Smith v. Reynolds
Filing
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ORDER granting 20 Motion for Summary Judgment; adopting Report and Recommendations re 27 Report and Recommendation. Signed by Honorable David C Norton on September 26, 2016. (rweh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
TERRANCE V. SMITH, #311818,
Petitioner,
vs.
CECILIA REYNOLDS, Warden of Lee
Correctional Institution,
Respondent.
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No. 1:15-CV-2996-DCN-SVH
ORDER
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This matter is before the court on United States Magistrate Judge Shiva V.
Hodges’ report and recommendation (“R&R”). The magistrate judge recommends that
the court grant respondent Warden Cecelia Reynolds’ (“respondent”) motion for
summary judgment and deny the petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. For the reasons set forth below, the court adopts the R&R, denies the petition,
and grants respondent’s motion for summary judgment.
I. BACKGROUND1
Petitioner Terrance V. Smith (“petitioner”) was indicted by a Lexington County
grand jury during the May 2002 term of court for attempted armed robbery (2002-GS-321405), criminal conspiracy (2002-GS-32-1406), and murder (2002-GS-32-1407). During
the February 2003 term of court, petitioner was indicted for first-degree burglary (2003GS-32-743), possession of a firearm during commission of a violent crime (2002-GS-32-
1
Because petitioner does not have any objections to the procedural background
and history as fully set forth in the magistrate judge’s R&R, the court will dispense with a
lengthy recitation thereof and will direct the parties to pages 1 through 5 of the R&R.
See Pet’r’s Obections 1; R&R 1–6. The court will only provide an overview of the
procedural background of this case.
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745), assault and battery with intent to kill (“ABWIK”) (2003-GS-32-746), and ill
treatment of an animal (2003-GS-32-1109). ECF Nos. 19-4 at 2–3, 7–8, 13–14, 16–17,
21–22, 25–26; 21. Petitioner was represented by Jonathan R. Hendrix, Esq. and Michael
R. Ellisor, Esq., and proceeded to a jury trial on April 28 to May 2, 2003, before the
Honorable Marc H. Westbrook, Circuit Court Judge. ECF No. 19-1 at 7. The jury found
petitioner guilty of attempted armed robbery, criminal conspiracy, murder, first-degree
burglary, possession of a firearm, and ABWIK, and acquitted petitioner of ill treatment of
an animal. ECF No. 19-2 at 374–75. Judge Westbrook sentenced petitioner to life in
prison without the possibility of parole. Id. at 393.
Petitioner appealed his conviction and sentences to the South Carolina Court of
Appeals (“Court of Appeals”). ECF No. 19-5. On appeal, petitioner was represented by
Mary P. Miles, Esq. ECF No. 19-6. On November 30, 2005, the Court of Appeals filed
an unpublished decision affirming petitioner’s conviction. ECF No. 19-3 at 8–9. The
remitter was issued on December 16, 2005. Id. at 10.
Petitioner filed an application for post-conviction relief (“PCR”) on October 31,
2006, in which he alleged the following claims: (1) ineffective assistance of counsel,
(2) prosecutorial misconduct, (3) unconstitutional sentence, and (4) due process violation.
Id. at 11–20. On January 30, 2013, petitioner filed an amended PCR application raising a
trial court error claim and additional claims of ineffective assistance of counsel. Id. at
71–72. A PCR evidentiary hearing was held before the Honorable Frank W. Addy, Jr.,
Circuit Court Judge, on April 15–16, 2013, at which petitioner and his counsel, Tara D.
Shurling, Esq., appeared. Id. at 74–349. On April 2, 2014, Judge Addy filed an order of
dismissal. Id. at 411–25. Petitioner filed a motion to alter or amend on April 24, 2014.
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Id. at 427–34. On May 12, 2014, Judge Addy filed an order modifying the court’s April
2, 2014 order of dismissal. Id. at 435–36.
On or about June 10, 2014, petitioner filed a timely notice of appeal from the PCR
court’s denial of his application. ECF No. 19-7. Jeremy A. Thompson, Esq. represented
petitioner on appeal, and on or about November 5, 2014, filed a petition for writ of
certiorari in the Supreme Court of South Carolina. ECF No. 19-8 at 3. On June 17,
2015, the Supreme Court of South Carolina denied the petition for writ of certiorari. ECF
No. 19-11. The remittitur was issued on July 6, 2015. ECF No. 19-12.
Petitioner filed this federal petition for a writ of habeas corpus on July 28, 2015.
ECF No. 1-3 at 2. Petitioner raises the following three grounds for relief:
Ground One: Petitioner’s 6th and 14th [Amendment]
rights of the United States Constitution were violated
because of ineffective assistance of counsel.
Supporting Facts: Please see Pet’r’s Resp. 2-3
Ground Two: Petitioner’s 5th and 14th [Amendment]
rights of the United States Constitution were violated
because of due process Brady violation.
Supporting Facts: Please see Pet’r’s Resp. Pages 3-4
Ground Three: Petitioner’s 6th and 14th [Amendment]
rights of the United States Constitution were violated due
to ineffective assistance of counsel.
Supporting Facts: Please see Pet’r’s Resp. Page 5
ECF No. 1 at 5–8 (emphasis added).
On December 2, 2015, respondent moved for summary judgment. Smith filed a
response in opposition on February 19, 2016. Pet’r’s Resp. On April 18, 2016, the
magistrate judge issued an R&R, determining that Grounds One, Two, and Three were
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meritless. See R&R. Ultimately, the magistrate judge recommended that the court
dismiss Smith’s petition with prejudice and grant respondent’s motion for summary
judgment. R&R 1. Smith has filed an objection to the R&R and the matter is ripe for the
court’s review.
II. STANDARD OF REVIEW
A.
De Novo Review
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s R&R to which specific, written objections are made. 28 U.S.C.
§ 636(b)(1). The court may adopt the portions of the R&R to which the petitioner did not
object, as a party’s failure to object is accepted as agreement with the conclusions of the
magistrate judge. Thomas v. Arn, 474 U.S. 140, 149–50 (1985). The recommendation of
the magistrate judge carries no presumptive weight, and it is this court’s responsibility to
make a final determination. Mathews v. Weber, 423 U.S. 261, 270–71 (1976).
B.
Section 2254
This court has jurisdiction under 28 U.S.C. § 2254 to hear a petition for a writ of
habeas corpus made by a person imprisoned pursuant to a state court proceeding. The
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides relief to a
person in custody pursuant to the judgment of a state court if the custody is “in violation
of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
AEDPA imposes a one-year statute of limitations period that begins to run on the date a
petitioner’s conviction becomes final. 28 U.S.C. § 2244(d)(1); Harris v. Hutchinson, 209
F.3d 325, 327 (4th Cir. 2000).
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Under South Carolina law, in a federal petition for habeas relief, a petitioner may
present only those issues that were presented to the highest South Carolina court through
direct appeal or through an appeal from the denial of a PCR application, regardless of
whether the court actually reached the merits of the claim. See S.C. App. Ct. R. 203;
S.C. Code Ann. § 17-27-90; Blakeley v. Rabon, 221 S.E.2d 767, 770 (S.C. 1976).
Federal habeas corpus relief may not be granted on any claim that was
adjudicated on the merits in the state court unless the state court determination:
(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 fact in light of the
evidence presented in the state court proceeding.
28 U.S.C. § 2254 (d)(1), (2). A state court’s decision is contrary to clearly established
federal law “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 differently than th[e]
Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S.
362, 413 (2000). Moreover, a state court’s decision involves an unreasonable application
of clearly established federal law when the state court “identifies the correct governing
legal principle from [the Supreme] Court’s decisions but unreasonably applies that
principle to facts of [a particular] case.” Id.
Under AEDPA , a federal court affords deference to a state court’s resolution of a
state prisoner’s habeas claims. See Bell v. Cone, 543 U.S. 447, 455 (2005). To obtain a
writ of habeas corpus 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
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that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington v. Richter, 131 S.Ct. 770, 786–87
(2011). “[E]ven a strong case for relief does not mean the state court’s contrary
conclusion was unreasonable.” Id. at 786.
1.
Exhaustion
Further, absent cause and prejudice, or a fundamental miscarriage of justice, “a
federal habeas court may not review unexhausted claims that would be treated as
procedurally barred by state courts.” Longworth v. Ozmint, 377 F.3d 437, 447–48 (4th
Cir. 2004). The statute requires a petitioner to exhaust available remedies in state court
before the federal court may consider a claim. 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). The petitioner
must “give the state courts one full opportunity to resolve any constitutional issues by
invoking one complete round of the State’s established appellate review process” and
“fairly present[] to the state court both the operative facts and the controlling legal
principles associated with each claim.” Longworth, 377 F.3d at 448. In other words,
“[t]he exhaustion doctrine bars a claim if it is raised for the first time in a federal habeas
petition.” Mickens v. Taylor, 240 F.3d 348, 356 (4th Cir. 2001) (en banc).
2.
Procedural Bar
Federal habeas courts will not hear claims that are procedurally defaulted by the
failure of the petitioner to present the claim in the highest state court with jurisdiction to
hear the claim and the claim is not procedurally barred in that court. Coleman v.
Thompson, 501 U.S. 722, 749-50 (1991). Claims may also be procedurally defaulted if a
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state court declined to consider the merits of the claim on the basis of independent and
adequate state procedural rules. Yeatts v. Angelone, 166 F.3d 255, 260 (4th Cir. 1999).
A state law is independent if it does not depend upon a federal constitutional ruling. Ake
v. Oklahoma, 470 U.S. 68, 75 (1985). For a state law ground to be adequate, it must be
applied regularly or consistently. Johnson v. Mississippi, 486 U.S. 578, 587 (1998);
Brown v. Lee, 319 F.3d 162, 169 (4th Cir. 2003). Procedural default is an affirmative
defense in habeas cases and the burden rests with the state. Jones v. Sussex I State
Prison, 591 F.3d 707, 716 (4th Cir. 2010); Yeatts, 166 F.3d at 261. Procedural default
may be excused where the prisoner can show “cause” and “actual prejudice” or that
failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750; Schulp v. Delo, 513 U.S. 298, 314 (1995); Bostic v.
Stevenson, 589 F.3d 160, 164 (4th Cir. 2009). A “fundamental miscarriage of justice” is
generally considered to occur when “a constitutional violation has probably resulted in
the conviction of one who is actually innocent.” Id. 477 U.S. at 495.
3. Summary Judgment
Summary judgment shall be granted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). Where a party “fails to make a showing sufficient to establish the
existence of an element essential to his case,” Rule 56(a) mandates entry of summary
judgment against that party. Celotex v. Catrett, 477 U.S. 317, 322 (1986). In deciding
whether there is a genuine issue of material fact, the evidence is viewed in the light most
favorable to the nonmoving party with all justifiable inferences drawn in its favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
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III. DISCUSSION2
A.
Ground Two
In Ground Two, petitioner alleges a Brady violation took place and he was denied
his right to a fair trial when the state failed to disclose the true nature of the government’s
plea agreement with Wykeshia Williams (“Williams”), a cooperating codefendant. ECF
No. 1 at 19. Although respondent argues petitioner procedurally defaulted on his claim in
Ground Two, she also contends the claim is without merit. ECF No. 19 at 34–37. The
magistrate judge conducted a merits review on this claim and recommends that the court
hold petitioner has not shown by clear and convincing evidence that the PCR court
reached an unreasonable factual determination on this issue, and petitioner has failed to
show he was prejudiced by the state’s direct examination of Williams regarding when her
pending charges were dismissed. R&R 17–20. Petitioner objects to the magistrate
judge’s recommendation, arguing that the R&R does not address any factual findings
regarding the plea agreement the state’s plea agreement with Williams, other than to state
that “[t]he undersigned finds Petitioner has not shown by clear and convincing evidence
that the PCR court reached an unreasonable factual determination on this issue.” Pet’r’s
Objections 2 (quoting R&R 19). Petitioner objects because he “cannot determine what
‘proposed findings of facts and recommendations for the disposition’ of each claim are
contained within the Report.” Id. (quoting 28 U.S.C. § 636(b)(1)(B)).
“A Brady violation occurs when the government fails to disclose evidence
materially favorable to the accused.” Youngblood v. West Virginia, 547 U.S. 867, 869
(2006) (per curiam). Evidence is material if a reasonable probability exists “that, had the
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The court will first address Ground Two and then consolidate Grounds One and
Three.
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evidence been disclosed to the defense, the result of the proceeding would have been
different.” Id. at 870 (quoting Strickler v. Greene, 527 U.S. 263, 280 (1999)). However,
a showing of materiality requires a “showing that the favorable evidence could
reasonably be taken to put the whole case in such a different light as to undermine
confidence in the verdict.” Id. (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)).
The assessment of materiality is made in light of the entire record. United State v. Argus,
427 U.S. 97, 112 (1976).
“An individual asserting a Brady violation must demonstrate that evidence:
(1) favorable to the accused; (2) in possession of or known by the prosecution; (3) was
suppressed by the State; and (4) was material to the accused’s guilt or innocence or was
impeaching.” Riddle v. Ozmint, 631 S.E.2d 70, 44 (2006).
A state “denies a defendant due process by knowingly offering or failing to
correct false testimony.” Badsen v. Lee, 290 F.3d 602, 614 (4th Cir. 2002). A claim
along the lines of prosecutorial misconduct requires a showing of falsity and materiality
of testimony and the prosecutor’s knowledge of its falsity. See id. False testimony is
material when “there is any reasonable likelihood that the false testimony could have
affected the judgment of the jury.” Boyd v. French, 147 F.3d 319, 329–30 (4th Cir.
1998) (quoting Kyles, 514 U.S. at 433).
Petitioner argues the State’s “failure to disclose, or correct Williams on the true
agreement is a clear due process violation.” ECF No. 1 at 20. During the PCR hearing,
the solicitor testified about Williams’ plea agreement and stated the following:
To the best of my memory, she was going to plead to
burglary first, and an attempted armed robbery, and I
believe a conspiracy charge. And the other charges were
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going to be dismissed provided she give truthful testimony
during the trial of the co-defendants, Collins and Smith.
ECF No 19-3 at 278. The solicitor further testified as follows:
Q.
Would you agree that the way the question was
posited to this witness would give the jury the
impression that the murder indictment was - - the
murder charge was gone, that it was a done deal?
A.
Yes, I guess it would have. I don’t know. I mean,
the agreement was that the charges were going to be
dismissed
Q.
I understand that. But it doesn’t say that in the
transcripts. And the transcript says, “And those
charges – to ask about you were originally charged
with murder?” “Yes, sir.” “And there were some
other attempted armed robbery charges?”
“Yes, sir.”
“And those charges have been
dismissed?” “Yes, sir.” So my question is, by
saying they have been dismissed, would that not
lead the jury to believe that those charges were
gone, that they had been dismissed?
A.
I guess the question was not artfully asked, yes,
ma’am.
Id. at 298. The PCR court denied this claim, finding petitioner “failed to show any basis
to believe that there were negotiations between Williams and the prosecution other than
what was presented at trial.” Id. at 416.
In his response, petitioner claims the strength of the state’s case relied, in large
part, upon Williams’ testimony and alleges there is a reasonable probability that the jury
would have acquitted petitioner had they known that the prosecutor could resume his
prosecution of Williams for murder if she did not testify favorably for the state at trial.
ECF No. 26 at 26.
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The court agrees with the magistrate judge that the petitioner has not shown by
clear and convincing evidence that the PCR court reached an unreasonable factual
determination on this issue. See Evans v. Smith, 220 F.3d 306, 312 (4th Cir. 2000)
(holding that federal habeas relief will not be granted on a claim adjudicated on the
merits by the state court unless it 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(e)(1) (stating the determination of a factual issue by the state court shall
be presumed correct unless rebutted by clear and convincing evidence). The court finds
the distinction of whether the charge would be dismissed or had been dismissed was
immaterial because the jury was aware that, in exchange for her testimony at trial,
Williams received a substantial benefit.
Additionally, the court agrees with the magistrate judge that petitioner has failed
to show how he was prejudiced by the state’s direct examination of Williams regarding
when her pending charges were dismissed because the evidence of petitioner’s guilt at his
trial was overwhelming. Two witnesses identified petitioner as one of the gunmen, ECF
No 19-1 at 316–18, 379–83, and codefendant Ivan Collins’s (“Collins”) testimony placed
petitioner at Charles Penny’s house at the time of the shooting, ECF No. 19-2 at 244–49,
265–66. Based on the foregoing, the court finds Ground Two fails on the merits.
B. Grounds One and Three
Grounds One and Three of the petition allege ineffective assistance of counsel.
ECF No. 1 at 5, 8. The Sixth Amendment provides not only the right to counsel, but the
right to the effective assistance of competent counsel. Hoffman v. Leeke, 903 F.2d 280,
285 (4th Cir. 1990) (citing Powell v. Alabama, 287 U.S. 45, 48 (1932)). Ineffective
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assistance of counsel claims are governed by standards established in Strickland v.
Washington, 466 U.S. 668 (1984). To prevail on an ineffective assistance claim, a
petitioner must show (1) his attorney’s performance fell below an objective standard of
reasonableness and (2) he suffered prejudice. Id. at 688, 694.
A determination need not be made concerning the attorney’s performance if it is
clear that no prejudice resulted. See id. at 697. To prove prejudice, a petitioner must
demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. Petitioner must show
that the “acts and omissions” of counsel were, in light of all the circumstances, “outside
the range of professionally competent assistance.” Id. at 690. Such a determination
“must be highly deferential,” with a “strong presumption that counsel’s conduct falls
within the wide range of professional assistance.” Id. at 689. A petitioner must also
overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy. Id. at 689.
In the context of a 28 U.S.C. § 2254 proceeding, it is not enough to convince a
federal habeas court that, in its independent judgment, the state-court decision applied
Strickland incorrectly. Bell v. Cone, 535 U.S. 685, 699 (2002). A petitioner must show
that the state court applied Strickland to the facts of the case in an objectively
unreasonable manner. Id.
a. Ground One
In Ground One, petitioner alleges his counsel was ineffective in failing to crossexamine Williams about the potential minimum and maximum sentences she faced for
her dismissed charges and the charges to which she pleaded guilty. ECF No. 1 at 16.
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The magistrate judge recommends the court hold that petitioner cannot satisfy the
Strickland test because there is not a substantial likelihood that petitioner’s trial would
have been different had trial counsel specifically questioned Williams regarding the
maximum and minimum sentences she faced as a result of her plea agreement with the
state. R&R 17. The magistrate judge also recommends the court hold that petitioner has
failed to show that the state court’s analysis of this issue misapplied clearly established
federal law or, even if the court did err, that it was unreasonable. R&R 17. Petitioner
objects to the magistrate judge’s R&R because it does not discuss counsel’s performance.
Pet’r’s Objections 2.
Regarding his cross-examination of Williams, trial counsel testified that he could
not recall considering whether to question Williams on her understanding of the
minimum penalty she could receive for first-degree burglary or if he had a strategy for
not doing so. ECF No. 19-3 at 90–91. He further testified about the pending murder
charge, stating that it was “obvious that she was getting some kind of consideration for
her cooperation and testimony.” ECF No 19-2 at 129.
The PCR court found the claim to be without merit because trial counsel
conducted a thorough cross-examination of Williams and attacked her credibility with her
prior forgery conviction and fraudulent marriage to a Chinese drug dealer whom she was
paid to keep in the country. Tr. P. 833, line 10-p. 835, line 3. The PCR court further
stated that petitioner had not met his burden of showing that his counsel was ineffective
because trial counsel’s cross-examination did not fall below that expected of a reasonable
attorney and counsel’s performance did not fall below professional norms.
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The court agrees with the magistrate judge that petitioner’s claim of ineffective
assistance for failing to more vigorously cross-examine Williams on her plea deal is
without merit. Petitioner cannot satisfy the Strickland test. The PCR court reasonably
found that counsel’s failure to cross-examine Williams about her potential sentences did
not affect the outcome of the trial. Petitioner has failed to show that the state court’s
analysis of this issue misapplied clearly established federal law. Therefore, the court
finds Ground One fails on the merits.
b. Ground Three
In Ground Three, petitioner alleges he was denied effective assistance of counsel
when his trial counsel failed to request a self-defense jury charge after Collins testified.
ECF No. 1 at 21. The magistrate judge recommends the court hold that petitioner cannot
satisfy the Strickland test and has failed to establish that the PCR court was unreasonable
in finding that the defense available to petitioner under Collins’s testimony was mere
presence, and not self-defense. R&R 22. The magistrate judge also recommends the
court hold that 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. R&R 22. Petitioner objects to the magistrate judge’s
recommendation because the Report’s findings do not discuss his counsel’s performance.
Pet’r’s Objections 2.
At the PCR hearing, trial counsel testified that he did not recall considering
whether to request a jury charge of self-defense but thought it would have been
appropriate to do so. ECF No. 19-3 at 175. The PCR court denied the claim, finding
“counsel was focused on a defense that Applicant was not there and misidentified
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. . . . Collins’[s] testimony would support self-defense and perhaps defense of others, but
that was Collins’[s] defense, not Applicant’s. Applicant’s defense under those facts
would be mere presence.” Id. at 423. The PCR court also found that “Applicant was not
prejudiced by the failure to instruct the jury on self-defense or defense of other and
counsel’s performance was not deficient.” Id.
Collins testified that he and his cohorts did not go to the apartments to commit a
robbery, but instead went because Williams wanted to go. Id. Collins further testified
that Williams went inside while petitioner and Collins waited in the car. Id.
Additionally, around twenty minutes later, petitioner went to check on Williams and
ended up in a struggle with another man after he knocked on the door. Id. Collins also
testified that, during the struggle, Collins approached and saw a man with a gun in the
doorway who fired at him, and he fired back, striking the man. Id.
The court instructed the jury on mere presence as follows:
[M]ere presence at the scene of a crime is not enough to
prove someone guilty of a crime. The burden is upon the
state to prove every element of the crime charged. So if
you find after reviewing all of the evidence that the state
has proven that a defendant was only present at the scene of
the crime and that they have [sic] not proven beyond a
reasonable doubt any other participation in the crime[,]
then you must find that dependent is not guilty.
PCR App. 852, ll 9–19.
The court agrees with the magistrate judge that petitioner cannot satisfy the
Strickland test and did not show that the PCR court’s decision was contrary to or
involved an unreasonable application of clearly established federal law. Based on the
evidence, petitioner did not show that the PCR court’s finding—that the defense available
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to him from Collins’s testimony was mere presence, not self-defense—was unreasonable.
Therefore, the court finds Ground Three fails on the merits.
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IV. CONCLUSION
For the reasons set forth above, the court ADOPTS the magistrate judge’s R&R,
DENIES the petition for writ of habeas corpus, and GRANTS respondent’s motion for
summary judgment.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED
because petitioner has failed to make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
September 26, 2016
Charleston, South Carolina
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