective standard of
reasonableness guaranteed by the Sixth Amendment. Id. at 687–88. Second, the
petitioner must show that “there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
“The standards created by Strickland and § 2254(d) are both highly deferential . . . and
when the two apply in tandem, review is doubly so.” Harrington v. Richter, 131 S.Ct. 770,
788 (2011). In applying § 2254(d), “the question is not whether counsel's actions were
reasonable. The question is whether there is any reasonable argument that counsel
satisfied Strickland's deferential standard.” Id.
Here, the PCR court addressed trial counsel’s performance under the standard set
forth in Strickland. App. 588–89. The PCR court found that,
Applicant has failed to meet his burden of proving that Counsel
was ineffective for failing to make a motion to exclude
character and prior bad act evidence before the trial.
Applicant’s first complaint regarded statements elicited from
Elder. When asked if he had ever been present during the
manufacturing or cooking of crack cocaine, Elder answered
that he had. This Court finds that Counsel was not ineffective
for failing to object to this statement because it is not an
example of a prior bad act by Applicant because it does not
refer to Applicant. Next, when asked why he drove Cheeks’
car, Elder answered that he had hoped to get free crack. This
Court finds that Counsel was not ineffective for failing to object
to this statement because it is part of the res gestae of the
case and not a prior bad act. When the statement is read in
context, the solicitor was asking Elder about what was
occurring during the day in question and why he was driving
the car that was later pulled over by police. Later in the trial,
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Elder was asked why he left the residence with Ricky Cheeks
and he responded that it was because Applicant told him to go
somewhere to get rid of something. This Court finds that
Counsel was not ineffective for failing to object to this
statement because it describes the res gestae of the case and
explains why Elder left the house before he was pulled over by
police. Lastly, Applicant took issue with Markley’s statement
that he met Applicant through a friend who was buying crack
from Applicant.
Counsel testified at the hearing that he did not object to these
because he did not believe them to be objectionable and an
objection would have unnecessarily drawn the jury’s attention
to the statements. Where counsel articulates a valid strategic
reason for his action or inaction, counsel’s performance should
not be found ineffective. Roseboro v. State, 317 S.C. 292,
294, 454 S.E.2d 312, 313 (1996); Stokes v. State, 308 S.C.
546, 548, 419 S.E.2d 778, 778-79 (1992). Courts must be
wary of second guessing counsel’s trial tactics; and where
counsel articulates a valid reason for employing such strategy,
such conduct is not ineffective assistance of counsel.
Whitehead v. State, 308 S.C. 119, 122, 417 S.E.2d 529, 531
(1992). Here, Counsel articulated a valid strategy in that he did
not want to draw even more attention to the subject
statements. Accordingly, this Court finds that Applicant has not
demonstrated that Counsel’s performance in this respect was
unreasonable or that such performance prejudiced him.
App. 592–93. The PCR court’s denial of the Petitioner’s ineffective assistance claim was
neither contrary to nor an unreasonable application of applicable Supreme Court precedent.
First, the PCR court applied the Strickland standard, which is the applicable Supreme Court
precedent. Second, the record fails to demonstrate the PCR court confronted a set of facts
that were materially indistinguishable from those considered in a decision of the Supreme
Court but arrived at a result different from the Supreme Court precedent.

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Moreover, the record supports the PCR court’s determination. At the PCR hearing,
trial counsel testified that the witnesses’ statements “in the grand scheme of things at the
time, it would [have] been something that, that did not strike me as being extensive enough
or large enough to jump and make an objections and draw more attention to it.”4 App. 557.
Thus, trial counsel provided a valid strategic reason for his decision to decline to object to
the witnesses’ statements. See Strickland, 466 U.S. at 689 (“[A] fair assessment of
attorney performance requires that every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to
evaluate the conduct from counsel's perspective at the time. Because of the difficulties
inherent in making the evaluation, 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. There are countless ways to provide
effective assistance in any given case. Even the best criminal defense attorneys would not
defend a particular client in the same way.” (internal citation and quotation marks omitted)).
While the decisions of trial counsel are always subject to being second guessed with the
benefit of hindsight, tactical and strategic choices made by counsel after due consideration
do not constitute ineffective assistance of counsel. Id. Decisions about what types of
evidence to introduce “are ones of trial strategy, and attorneys have great latitude on where

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Trial counsel’s testimony at the PCR hearing that in reviewing the witnesses’
statements after Petitioner’s conviction, he possibly should have objected does not alter
trial counsel’s valid strategic reason for declining to object to them at trial.
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they can focus the jury's attention and what sort of mitigating evidence they can choose not
to introduce.” Pruett v. Thompson, 996 F.2d 1560, 1571 n. 9 (4th Cir. 1993) (citation
omitted); see also Bunch v. Thompson, 949 F.2d 1354, 1364 (4th Cir. 1991). Thus, the
petitioner has failed to establish that the PCR court's decision was contrary to or an
unreasonable application of applicable Supreme Court precedent, and, accordingly,
summary judgment is appropriate with respect to this ground.
CONCLUSION
The Court ADOPTS the Magistrate Judge's Report and Recommendation [54], as
the order of this Court. Accordingly, Respondent's Amended Motion for Summary
Judgment [33] is GRANTED.
Certificate of Appealability
The governing law 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 the standard by demonstrating that
reasonable jurists would find this Court's assessment of his constitutional claims 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
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legal standard for the issuance of a certificate of appealability has not been met.
Therefore, a certificate of appealability is DENIED.
IT IS SO ORDERED.
s/ Donald C. Coggins, Jr.
United States District Judge
August 8, 2018
Spartanburg, South Carolina

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