Frazier v. South Carolina, State of

Filing 62

ORDER adopting the 49 Report and Recommendation, granting 20 summary judgment for Respondent, dismissing the 1 Petition with prejudice, denying Petitioner's 53 , 60 motions to amend the Petition and for an evidentiary hearing and denying a certificate of appealability. Signed by Honorable Cameron McGowan Currie on 11/24/2020. (lbak)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Johnnie Frazier,

C/A No. 1:18-1511-CMC

Petitioner,
v.
1

Order

Warden of Lieber Correctional Institution ,
Respondent.
This matter is before the court on Petitioner’s pro se application for writ of habeas corpus,
filed in this court pursuant to 28 U.S.C. § 2254. ECF No. 1. In accordance with 28 U.S.C. §
636(b) and Local Civil Rule 73.02 (B)(2), DSC, this matter was referred to United States
Magistrate Judge Shiva V. Hodges for pre-trial proceedings and a Report and Recommendation
(“Report”).
Respondent filed a motion for summary judgment, as well as a return and memorandum of
law on September 24, 2018. ECF Nos. 19, 20. A Roseboro Order was mailed to Petitioner the
same day, advising him of the importance of a dispositive motion and the need to file an adequate
response. ECF No. 21. When no response was received, the Magistrate Judge entered an order
directing Petitioner to advise the court whether he wished to continue the case and warning him of
the possibility of dismissal for failure to prosecute if he failed to respond. ECF No. 23. Initially,
Petitioner did not timely respond and the Magistrate Judge entered a Report recommending
dismissal for failure to prosecute. ECF No. 25. The court then received Petitioner’s objections to

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Petitioner notes he is now housed at Perry Correctional Institution.

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the Report, explaining he was having difficulty responding due to the lockdown at his facility.
ECF No. 27. The court therefore declined to adopt the Report and granted Petitioner an extension
of time to respond to the motion for summary judgment. ECF No. 28. Petitioner then filed a
response in opposition to summary judgment. ECF No. 30. The Magistrate Judge issued a Report
recommending the motion for summary judgment be granted based on the statute of limitations.
ECF No. 31. Petitioner filed a letter after receipt of the Report (ECF No. 33), and this court then
adopted the Report and dismissed the application for writ of habeas corpus based on the statute of
limitations (ECF No. 36).
On August 31, 2020, Petitioner filed a motion for reconsideration, contending the statute
of limitations was incorrectly calculated because he sought rehearing in the South Carolina Court
of Appeals following his direct appeal, which further tolled the statute of limitations. ECF No. 40.
As Respondent had represented there was no request for rehearing, the court ordered Respondent
to advise the court whether a request for rehearing was filed in the South Carolina Court of Appeals
following the direct appeal in 2010, and to file copies of the request for rehearing and denial, if
any. ECF No. 41. Respondent filed a reply, noting he located the request for rehearing and denial
and attaching same. ECF No. 43. Based on these documents, Respondent conceded Petitioner’s
§ 2254 petition was timely filed. Id. The court therefore granted the motion for reconsideration,
reopened the case, and re-referred the case to the Magistrate Judge for a recommendation on the
merits of the summary judgment motion. ECF No. 45.
On September 29, 2020, the Magistrate Judge issued a Report recommending that
Respondent’s motion for summary judgment be granted on the merits. ECF No. 49. The
Magistrate Judge again advised Petitioner of the procedures and requirements for filing objections
to the Report and the serious consequences if he failed to do so. Petitioner filed timely objections
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on October 13, 2020. ECF No. 55. Respondent filed a reply. ECF No. 58. Petitioner also filed a
motion to amend/correct his petition (ECF No. 53) and Respondent filed a response in opposition
(ECF No. 57). In addition, Petitioner filed a motion for evidentiary hearing and reply. ECF No.
60. Respondent filed a response in opposition to the motion for evidentiary hearing. ECF No. 61.
Standard
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 Matthews 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 28
U.S.C. § 636(b). The court reviews 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 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.”) (citation omitted).
Discussion
I.

Merits of Petitioner’s Claims

The Magistrate Judge recommends granting Respondent’s motion for summary judgment
on all grounds. ECF No. 49. The grounds raised by Petitioner are ineffective assistance of counsel
for: (1) failure to request an alibi charge; (2) failure to object to “golden rule” argument in the
State’s closing argument; (3) failure to introduce exculpatory evidence (DNA found at crime
scene); and (4) failure of counsel to advise Petitioner of his right to testify. Id. at 7 (citing Petition
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at 5-10). The Report recommends dismissal of Grounds two and four as procedurally barred,
because they were not raised or ruled upon in Petitioner’s direct appeal or PCR, and Petitioner did
not argue cause to excuse the default in his response to summary judgment. Id. at 17. The Report
therefore finds Petitioner abandoned those grounds. Id. at 18.
Ground one is timely and not procedurally barred; however, the Report recommends
dismissal because the state court did not unreasonably apply established precedent or base its
decision on an unreasonable determination of the facts. Id. Specifically, the Report found the trial
transcript indicates Petitioner was not entitled to an alibi charge, as no witness testified with any
certainty to Petitioner’s whereabouts during the time the home invasion was committed. Id. at 21.
In addition, the Report concluded the PCR’s determination that Petitioner failed to establish
prejudice to show ineffective assistance of counsel was supported by the record. Id. Therefore,
Petitioner failed to demonstrate counsel was ineffective in failing to request an alibi instruction,
and the Report recommends dismissal. Id. at 22.
Although Respondent asserted Ground three is procedurally barred, the Report addressed
the merits in an abundance of caution. The PCR court found the evidence was not exculpatory
and thus Petitioner failed to show he was prejudiced by counsel’s allegedly ineffective failure to
introduce the DNA evidence. The Magistrate Judge determined this was not an unreasonable
application of precedent or an unreasonable determination of the facts; therefore, the Report
recommends dismissal of this ground. Id. at 24-25.
Petitioner objects to the Report. ECF No. 55. He contends the PCR court erred when
finding trial counsel was effective although he failed to ask for an alibi jury instruction, several
key witnesses were not investigated by defense counsel, and the state’s case against him was
circumstantial with no eye witnesses or direct evidence placing him at the crime scene. He asserts
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he was at a different place during the crime and should have received an alibi charge. Id. at 1-3.
He also contends a witness who testified against him lied and his attorney did not object. Id. at 4.
His prior bad acts should have been excluded, he argues, because such evidence was overly
prejudicial. Petitioner argues the solicitor asked the jurors to place themselves in the victim’s
shoes, thus violating the golden rule prohibition. Id. at 5. Finally, he contends his attorney did not
inform him of his right to testify which “would have been crucial for my defense.” Id. at 9. Thus,
he asserts, his counsel was ineffective, and he was denied a meaningful defense. Notably, he does
not set forth any argument regarding procedural default or cause to excuse it.
Petitioner also filed a letter enclosing documents regarding his PCR action, containing the
grounds argued. ECF No. 54. Attached is the Second Amended Application for Post Conviction
Relief in the South Carolina state court, alleging 10 grounds. ECF No. 54-1 at 3-4. Included are
grounds asserting ineffective assistance of trial counsel for “failure to effectively communicate to
[Petitioner] his right to testify and failure to have the Court instruct the Defendant as to his right
to testify or remain silent,” and “failure to object to ‘Golden Rule’ argument in State’s closing
argument.” Id. at 4.
Respondent filed a reply, arguing grounds not raised in the original application and
therefore not before the Magistrate Judge, but only in Petitioner’s motion to amend2, should not
be reviewed. ECF No. 58. He also contends Petitioner withdrew his claim regarding advice on
the right to testify at the state PCR hearing, as related to Ground four of the Petition, and thus it is
procedurally defaulted. Id. at 2. He asserts Petitioner’s objections should be overruled and the
Report adopted. Id.

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See Section II, infra.
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a. Ground One
In Ground one, Petitioner argues his trial counsel was ineffective because he failed to
request the court instruct the jury on alibi. The Report recommends dismissal of this ground
because the state court did not unreasonably apply Supreme Court precedent or base its decision
on an unreasonable determination of the facts. The PCR judge found: “[t]he record clearly shows
that an alibi charge was not warranted at Applicant’s trial because there was no evidence or
testimony in the record that definitively accounted for Applicant’s whereabouts between 7 a.m.
and 10 a.m. on the morning of the home invasion and murder.” ECF No. 19-3 at 191-92. As the
South Carolina Supreme Court has held any gap in the relevant time frame precludes an alibi
charge, the court agrees the PCR court’s determination Petitioner was not entitled to an alibi charge
is correct. Petitioner provides no information to alter this conclusion.
Petitioner has not shown counsel was ineffective for failing to request the alibi jury charge
under the standard in Strickland v. Washington, 466 U.S. 668, 694 (1984) as applied in the habeas
context. Harrington v. Richter, 562 U.S. 86, 88 (2011) (“Surmounting Strickland’s high bar is
never an easy task . . . establishing that a state court’s application of Strickland was unreasonable
under § 2254(d) is all the more difficult.”) The Report is therefore adopted on this issue, and
ground one is dismissed with prejudice.
b. Ground Two
The second ground concerns trial counsel’s failure to object to the state’s “golden rule”
argument in closing, which asks jurors to place themselves in the victim’s shoes. Petitioner
contends this failure constitutes ineffective assistance of counsel. Respondent, however, argues
this claim was procedurally defaulted, and the Report determined this ground was abandoned
because Petitioner did not address procedural default or cause in his response to the summary
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judgment motion. ECF No. 49 at 17-18. In his objections, Petitioner attaches the Second Amended
Application for Post-Conviction Relief, which lists as grounds for relief “(h) Ineffective assistance
of counsel – failure to object to ‘Golden Rule’ argument in State’s closing argument.” ECF No.
54-1 at 4.3
In an abundance of caution, the court will address the merits of this ground and determine
if the PCR court unreasonably applied Supreme Court precedent or based its decision on an
unreasonable determination of the facts. The PCR court found the solicitor’s alleged “golden rule”
comment in his closing argument did not warrant an objection, as it did not “have the effect of
arousing the jury’s fears and prejudices.” ECF No. 19-3 at 201-02.4 He noted the statement was
not accusatory, did not mention Petitioner by name, its syntax was in a “general sense,” and the
comment was in rebuttal to defense counsel’s cross-examination regarding an absence of factors
that would speed rigor mortis. Id. at 202. Even assuming the statement identified constituted an

3

The court also notes this Second Amended Petition was contained in the Return and
Memorandum at ECF No. 19-3 at 121-22. It is unclear why Respondent has taken the position
Ground two was procedurally defaulted.
4

The statement objected to by Petitioner was as follows:
[Counsel] wants to make a big argument about the time of death and rigamortus
[sic], I don’t know, he started talking about they brought the coroner, if the coroner
explains it better than Dr. Sexton, I don’t know, Dr. Sexton said you could die
standing up in combat. I assume that is from trauma and stress of being in that
situation. I don’t know how long it lasted. But I will tell you this, if you are
standing in your own house and someone comes in with a gun and says, I am taking
your money and you know it is somebody that you know, you know it is somebody
you know what do you think she would feel like. Don’t you think every muscle in
her body got rigid like this before she got killed, that she was exhausted in those
few minutes it took from the time they came in and the time that bullet was through
her brain, you be the judge of that.

ECF No. 19-3 at 201-02 (citing Trial Tr. at 520:8-19) (emphasis added).
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impermissible “golden rule” argument, the PCR court found, based on a previous South Carolina
Supreme Court case, Petitioner failed to show counsel was ineffective or that he was prejudiced
by counsel’s performance. Id. at 203.
Petitioner points to no Supreme Court precedent the PCR court failed to apply or applied
unreasonably. By reiterating his substantive argument, that the solicitor should not ask jurors to
place themselves in the victims’ shoes, he appears to assert the PCR court made an unreasonable
determination of the facts. However, the PCR court fully explained its reasoning, and does not
appear to have made an unreasonable determination of the facts. The court agrees Petitioner has
not established his trial counsel was deficient in failing to object to the statement in closing
argument. Therefore, Ground two is dismissed with prejudice.
c. Ground Three
Petitioner argues in Ground three counsel was ineffective for failing to introduce into
evidence cigarettes found near the victim’s abandoned vehicle that did not contain Petitioner’s
DNA. The Magistrate Judge again concluded the PCR court did not unreasonably apply Supreme
Court precedent or base its decision on an unreasonable determination on the facts. The PCR court
concluded the cigarette butts “were not exculpatory because they were discovered on property
often used by the general public, and there was a significant duration between [the vehicle’s]
abandonment and subsequent discovery by the police.” ECF No. 19-3 at 195. Therefore, the PCR
court reasoned, Petitioner failed to prove the second prong of Strickland – that he was prejudiced
by counsel’s performance. Id. at 196.
The court agrees Petitioner has failed to show prejudice and has submitted no information
on which to reach a different conclusion. The Report is therefore adopted on this issue, and Ground
three is dismissed with prejudice.
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d. Ground Four
Ground four concerns trial counsel’s failure to fully explain to Petitioner his right to testify
at his criminal trial. Respondent argued this ground was procedurally defaulted, and the Magistrate
Judge explained a review of the record “shows these grounds were not raised to, nor ruled upon in
Petitioner’s direct appeal to the Court of Appeals or in his PCR appeal.” ECF No. 49 at 17. As
Petitioner did not argue cause to excuse the default or otherwise address Ground four in his
response in opposition to summary judgment, the Report found he abandoned this issue.
Petitioner submitted his Second Amended Application for Post-Conviction Relief, which
lists as grounds for relief “(g) Ineffective assistance of counsel – failure to effectively communicate
to Applicant his right to testify and failure to have the Court instruct the Defendant as to his right
to testify or remain silent.” ECF No. 54-1 at 4.5 However, the PCR transcript reflects Petitioner
decided “he would like to forgo that” and so item (g), regarding his right to testify, was withdrawn.
ECF No. 19-3 at 159. As the issue was withdrawn, the PCR court did not rule on it and the ground
is procedurally defaulted. The court adopts the Report on this ground, and it is dismissed with
prejudice.
II.

Motion to Amend Petition for Writ of Habeas Corpus

The court considers Petitioner’s motion to amend his Petition, in which he lists nine
grounds for habeas relief. ECF No. 53. He does not actually request to amend the Petition, but
merely sets forth the nine grounds and explains each briefly. Respondent has filed a response in
opposition, noting the first four grounds in Petitioner’s “Amended Application” are the same as

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The court also notes this was contained in the Return and Memorandum at ECF No. 19-3 at 12122.
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those in his pending Petition, and arguing grounds 5-9 are untimely and barred by the statute of
limitations. ECF No. 57. Further, he contends claims 5-8 were raised in Petitioner’s state court
PCR action but were not properly exhausted through the PCR appeal. He requests the motion be
denied as futile.
Habeas Rule 2(c) notes a petition “must specify all the grounds for relief available to
petitioner.” 28 U.S.C. § 2242 states habeas applications “may be amended . . . as provided in the
rules of procedure applicable to civil actions.” Fed. R. Civ. P. 15(a) allows amendment of
pleadings with leave of court at any time during the proceeding.
However, a one-year statute of limitations applies to habeas petitions under § 2254.
Amendments made after the statute of limitations relate back to the date of the original pleading
only if the grounds arise out of the same conduct, transaction, or occurrence as the original petition.
See Mayle v. Felix, 545 U.S. 644, 656 (2005). However, this does not mean any grounds that could
be raised as attacking the same “trial, conviction, or sentence” will relate back. Id. at 664. Instead,
as long as the “original and amended petitions state claims that are tied to a common core of
operative facts, relation back will be in order.” Id.
The court agrees Petitioner’s “Amended Application,” construed as a motion to amend his
Petition for writ of habeas corpus, is untimely. First, the additional claims not previously brought
are outside the statute of limitations, as noted by Respondent. Although these grounds would have
been timely if filed with the initial Petition in June 2018, after over two additional years the statute
of limitations has expired, as it is not tolled by the timely filing of a habeas action. Duncan v.
Walker, 533 U.S. 167, 181-82 (2001) (“We hold that an application for federal habeas corpus
review is not an ‘application for State post-conviction or other collateral review’ within the
meaning of 28 U.S.C. § 2244(d)(2). Section 2244(d)(2) therefore did not toll the limitation period
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during the pendency of respondent’s first federal habeas petition.”). The Amended Application
does not state a sufficient basis to permit relation back of the additional claims Petitioner seeks to
add, as they are not tied to a common core of operative facts – each ground relates to a different
set of facts about the criminal conviction that Petitioner’s counsel allegedly failed to raise. See
Samples v. Ballard, 860 F.3d 266, 275 (4th Cir. 2017) (“[Petitioner’s] express reliance on these
four claims of ineffective assistance of counsel are to the exclusion of other claims of ineffective
assistance of counsel.”).
Second, Petitioner may not simply file an “Amended Application” at this stage in the
litigation. This Petition has been pending since June 2018, and at no time in the past two and onehalf years did Petitioner evince a need to add additional grounds to his Petition. If the court were
to allow these additions, it would require an amended summary judgment motion from
Respondent, further briefing, and an additional or supplemental Report from the Magistrate Judge.
The prejudice to Respondent would be significant, and it appears the amendment would be futile
due to the statute of limitations. See Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir.
1999) (“[L]eave to amend a pleading should be denied only when the amendment would be
prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the
amendment would be futile.”). Therefore, the court denies Petitioner’s motion to amend his
Petition, and will not consider the additional grounds raised in the “Amended Application.”
III.

Motion for Evidentiary Hearing

Petitioner requests an evidentiary hearing to show the claims presented in his motion to
amend were not filed outside the statute of limitations. ECF No. 60. He argues the Assistant
Attorney General made an error in the tolling calculation and had this case dismissed on an error.
Therefore, he argues, his additional claims would not be untimely. Respondent filed a response in
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opposition, arguing an evidentiary hearing is not warranted because resolution may be based on
the records before the court, and thus Petitioner has not met the standard for an evidentiary hearing.
Although the statute of limitations was previously miscalculated in this case because the
court did not have knowledge of Petitioner’s motion for rehearing of his criminal conviction when
this case was originally reviewed, that does not mean new claims raised in the motion to amend
filed October 2, 2020, are timely. As noted above, these claims would have been filed within the
statute of limitations if filed with the original Petition. However, they do not relate back to that
date of filing, and are therefore untimely and barred by the statute of limitations. Petitioner’s
motion for evidentiary hearing is denied.
Conclusion
For the reasons above, the court adopts the conclusions of the Report, grants summary
judgment for Respondent, and dismisses the Petition with prejudice. Petitioner’s motions to amend
the Petition (ECF No. 53) and for an evidentiary hearing (ECF No. 60) are denied.
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 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,

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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. Therefore, a certificate of appealability is denied.
IT IS SO ORDERED.
s/Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
November 24, 2020

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