Sims v. Stevens

Filing 50

ORDER accepting 40 Report and Recommendation; granting Respondent's 17 Motion for Summary Judgment; denying Petitioner's 21 Motion to Amend; and dismissing the Petition with prejudice. Signed by Honorable J Michelle Childs on 2/26/2016. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Keith A. Sims, #314569,

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Petitioner,
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v.
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Robert Stevenson, Warden, Broad River
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Correctional Institution,
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Respondent.
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____________________________________)

Civil Action No.: 1:14-cv-04661-JMC

ORDER AND OPINION

Petitioner Keith Sims (“Petitioner”) filed this pro se Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 alleging ineffective assistance of counsel, defective indictment, and
lack of subject matter jurisdiction. (ECF No. 1). This matter is before the court on Respondent’s
Motion for Summary Judgment (ECF No. 17) and Petitioner’s Motion to Amend Petition for Writ
of Habeas Corpus (ECF No. 21).
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to
United States Magistrate Judge Shiva Hodges, for pre-trial handling. On November 30, 2015, the
Magistrate Judge issued a Report and Recommendation (“Report”) recommending the court grant
Respondent’s Motion for Summary Judgment and deny the Petition. (ECF No. 40). This review
considers Petitioner’s Objections to Report and Recommendation (“Objections”), filed February
12, 2016. (ECF No. 49).
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The court concludes upon its own careful review of the record that the factual and
procedural summation in the Magistrate Judge’s Report is accurate, and the court adopts this
summary as its own. (See ECF No. 40). The court will only recite herein facts pertinent to the

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analysis of Petitioner’s Objections.
Petitioner is currently incarcerated at the Broad River Correctional Institution within the
South Carolina Department of Corrections (“SCDC”).
In February 2004, the Richland County Grand Jury issued an indictment charging
Petitioner with murder. (ECF No. 40 at 3). A jury trial was held on March 20-24, 2006, before
the Honorable G. Thomas Cooper, Jr. (Id.). The jury found Petitioner guilty as charged, and
Petitioner was sentenced to 40 years imprisonment. (Id.) On October 22, 2007, Petitioner,
represented by appellate counsel, filed a direct appeal of his conviction and sentence in the South
Carolina Court of Appeals raising only one issue: whether the trial judge committed reversible
error by allowing a State’s witness to testify that a third party told her Petitioner “murdered
somebody.” (Id.) On April 17, 2008, the Court of Appeals filed a decision affirming the
conviction. Subsequently, on May 22, 2008, the Court of Appeals denied Petitioner’s request for
rehearing. (Id. at 4). On August 12, 2008, Petitioner filed a petition for writ of certiorari. The
South Carolina Supreme Court granted certiorari on March 19, 2009. The Supreme Court issued
an order on May 17, 2010, affirming in result the Court of Appeals decision affirming Petitioner’s
conviction. (Id.)
Subsequently, on March 21, 2011, Petitioner filed an Application for Post-Conviction
Relief (“PCR”), which was dismissed on October 18, 2012, following an evidentiary hearing.
(Id.). On November 15, 2012, Petitioner filed a motion to alter or amend the order of dismissal.
(Id. at 5). The motion to alter or amend was denied on February 13, 2013. Petitioner, through
counsel, timely filed a Johnson 1 petition for writ of certiorari. Petitioner also filed a pro se brief
on November 14, 2013, raising additional issues. (Id.) On September 11, 2014, the South Carolina

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See Johnson v. State, 364 S.E.2d 201 (S.C. 1988).
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Supreme Court issued an order denying the petition and relieving counsel of the duty to represent
Petitioner. (Id. at 6)
Petitioner filed the instant habeas Petition on December 9, 2014, alleging nine grounds for
relief: (1) due process violation and ineffective assistance of counsel for allowing a state’s witness
to testify to a non-testifying third party’s hearsay statement; (2) due process violation and
ineffective assistance of counsel for Petitioner being constitutionally deprived of the ability to put
forth a complete defense; (3) ineffective assistance of counsel for failing to object to the State’s
closing argument which evaluated the credibility of witnesses against the defendant; (4) defective
indictment and prosecutorial misconduct; (5) ineffective assistance of counsel for failing to object
to admission of irrelevant evidence and failure to move for a mistrial after evidence was
disallowed; (6) ineffective assistance of counsel for failing to object to a burden shifting jury
instruction; (7) ineffective assistance of counsel for failing to object to testimony on Petitioner’s
invocation of his constitutional rights; (8) ineffective assistance of counsel for failing to move to
dismiss the case for lack of subject matter jurisdiction and personal jurisdiction; and (9) ineffective
assistance of post-conviction relief counsel for failure to pursue certain claims. (ECF No. 1 at 611, 16-20). Respondent filed a Motion for Summary Judgment and Return and Memorandum of
Law in Support of Motion for Summary Judgment on April 20, 2015. (ECF Nos. 17, 18). On
August 12, 2015, the court entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), advising Plaintiff of the summary judgment procedures and the time period for filing a
response. (ECF No. 30). Petitioner filed a response in opposition on August 12, 2015. (ECF No.
39).
On November 30, 2015, the Magistrate Judge issued the Report recommending the court
grant Respondent’s Motion, dismiss the Petition, and deny Petitioner’s Motion to Amend. (ECF

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No. 40.) The Magistrate Judge found that Grounds One, Two, and Eight are procedurally barred
because Petitioner failed to raise them properly throughout earlier stages of review. (Id. at 17).
Specifically, the Magistrate Judge found that Grounds One and Two are challenges to evidentiary
rulings by the trial court, and because Petitioner failed to raise them on direct appeal, they are
procedurally barred from federal habeas review. Alternatively, the Magistrate Judge found that
Grounds One and Two are procedurally barred because they address state law issues. The
Magistrate Judge also found that Ground Eight is procedurally barred because Petitioner did not
raise it in his PCR appeal. (Id. at 18). The Magistrate Judge determined that Petitioner could not
demonstrate prejudice for the default or that a miscarriage of justice would result from the court’s
failure to review Petitioner’s procedurally defaulted claims. (Id. at 19-20).
With respect to Ground Three—ineffective assistance of counsel for failing to object to the
solicitor’s closing argument—the Magistrate Judge determined that Petitioner cannot demonstrate
that the PCR court unreasonably misapplied the law in rejecting Petitioner’s claims for ineffective
assistance of counsel. Further, the Magistrate Judge determined that in light of the weight of the
evidence and the extent of the solicitor’s comments, the comments made by the solicitor did not
render Petitioner’s trial fundamentally unfair. Additionally, the Magistrate Judge noted that
Petitioner has failed to establish that there is a reasonable probability that the result of the
proceeding would have been different if trial counsel objected. (Id. at 23). Thus, the Magistrate
Judge found that Petitioner failed to carry his burden to demonstrate that the PCR court misapplied
the law regarding ineffective assistance of counsel.
In Ground Four, Petitioner alleges that his indictment was defective because the grand jury
did not meet during the term of court stamped on the indictment. The Magistrate Judge determined
that state indictments and state court subject matter jurisdiction are not cognizable on federal

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review. (Id.) Thus, the Magistrate Judge recommends that this court grant summary judgment in
favor of Respondent as to Ground Four. (Id. at 24).
In Ground Five, Petitioner asserts that his trial counsel was ineffective for failing to object
to the trial court’s admission of irrelevant evidence and for failing to move for a mistrial once the
evidence was disallowed. The Magistrate Judge’s review of the record indicates that trial counsel
testified that she objected when the solicitor introduced the ammunition into evidence, but the
evidence was admitted over her objection. (Id. at 24). Further, the Magistrate Judge agreed with
the PCR court’s determination that trial counsel’s failure to request a curative instruction or move
for a mistrial was not objectively unreasonable. (Id. at 26). The Magistrate Judge determined that
the Petitioner cannot carry his burden to demonstrate that the PCR court unreasonably applied
federal law in deciding his ineffective assistance of counsel claim. (Id. at 26).
In Ground Six, Petitioner alleges that his counsel was ineffective for failing to object to a
burden shifting jury instruction that allowed the jury to infer malice from the use of a deadly
weapon. (Id. at 27). The PCR court determined that the charge was appropriate based on the law
in place at the time of Petitioner’s trial. (Id. at 28). The Magistrate Judge agreed, and determined
that Petitioner cannot show that the PCR court’s analysis of the issue misapplied clearly
established federal law. (Id. at 29).
With respect to Ground Seven—ineffective assistance of counsel for failing to object to
testimony on Petitioner’s invocation of his constitutional rights—the Magistrate Judge found that
the PCR court did not unreasonably apply federal law. The PCR court found that trial counsel’s
decision not to object to witness testimony indicating Petitioner asked for a lawyer was a
reasonable trial strategy because it “bolstered Petitioner’s defense theory that he was traumatized
and shot the victim out of fear for his life.” (Id. at 31). The Magistrate Judge determined that

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courts must be wary of second guessing trial counsel’s tactics where counsel articulates a valid
reason for employing the strategy and the conduct is not objectively reasonable under the
circumstances. (Id.) Accordingly, the Magistrate Judge concluded that Petitioner has failed to
show by clear and convincing evidence that the PCR court reached an unreasonable factual
determination given the evidence and record before it. (Id.)
In Ground Nine Petitioner alleges that his PCR counsel was ineffective for failing to pursue
a claim of ineffectiveness of appellate counsel. The Magistrate Judge determined that the federal
role in reviewing an application for habeas corpus is limited to evaluating what occurred in
proceedings that led to Petitioner’s conviction. (Id. at 32). Federal review does not extend to the
Petitioner’s collateral proceedings. Accordingly, the Magistrate Judge determined that Ground
Nine should be denied and dismissed with prejudice. (Id.)
Finally, the Magistrate Judge determined that Petitioner’s Motion to Amend (ECF No. 21)
should be denied as futile.
Petitioner timely filed his Objections on February 12, 2016. 2 (ECF No. 49.)
II. LEGAL STANDARD AND ANALYSIS
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.
recommendation to this court.

The Magistrate Judge makes only a

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

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On February 1, 2016, the court entered a text order granting Petitioner’s Motion for Extension of Time to
File Response. (ECF No. 47).

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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).
Objections to a Report and Recommendation must specifically identify portions of the
Report and the basis for those objections. Fed. R. Civ. P. 72(b). “[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, 316 (4th Cir. 2005) (quoting Fed. R. Civ.
P. 72 advisory committee’s note). Failure to timely file specific written objections to a Report will
result in a waiver of the right to appeal from an Order from the court based upon the Report. 28
U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 155 (1985); Wright v. Collins, 766 F.2d 841
(4th Cir. 1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984). If the petitioner fails
to properly object because the objections lack the requisite specificity, then de novo review by the
court is not required.
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).
Petitioner filed extensive Objections, largely consisting of detailed explanations of relevant
case law. With respect to Grounds Three, Four, Five, Six, Seven, and Nine, Petitioner does not
properly object to the Magistrate Judge’s findings of fact or conclusions of law. Furthermore,
Petitioner does not object to the Magistrate Judge’s finding that his motion to amend is futile.
However, with respect to Grounds One, Two, and Eight—the procedurally barred grounds—
Petitioner objects to the Magistrate Judge’s findings that he did not properly preserve these

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grounds for habeas review. Petitioner asserts that Ground Two was properly presented to the PCR
court and later raised in his Johnson petition. (ECF No. 49 at 15-16). Further, Petitioner asserts
that Ground Eight was ruled on by the PCR judge in his motion to alter or amend, and that he
raised the issue in his Johnson petition. (Id. at 51). Finally, Petitioner repeatedly states that he is
unsure whether the court made a finding of procedural bypass because he did not have access to a
federal record (Id. at 11).
Although Petitioner has outlined his objections to the Report in great detail, with respect
to Grounds Three, Four, Five, Six, Seven, and Nine, Petitioner has failed to demonstrate how the
Magistrate Judge’s reasoning is incorrect. Petitioner has also failed to demonstrate that the
Magistrate Judge’s conclusion with respect to his motion to amend is improper. Because Petitioner
failed to properly object to the Report with specificity as to the motion to amend and
aforementioned grounds, the court does not need to conduct a de novo review and instead must
“only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.” Diamond, 416 F.3d at 315. The court does not find clear error.
With respect to Grounds One, Two, and Eight, this court has conducted a de novo review,
and finds that the Magistrate Judge properly concluded that these grounds are procedurally
defaulted. The Magistrate Judge determined that because the aforementioned grounds were not
properly raised in earlier state proceedings, this court cannot consider them. See Smith v. Murry,
477 U.S. 527, 533 (1986). Under South Carolina law, an issue is not preserved where it was not
raised to and ruled on by a PCR judge. See Humbert v. State, 548 S.E.2d 862, 866 (S.C. 2001).
Further, issues that could have been reviewed on direct appeal cannot be presented for the first
time in a PCR application absent a claim for ineffective assistance of counsel. Drayton v. Evatt,
430 S.E.2d 517, 520 (S.C. 1993).

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As a threshold matter, Petitioner seems to assert that he did not have access to the federal
record in order to properly respond to Respondent’s claims. Based on Petitioner’s representations,
it is not clear to this court whether Petitioner’s former habeas counsel provided Petitioner with the
motion for summary judgment and accompanying records. (See ECF No. 42). However, Petitioner
was able to file an extensive response to the motion for summary judgment detailing his claims
and the supporting law. Petitioner was also served with the Report and Recommendation of the
Magistrate Judge (see ECF No. 41) such that he was able to file extensive objections. Accordingly,
this court finds that Petitioner was not prejudiced in his ability to present his claims to the court or
respond to the Report of the Magistrate Judge.
Contrary to the Magistrate Judge’s findings, Petitioner contends that he properly preserved
Grounds One, Two, and Eight for habeas review. In Ground One, Petitioner asserts that his due
process rights were violated and that his trial counsel was ineffective where a witness was
permitted to testify regarding statements made by a non-testifying witness.

Following his

conviction, Petitioner, through counsel, filed a direct appeal contesting the trial judge’s decision
to permit the hearsay testimony. Ultimately, the Supreme Court of South Carolina found that the
trial court’s decision to permit the inadmissible hearsay testimony was harmless error, and
affirmed Petitioner’s conviction. (ECF No. 18-4 at 145). Petitioner did not reassert the issue in
his application for PCR nor in his motion to alter or amend following the PCR court’s ruling.
Because Petitioner did not present the issue asserted in Ground One of his habeas petition to the
PCR court, the Magistrate Judge was correct in determining that Ground One is procedurally
defaulted.
Second, in Ground Two, Petitioner asserts that his due process rights were violated and
that his counsel was ineffective in that a favorable witness was not permitted to testify at his trial,

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and as such, Petitioner contends that he was prohibited from presenting a complete defense.
Although Petitioner presented the claim as an ineffective assistance of counsel claim in his original
PCR application, during the hearing, Petitioner asserted that the claim was not about trial counsel’s
errors. (ECF No. 18-4 at 178). Petitioner also stated that the claim did not concern his appellate
counsel’s failure to raise the issue on appeal. (ECF No. 18-4 at 179). As a result, the PCR court
found that the issue should have been raised at trial or on direct appeal. Because the issue was not
presented on direct appeal, the PCR judge found that Petitioner waived the right to review, and
denied relief on that allegation. (ECF No. 18-6 at 7-8). Petitioner again raised the issue as a due
process violation in his motion to alter or amend, (ECF No. 18-5 at 5), which was denied by the
PCR court. Accordingly, this court finds that though Petitioner raised Ground Two in his PCR
application, the issue was not properly raised on direct appeal, so this court cannot consider the
issue. Furthermore, the trial court’s decision to prohibit Petitioner from calling the favorable
witness was an evidentiary decision based on South Carolina law, and as such, not cognizable on
federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (noting that federal
habeas courts are limited to deciding whether a conviction violated the Constitution, laws, or
treaties of the United States and are not to review state-court decisions for questions of state law.)
Therefore, the Magistrate Judge was correct in determining that Ground Two is procedurally
defaulted.
Finally, in Ground Eight, Petitioner alleges that the trial court did not have subject matter
nor personal jurisdiction such that it was improper for the Richland County court to convict and
sentence Petitioner. Petitioner did not raise the claim made in Ground Eight on direct appeal, nor
did he raise the claim in his PCR application and evidentiary hearing. Petitioner first raised the
claim made in Ground Eight in his motion to alter or amend the PCR court’s order dismissing his

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petition. (ECF No. 18-5 at 6). Because Ground Eight was not properly raised in his PCR
application or to the PCR court prior to its initial ruling, the claim is not reviewable by this court.
Accordingly, the Magistrate Judge properly found that Ground Eight was procedurally defaulted.
In accordance with the foregoing, this court adopts the recommendation of the Magistrate
Judge.
III. CONCLUSION
Based on the aforementioned reasons and a thorough review of the Report of the Magistrate
Judge and the record in this case, the court ACCEPTS the Report of the Magistrate Judge (ECF
No. 40). It is therefore ordered that Respondent’s Motion for Summary Judgment (ECF No. 17)
is GRANTED. Petitioner’s Motion to Amend (ECF No. 21) is DENIED, and this Petition (ECF
No. 1) is DISMISSED 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.

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United States District Judge
February 26, 2016
Columbia, South Carolina

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