Mintz v. McCabe
ORDER ADOPTING 29 REPORT AND RECOMMENDATION, granting respondent's motion for summary judgment 18 and denying the habeas petition. It is FURTHER ORDERED that a certificate of appealability is denied. Signed by Honorable Joseph F Anderson, Jr on 9/18/2012. (abuc) Modified to edit text on 9/19/2012 (abuc).
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Warden Wayne C. McCabe, Warden of
Lieber Correctional Institution,
C/A No 1:11-1270-JFA-SVH
The petitioner, Levon Mintz, is an inmate with the South Carolina Department of
Corrections. He brings this action through counsel pursuant to 28 U.S.C. § 2254 challenging
his 2003 state court conviction for murder. He asserts that the trial court erred in charging
the jury, that the prosecutor’s comments in closing arguments at trial violated his
constitutional rights, and that his state trial counsel was ineffective.
The Magistrate Judge assigned to this action1 has prepared a thorough Report and
Recommendation (“the Report”) and opines that the respondent’s motion for summary
judgment should be granted. The Report sets forth in detail the relevant facts and standards
of law on this matter, and the court incorporates such without a recitation and without an
The Magistrate Judge’s review is made in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil
Rule 73.02. 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. Mathews
v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of those portions
of the Report and Recommendation to which specific objection is made, and the court may accept, reject,
or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter to the
Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1).
The petitioner was advised of his right to file objections to the Report and
Recommendation, which was entered on the docket on August 1, 2012. The petitioner filed
timely objections to the Report. This court heard argument on the pending motions in this
case on September 12, 2012. Thus, this matter is ripe for review.
Factual and Procedural History
The Report recites the factual and procedural background giving rise to this action.
Briefly, the petitioner was found guilty by a jury of murder and sentenced on April 20, 2005
to 50 years imprisonment. The petitioner did not file a direct appeal of his conviction.
Petitioner then filed an application for post-conviction relief (PCR) raising claims of
ineffective assistance along with due process and constitutional violations. On September
3, 2008, the PCR court granted petitioner’s request to file a belated direct appeal, while
denying petitioner’s other grounds for relief. Petitioner thereafter filed a SCRCP Rule 59(e)
motion to alter or amend and that motion was dismissed on October 6, 2008.
Petitioner timely appealed and filed a petition for writ of certiorari on July 1, 2009.
He raised three issues concerning (1) the correctness of the PCR judge in finding that
petitioner was entitled to file a belated direct appeal; (2) whether the PCR judge erred in
refusing to find counsel ineffective for stipulating to portions of the pathologist’s report
concerning the cause of death, but failing to include the stipulation that the decedent was
under the influence of cocaine and alcohol; and (3) whether the trial judge erred in refusing
to charge the jury on the lesser included offense of voluntary manslaughter. On October 25,
2010, the South Carolina Supreme Court dismissed the PCR appeal and the belated direct
appeal. The remittitur was issued on November 10, 2010.
On November 8, 2010, the petitioner filed another state habeas action in the South
Carolina Supreme Court, which was dismissed on December 1, 2010. On November 24,
2010, petitioner filed a second PCR application in state circuit court. The present petition
in federal court was filed on May 26, 2011.
Motion to Stay Petition and Hold in Abeyance
The Magistrate Judge recommends that the petitioner’s motion to stay his present
federal petition pending exhaustion of his second PCR application in state court should be
denied as moot because the second PCR was dismissed in an order filed on August 3, 2012.
In his objections to the Report, the petitioner submits that the court should stay this
action to permit him to continue to pursue an appeal of the denial of his second PCR prior
to finally concluding this action. Petitioner argues that the state courts have found that
petitioner has raised a federally cognizable claim of ineffective assistance of belated direct
appeal counsel. In her order of August 3, 2012, the Honorable DeAndrea G. Benjamin found
that the petitioner had a constitutional right to belated direct appeal counsel and that the
petitioner’s claim was not successive or barred by the statute of limitations. Judge Benjamin
did find that the claims were not meritorious. Therefore, the petitioner intends to appeal that
decision to the South Carolina Supreme Court. However, at a hearing on petitioner’s motion
to stay and hold in abeyance the instant petition, petitioner admitted to the court that he had
not yet filed the appeal though Judge Benjamin’s order was issued more than a month prior
to the hearing before this court.
This petition is technically not a mixed petition under Rhines v. Weber, 544 U.S. 269
(2005), because it does not explicitly include the unexhausted claims (which were just before
the state PCR court and which the petitioner intends to appeal), but the petitioner contends
that if this court grants his motion to stay and amend the petition, then those unexhausted
claims can be amended into the federal § 2254 petition. This would make the instant petition
a mixed petition amenable to the Rhines stay and abeyance procedure.
For the reasons stated by this court at the September 12th hearing on this issue, the
court adopts the Magistrate Judge’s recommendation and denies the motion to stay and hold
in abeyance the instant petition.
28 U.S.C. § 2254 Standard of Review
In a § 2254 action, the standard of review to be applied is quite deferential to the
rulings of the state courts. Pursuant to the standards set forth in 28 U.S.C. § 2254, a federal
court may not grant a writ of habeas corpus with respect to a claim adjudicated on the merits
in state court proceedings unless the state court’s 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
in the State court proceeding. 28 U.S.C. § 2254(d)(1) & (2); Burch v. Corcoran, 273 F.3d
577, 583 (4th Cir. 2001).
The Supreme Court has explained that a State court adjudication is “contrary” to
clearly established federal law, only if “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if the state court decides a case
differently than [the Supreme] Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). An unreasonable application is different from
an incorrect application of federal law, the former being the requisite showing. Therefore,
this court may not issue the writ even if it concludes in its own independent review, that the
relevant state court merely made an incorrect or erroneous application of the correct federal
Demonstrating that a state court’s decision is unreasonable requires
overcoming “a substantially higher threshold” than simply demonstrating error. Schriro v.
Landigran, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). “When assessing
the reasonableness of the state court’s application of federal law, the federal courts are to
review the result that the state court reached, not whether [its decision] [was] well reasoned.”
Larry v. Branker, 552 F.3d 356, 365 (4th Cir. 2009) (citing Wilson v. Ozmint, 352 F.3d 847,
855 (4th Cir. 2003)).
Trial Court’s Failure to Charge the Offense of Voluntary Manslaughter
The Magistrate Judge opines that petitioner’s Ground 1 is procedurally barred because
it was not raised in his direct appeal or first PCR appeal. At the September 12 th hearing,
petitioner admitted that this issue is one of state law and withdrew it. As such, the court need
not address Ground 1.
Prosecutor’s Comments During Closing Argument
As petitioner has withdrawn his reliance on the Eighth Amendment for this argument,
the Magistrate Judge limited her scope of review to the petitioner’s argument that his Fifth
and Fourteenth Amendment rights were violated by the solicitor’s comments during closing
arguments that petitioner could have introduced evidence, but chose not to do so. Petitioner
contends that the solicitor’s closing remarks unconstitutionally commented on petitioner’s
right to remain silent and not present a defense.
As noted in the Report and Recommendation, the South Carolina Supreme Court
granted certiorari on this issue but ultimately denied petitioner relief. The respondent argues
that the state court’s determination was not unreasonable. The Magistrate Judge agrees with
the respondent that the solicitor’s reference to the tape of Witness Brooks during the trial was
a reference of testimony already in the record. Further, the Magistrate Judge agrees that even
if the solicitor’s arguments could be construed as a comment upon petitioner’s right, the
comment was not used as substantive evidence of petitioner’s guilt, rather, it was in response
to defense counsel’s allegations that the state failed to disclose Brooks’ statement to the
defense prior to trial. Ultimately, the Magistrate Judge finds that the South Carolina
Supreme Court did not unreasonably apply federal law or make an unreasonable
determination of the facts when it addressed this claim.
The petitioner objects to the Magistrate Judge’s comment that petitioner has taken a
“strained position” and argues that the Report fails to take into account the fact that Witness
Brooks testified extensively that she actually wrote a statement, gave the handwritten
statement to Detective Rivers, and kept a copy for herself. Petitioner contends that defense
counsel was not confused about the source of the statement when he raised his objection to
the solicitor’s closing argument. Rather, petitioner contends the solicitor was confused about
the source of the dispute, and that does not permit the solicitor to argue that petitioner was
hiding evidence of the recorded interview from the jury when the petitioner and his attorney
never did so. Again, petitioner asserts that the solicitor’s argument violated petitioner’s
constitutional rights under the Fifth and Fourteenth Amendment and the Report’s findings
are predicated on a gross misinterpretation of the facts which requires a de novo review by
This court agrees with the Magistrate Judge and adopts her recommendation to
dismiss the claim in Ground 2. The court further agrees with the Magistrate Judge’s finding
that the South Carolina Supreme Court did not unreasonably apply federal law or make an
unreasonable determination of the facts when it addressed this claim. The solicitor’s closing
remarks were made to address defense counsel’s insinuation during the cross examination
of Witness Rivers that some of the evidence had never been turned over to the defense.
There was evidence in the record that defense counsel did have a statement by Brooks. The
closing remarks were not a comment on petitioner’s guilt, or his right to remain silent, and
the court disagrees with petitioner’s assertion that the solicitor’s closing remarks violated
petitioner’s constitutional rights under the Fifth and Fourteenth Amendments.
Ineffective Assistance of Counsel
In Ground 3, petitioner contends that counsel was ineffective for failing to require that
the victim’s toxicology report be included in the stipulation to the jury stating that the victim
died as a result of the gunshot wounds. Petitioner argues that if counsel had included the
toxicology report, which would have shown the victim was under the influence of cocaine
and alcohol at the time of his death, then that would have supported petitioner’s request for
a jury charge on voluntary manslaughter.
The PCR court agreed with defense counsel’s testimony that the evidence would not
have warranted a voluntary manslaughter charge because the issue of the victim’s cocaine
and alcohol use was not relevant to the facts of the case. The Magistrate Judge opines that
the state courts did not unreasonably apply federal law under Strickland v. Washington, 466
U.S. 668, 694 (1984), and further opines that the courts did not make an unreasonable
determination of the facts in addressing this claim.
The petitioner objects to the Magistrate Judge’s conclusion that counsel was not
ineffective for failing to present evidence of the decedent’s alcohol and cocaine use the night
of the incident.
Petitioner argues that the “sudden heat of passion” (which requires
demonstration) would have been provided by the prior arguments between the petitioner and
the decedent, independent of the toxicology evidence. Further, petitioner submits that the
jury could have found that the decedent acted in an overt and threatening manner toward the
petitioner if the decedent had cocaine and alcohol in his system.
Respondent contends that this claim should be denied as premised upon the
interpretation of state law, namely whether petitioner was entitled to an instruction on
voluntary manslaughter in light of the additional evidence contained within the toxicology
The court finds the Magistrate Judge’s conclusion correct and dismisses Ground 3.
As previously stated, the standard in § 2254 actions is quite deferential to state courts, and
petitioner has failed to overcome that standard with respect to his ineffective assistance of
counsel claim. Petitioner has failed to show the state court unreasonably applied federal law
when it found that counsel’s performance was not ineffective for failing to include the
toxicology report within the stipulation.
A voluntary manslaughter charge requires
demonstration of either sudden heat of passion or sufficient legal provocation. The evidence
from the toxicology report showing alcohol and cocaine in the victim’s system is not enough
to demonstrate sudden heat of passion or sufficient legal provocation in light of other facts,
such as the fact that petitioner shot the victim when he was unarmed and being helped to his
The court has carefully reviewed all of the objections made by the petitioner and has
conducted the required de novo review. This court determines that the Magistrate Judge’s
recommended disposition is correct. Accordingly, the objections are all overruled and the
Report and Recommendation is incorporated herein by reference. The respondent’s motion
for summary judgment (ECF No. 18) is granted and the habeas petition is denied.
Because the defendant has failed to make “a substantial showing of the denial of a
constitutional right,” a certificate of appealability is denied. 28 U.S.C. § 2253(c)(2).2
IT IS SO ORDERED.
September 18, 2012
Columbia, South Carolina
Joseph F. Anderson, Jr.
United States District Judge
A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2) (West 2009). A prisoner satisfies this standard by demonstrating that
reasonable jurists would find both that his constitutional claims are debatable and that any dispositive
procedural rulings by the district court are also debatable or wrong. 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).
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