Taylor v. State et al

Filing 57

ORDER adopting 48 Report and Recommendation, as modified; granting 31 Motion for Summary Judgment; and dismissing the habeas petition. A certificate of appealability is DENIED. Signed by Honorable Richard M Gergel on 9/22/2014.(ssam, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA

Therl Taylor, #260961,
Petitioner,
vs.
Warden at Allendale,
Respondent.

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No. 2:l 3-cv-22 13-RMG

ORDER

This matter comes before the Court on the Report and Recommendation (R & R) of the
Magistrate Judge (Dkt. No. 48), recommending that Respondent's Motion for Summary
Judgment be granted and the habeas petition be dismissed. For the reasons stated below, the
Court ADOPTS the R & R, as modified, GRANTS Respondent's Motion for Summary
Judgment, and DISMISSES the habeas petition.

I. Bacground
In January of 1999, a Grand Jury indicted Petitioner for murder and possession of a
weapon during the commission of a violent crime. (Dkt. No. 30-27 at 169). Petitioner's initial
conviction was reversed by the South Caroline Supreme Court, which found that the trial court
improperly instructed the jury on mutual combat and that the error was prejudicial. State v.

Taylor, 589 S.E.2d 1 (S.C. 2003). Petitioner was retried in January of 2005. The jury convicted
Petitioner of murder and possession of a weapon during the commission of a violent crime. (Dkt.
No. 30-27 at 25). Petitioner was sentenced to thirty-six years on the murder conviction and five
years, concurrent, on the conviction for possession of a weapon during the commission of violent
crime. (Id. at 39).

Petitioner appealed his conviction. (Dkt. Nos. 30-1, 30-2). The South Carolina Court of
Appeals dismissed the appeal and remitted the matter on October 26, 2007. (Dkt. Nos. 30-3, 305). The South Carolina Court of Appeals refused to accept a petition for rehearing because it was
untimely, and the South Carolina Supreme Court denied Petitioner's request to have the Court of
Appeals act on the petition of rehearing and denied Petitioner's request to file a petition for writ
of certiorari. (Dkt. No. 30-6). The Court of Appeals also denied a "Motion to Recall/Reinstate
the Remittitur," and the South Carolina Supreme Court denied a later petition for writ of certiori.
(Dkt. Nos. 30-7,30-9).
On September 25, 2008, Petitioner filed an application for post-conviction relief (PCR),
raising various ineffective assistance of counsel claims. (Dkt. No. 30-27 at 45-53). On April 16,
2010, the PCR court dismissed Petitioner's application in its entirety. (Dkt. No. 30-27 at 134167). Petitioner filed a Motion to Reconsider (Dkt. No. 30-13 at 25-34), which was denied on
April 15,2010. (Id. at 35).
Petitioner appealed the PCR court's ruling and raised ineffective assistance of counsel
claim(s). (See Dkt. Nos. 30-11, 30-12). The South Carolina Court of Appeals denied the petition
on July 25,2013, and denied a petition for rehearing on September 23,2013. (Dkt. Nos. 30-14,
30-18). The South Carolina Supreme Court dismissed Petitioner's Petition for Writ of Certiorari.
(Dkt. No. 30-20). The South Carolina Court of Appeals remitted the matter on October 21,2013.
(Dkt. No. 30-21).
Petitioner filed this Petition for Writ of Habeas Corpus on August 15,2013, and
supplemented his Petition on September 20,2013. (Dkt. Nos. 1, 13). Petitioner raises various
grounds for relief, most of them ineffective assistance of counsel claims. (See id.).
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The Magistrate Judge found that (a) Grounds 20,24 and 25 were procedurally barred, (b)
that Grounds 32-35 are not cognizable on habeas review, (c) that Grounds 29 and 36 failed to
comply with Rule 2(c), and (d) that the state court's rulings on the remaining issues were not
contrary to or an unreasonable application of Supreme Court precedent, and, therefore, Petitioner
was not entitled to habeas relief. (Dkt. No. 48). Petitioner filed timely objections. (Dkt. No.
54).

II. Legal Standard
A. Report & Recommendation
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, 270-71 (1976). The Court may "accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate." 28
U.S.C. § 636(b)(l). This Court is charged with making a de novo determination of those portions
of the R & R or specified proposed findings or recommendations to which objection is made.
Diamond v. Colonial Life & Ace. Ins. Co., 416 F.3d 310,315 (4th Cir. 2005) (quoting 28 U.S.C.

§ 636(b)(1)); accord Fed. R Civ. P. 72(b).
As to portions of the R & R to which no specific objection has been made, this Court
"must' only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.'" Id. (quoting Fed. R Civ. P 72 advisory committee note). Moreover, in the
absence of specific objections to the R & R, the Court need not give any explanation for adopting
the Magistrate Judge's analysis and recommendation. See Camby v. DaviS, 718 F.2d 198, 199200 (4th Cir. 1983).
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B. Federal Habeas Review
Petitioner's claims are governed by 28 U.S.C. § 2254(d), which provides that his petition
cannot be granted unless the claims "( I) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as detennined by the Supreme
Court of the United States; or (2) resulted in a decision that was based on an unreasonable
detennination of the facts in light of the evidence presented in the State court proceeding." 28
U.S.c. § 2254(d). "[A] federal habeas court may not issue the writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly. Rather, that application must also be
unreasonable." Williams v. Taylor, 529 U.S. 362,411 (2000). Importantly, "a detennination of a
factual issue made by a State court shall be presumed to be correct," and Petitioner has ''the
burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C.

§ 2254(e)(1 ).
C. Habeas Review of Ineffective Assistance of Counsel
Where allegations of ineffective assistance of counsel are made, the question is "whether
counsel's conduct so undennined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced ajust result." Strickland v. Washington, 466 U.S. 668,
686 (1984). First, the Petitioner must show that counsel made errors so serious that counsel's
perfonnance was below the objective standard of reasonableness guaranteed by the Sixth
Amendment. Id. at 687-88. Second, the Petitioner must show that "there is a reasonable
probability that, but for counsel's unprofessional errors, the result ofthe proceeding would have
been different." Id. at 694.
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"The standards created by Strickland and § 2254(d) are both highly deferential ... and
when the two apply in tandem, review is doubly so." Harrington v. Richter, 131 S.Ct. 770, 788
(2011). In applying § 2254(d), "the question is not whether counsers actions were reasonable.
The question is whether there is any reasonable argument that counsel satisfied Strickland's
deferential standard." ld.

III. Discussion
As an initial matter, Petitioner makes a number of conclusory, blanket objections to the R
& R and attempts to simply "incorporate" all of his filings before the Magistrate Judge. (See,

e.g., Dkt. No. 54 at 2 ("Petitioner specifically objects to the reasoning and interrruptation [sic] on
each and every ground raised and argued by Petitioner opposed by the R & R."); id. at 2
("Petitioner hereby re-incorporates the entire traverse, all presented Exhibits thus far and all the
record built up to this juncture.")). To the extent Petitioner fails to point to a specific error in the
R & R and simply makes conclusory objections, the Court need not conduct a de novo review.

Smith v. Washington Mut. Bank FA, 308 Fed.Appx. 707, 708 (4th Cir. 2009) ("The court need
not conduct de novo review ... 'when a party makes general and conclusory objections that do
not direct the court to a specific error in the magistrate's proposed findings and
recommendations."') (quoting Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982)).
Furthermore, "[t]o the extent that plaintiff intends that this Court sua sponte consider
prior argument not reiterated in specific objection to the magistrate judge's Report and
Recommendation, the Court declines to do so." Ramsey v. Comm'r o/Soc. Sec., No.
1:08-cv-240, 2009 WL 3242570 at * 1 (W.D. Mich. Sept. 30, 2009). "[S]uch duplicative
consideration by the district court would defeat the purpose and efficiency of consideration by the
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magistrate judge in the first instance." Id. Thus, this Court will consider "only the objections
specifically raised or discernable in [Petitioner's] Objections." Id.; accord Tauber v. Barnhart,
438 F. Supp. 2d 1366, 1373 (N.D. Ga. 2006) (declining to consider all arguments de novo simply
because a party "incorporated" prior breifing).

A. Procedurally Barred Claims - Grounds 24 and 25 1
A habeas petitioner must exhaust the remedies available to him in state court. 28 U.S.C.
§ 2254(b)( 1). This requires a habeas petitioner to "fairly present his claims to the state's highest
court." Matthews v. Evatt, 105 F 3d 907, 911 (4th Cir. 1997), overruled on other grounds by

United States v. Barnette, 644 F.3d 192 (4th Cir. 2011). Procedural bypass, sometimes referred
to as procedural bar or procedural default, occurs when a petitioner seeking habeas corpus relief
failed to the raise the issue asserted in his habeas petition at the appropriate time in state court.
Because the petitioner has no further means of raising the issue before the state courts, he is
considered to have bypassed his state court remedies and is, thus, procedurally barred from
raising the issue in a federal habeas proceeding. See Smith v. Murray, 477 U.S. 527,533 (1986);

Weeks v. Angelone, 176 F.3d 249, 272 n.l5 (4th Cir. 1999) ("A claim is procedurally defaulted
when it is rejected by a state court on an adequate and independent state procedural ground.").

1 The Magistrate Judge also found Ground 20 procedurally barred. (Dkt. No. 48 at 38).
The Court disagrees and finds that portions of Ground 20 are not procedurally barred. Thus, this
Ground is addressed separately below.

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It appears Petitioner did not raise Grounds 24 and 25, both ineffective assistance of
counsel claims, in his PCR proceeding? (See Dkt. No. 30~27 at 45-53). To the extent that they
were raised, they were not addressed by the PCR Court. (Dkt. No. 30-27 at 134-167). If the
PCR court fails to address a claim as is required by S.C. Code Ann. § 17-27-80, the applicant
must make a Rule 59(e) motion to preserve the issue on appeal. Marlar v. State, 653 S.E.2d 266,
267 (S.C. 2007). Here, Petitioner did file a Rule 59(e) motion, but he did not raise these two
issues in his motion. (See Dkt. No. 30-13 at 25-34). Because Petitioner did not do so, he failed
to fairly present his claim to South Carolina's appellate courts and bypassed his state court
remedies.
Petitioner objects to the Magistrate Judge's finding that these two issues were not raised
in his PCR proceedings. (Dkt. No. 54 at 20). However, he fails to point to any place in the
record where he raised them. (/d.). He also objects stating that he did file a Rule 59(e) motion.
(/d.). Again, the Court agrees that Petitioner made a Rule 59(e) motion, but he did not raise these
two grounds in that motion. There, these issues are procedurally barred from federal habeas
review unless Petitioner can show (1) cause for not complying with the state court's procedural
rule and actual prejudice resulting from the alleged constitutional violation or (2) a miscarriage
of justice. E.g., Yeatts v. Angelone, 166 F.3d 255, 260 (4th Cir. 1999). Petitioner has not made
any such showing. Therefore, summary judgment is appropriate. 3

Ground 24 states that trial counsel was ineffective for "withdrawing motion on page 20,
lines 3-9 of second trial transcript." (Dkt. No.1 at 20). Ground 25 states that trial counsel was
ineffective "by failing to act, request or object to the limited factually neutral charge approved in
Allen v. US." (/d.).
2

The Court also agrees with and adopts the R & R as to the merits of Ground 24. (See
Dkt. No. 48 at 41-42).
3

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B. Defects in peR Proceeding - Grounds 32, 33, 34, and 35
Petitioner raises the following issues concerning his PCR proceeding:
Ground Thirty-Two: Special Post Conviction Relief Judge Goldsmith failed to
properly provide Petitioner a Continuance.
Ground Thirty-Three: PCR Judge Goldsmith errored [sic] by not allowing
Petitioner to continue pro se representation.
(Dkt. No. I at 22).
Ground Thirty-Four: Special PCR Judge Goldsmith erroneously failed to grant
Petitioner some Relief at the appropriate opportunity based on Constitutional
Violations.
Ground Thirty-Five: Despite Petitioner's Pro Se representation he received gross
ineffective (11 th Hour) PCR counsel, violating his, including but not limited to
6th and 14th Amended Constitutional Rights.
(Dkt. No. 13 at 1).
However, because a state prisoner has no federal constitutional right to post-conviction
proceedings in state court, a petitioner is not entitled to federal habeas relief if there is some error
in the PCR proceedings. E.g., Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir. 2008). In
particular, "[t]he ineffectiveness or incompetence of counsel during Federal or State collateral
post-conviction proceedings shall not be a ground for relief in a proceeding arising under section
2254." 28 U.S.C. § 2254(i). Therefore, these claims are not cognizable in a federal habeas
action.
Petitioner argues that Martinez v. Ryan allows him to bring such claims. (Dkt. No. 54 at
25). However, Martinez "does not make such a free-standing claim cognizable." Boseman v.
Warden 0/ Lee Carr. Inst., No. 2:11-3265,2012 WL 5380636 (D.S.C. Sept. 24, 2012), adopted

by 2012 WL 5380701 (D.S.C. Oct. 31, 2012). Martinez held that a petitioner "could demonstrate
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sufficient cause to excuse a procedural default upon a showing that counsel in the initial-review
collateral proceeding was ineffective." Id. It did not recognize a free-standing claim based on
ineffective PCR counsel. Id.; see also Dickens v. Ryan, 740 FJd 1302, 1321 (9th Cir. 2014)
(holding a Martinez claim is not a constitutional claim for habeas relief). Therefore, summary
judgment is appropriate on these grounds.

C. Insufficient Facts Alleged - Grounds 29 & 36
Petitioner raises the following grounds for relief in his Petition and supplement to his
Petition:
"Ground Twenty-Nine: Defense was ineffective for breaching his duty and agreement
with Petitioner and his Grandfather." (Dkt. No. 1 at 21 ).
"Ground Thirty-Six: Petitioner's Due Process and Equal Protection Clause were
infringed." (Dkt. No. 13 at 1).
Petitioner does not allege any facts in support of these Grounds, or otherwise elaborate on
them in the Petition. (Dkt. No.1, 13).
The Court agrees with the Magistrate Judge that these allegation fail to comply with Rule
2(c) of the Rules Governing Section 2254 Cases. See Rule 2(c) (requiring the Petition to "state
the facts supporting each ground"). "In order to warrant relief, or, as an initial matter, even an
evidentiary hearing, a habeas corpus petitioner must allege sufficient facts to establish a
constitutional claim." Wiggins v. Lockhart, 825 F.2d 1237, 1238 (8th Cir. 1987). "Mere
conclusory allegations will not suffice." Id.; see also Nickerson v. Lee, 971 F.2d 1125, 1136 (4th
Cir. 1992) ("Unsupported, conclusory allegations do not entitle a habeas petitioner to an
evidentiary hearing."), abrogated on other grounds by Yeatts v. Angelone, 166 F.3d 255 (4th Cir.
1999). Petitioner has not alleged sufficient facts to establish a constitutional claim.

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With regard to Ground 36, Petitioner objects that he has "presented Due Process and
Equal Protection Constitutional violations as a whole on just the infonnation surfaced about the
case up to this critical point." (Dkt. No. 54 at 25). However, this statement provides no more
infonnation as to Petitioner's purported claim than his Petition. Therefore, summary judgment is
appropriate.
With regard to Ground 29, Petitioner provides additional facts in his objections. He
states that trial counsel met with Petitioner's Pastor and Grandfather, and that trial counsel shook
hands with his Grandfather saying that he would "make sure your son would receive a square
deal," referring to a plea agreement. (Dkt. No. 54 at 23). Even if Petitioner had alleged these
facts in his Petition, he would not be entitled to relief. To the extent Petitioner alleges the breach
of an agreement, he does not state a constitutional violation.
To the extent Petitioner alleges counsel was ineffective in plea negotiations, his claim
fails on the merits. The PCR court found that trial counsel entered into plea negotiations with the
solicitor, and that the State offered Petitioner a plea of voluntary manslaughter. (Dkt. No. 30-27
at 139-40). As explained more extensively below in Section III. 0., trial counsel adequately
discussed this plea offer with Petitioner, and Petitioner rejected the plea of voluntary
manslaughter twice. Petitioner has not explained how trial counsel was ineffective in his
negotiations or shown that the PCR court's application of Strickland was unreasonable.
Therefore, summary judgment is granted.

D. Ineffective Assistance of Counsel (Jury Charge) - Ground 1
Petitioner alleges that his trial counsel was ineffective for failing "to request specific jury
charge that [Petitioner] was not required to retreat as evidence induced [sic] proved Petitioner
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immune from the Law of Retreat - Stand his Ground Doctrine." (Dkt. No.1 at 9). Petitioner
argues in his objections that the trial judge should not have included the third element of selfdefense in its instructions and that if it had not done so, the jury "could have returned a lessor
included Judgment." (Dkt. No. 54 at 8).
The trial judge charged the following regarding the third element of self-defense:
I charge you further the third element of self-defense is that there was no other
way to avoid the danger and that-this final-this element of self-defense is that the
defendant had no other probable way to avoid the danger of death or serious
bodily injury than to act as the defendant did in this particular instance. I charge
you further that the defendant had no duty to retreat if by doing so the danger of
being killed or suffering serious bodily injury would increase.
(Dkt. No. 30-26 at 156). The PCR court ruled that trial judge's instruction on the duty to retreat
was correct as a matter of South Carolina law. (Dkt. No. 30-27 at 160). "[I]t is not the province
of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle
v. McGuire, 502 U.S. 62, 67-68 (1991). Thus, this Court must defer to and accept the PCR
court's ruling that the trial judge's instruction was correct as a matter of state law. See Sharpe v.

Bell, 593 F.3d 372,383 (4th Cir. 2010) ("It is beyond the mandate of federal habeas courts ... to
correct the interpretation by state courts ofa state's own laws.").
Because the trial court's instructions were correct, counsel was not ineffective for failing
to object to them, and the PCR court's conclusion on this claim was not an unreasonable
application of federal law. See, e.g., Lopez v. Thurmer, 594 F.3d 584, 587 (7th Cir. 2010)
("Because we leave undisturbed the state appellate court's holding that Lopez was not entitled to
a felony-murder instruction, its additional ruling that counsel's performance was constitutionally
adequate under Strickland was reasonable."). Therefore, summary judgment is appropriate.

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E. Ineffective Assistance of Counsel (Jury Charge) - Grounds 4, 5,6,7,8, and 10
Petitioner raises the following grounds regarding the trial court's jury instructions
regarding malice:
Ground Four: Trial counsel was ineffective for failing to object to improper jury
instructions that created a mandatory impermissible presumption that was
conclusive and rebuttable that shifted the burden of proof in violation of Due
Process.
Ground Five: Appointed trial counsel was ineffective for failing to object or
otherwise permit a ma[n]datory presumption charge. Since voluntary
manslaughter is expressly defined as the unlawful killing of another without
malice, jury instruction creating mandatory presumption of malice precludes
manslaughter and clearly prejudiced Petitioner charged with murder.
Ground Six: Appointed trial counsel was ineffective for failing to object or
otherwise attempt to prevent trial judge's continuous jury charge that they may
infer malice from the use of a deadly weapon when self defense was a central
issue in the case.
Ground Seven: Appointed trial counsel was ineffective for failing to request [a]
charge which instructed the jury that they could not infer malice solely from the
possession of a pocket knife if they otherwise had a reasonable doubt that malice
existed.
Ground Eight [firstt: Counsel was ineffective for failing to adequately explain the
law as it pertains to manslaughter to Petitioner and even more so to the jury.
Counsel prejudiced [Petitioner's] case by failing to specifically request
appropriate jury instructions for the jury's consideration.
Ground Ten: Trial counsel was ineffective in failing to object to a jury charge
instructing that malice may be inferred from the use of a deadly weapon where
evidence was presented that would mitigate or justify the killing.

(Dkt. No.1 at 13-14,16,17,18).
As an initial matter, the trial judge gave a permissive, not mandatory, instruction
regarding the inference of malice from the presence of a deadly weapon:

4

Petitioner has labeled two claims as "Ground Eight."
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You see, the difference between murder and voluntary manslaughter is in the
presence or the absence of malice, malice being present in murder, but not present
in voluntary manslaughter.
I'm going to define for you now the term of malice. What is malice?
Malice is defined in the law of homicide as a term of art. This is a technical term
importing wickedness and excluding just cause or legal excuse. It is something
which springs from wickedness, from depravity, from a depraved spirit, from a
heart devoid of social duty and fatally bent on mischief.
The law says that if it is proved beyond a reasonable doubt that one intentionally
killed another with a deadly weapon or with a dangerous instrumentality, such as,
a gun or a knife, an inference of malice may arise. The use of a deadly weapon
permits you to infer malice, but it does not require you to infer malice. If facts are
proved beyond a reasonable doubt sufficient to raise an inference of malice to
your satisfaction, this would simply be an evidentiary fact to be taken into
consideration by you, the jury, along with other evidence in the case and, again,
you may give it such weight as you find it should receive.
You as juror are free to accept or reject this permissive inference
depending on your view of the facts. In other words, if such conduct results
directly in the death of another and if such conduct was so culpable and
inexcusable, so aggravated and grossly reckless as to show an active, intentional
disregard of the consequences of human life, this denoting a malignant spirit, a
heart devoid of social duty and fatally bent on mischief, inference of malice may
arise .... This conduct, when it shows a deliberate and intentional design to so use
or employ or handle a deadly weapon or dangerous instrumentality so as to
endanger the life of another or of others without just cause or excuse may be
sufficient to raise this inference. However, it is for you, the jury, to decide beyond
a reasonable doubt whether upon all the facts and circumstances of this case the
Defendant alleged-the Defendant's alleged use of a deadly weapon demonstrated
such an intentional disregard for human life that malice may be inferred from the
use of the deadly weapon and it is for you, the jury to decide what weight, if any,
should be given this fact.
(Dkt. No. 30-26 at 145-148). Contrary to Petitioner's contentions (Dkt. No. 54 at 7), the trial
judge does not "declar[e] facts" in these instructions.
In State v. Belcher, decided on October 12,2009, the South Carolina Supreme Court held
that

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It has long been the practice for trial courts in South Carolina, as sanctioned by
this Court, to charge juries in any murder prosecution that the jury may infer
malice from the use of a deadly weapon. We granted Belcher's petition to argue
against this precedent. Having carefully scrutinized the historical antecedents to
this permissive inference, we hold today that a jury charge instructing that malice
may be inferred from the use of a deadly weapon is no longer good law in South
Carolina where evidence is presented that would reduce, mitigate, excuse or
justify the homicide.

685 S.E.2d 802, 803-04 (S.C. 2009). However, Belcher was decided over two years after
Petitioner's direct appeal was completed. In Belcher, the Supreme Court held that
Because our decision represents a clear break from our modem precedent, today's
ruling is effective in this case and for all cases which are pending on direct review
or not yet final where the issue is preserved ... Our ruling, however, will not
apply to convictions challenged on post-conviction relief.

Id. at 810. Noting this holding, the PCR court held that "Belcher simply does not apply to
[Petitioner's] case. The trial court judge correctly instructed the jury on the law as it existed at
the time of [Petitioner's] trial and did not create any mandatory presumptions, or shifts in the
burden of proof, regarding malice." (Dkt. No. 30-27 at 160). Again, this Court must defer to and
accept the PCR court's ruling that the trial judge's instruction was correct as a matter of state
law. See Sharpe, 593 F.3d at 383. Because the trial court's instructions were correct, counsel
was not ineffective for failing to object to them, and the PCR court's conclusion on this claim

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was not an unreasonable application offederallaw. 5 See, e.g., Lopez, 594 F.3d at 587. Thus,
summary judgment is appropriate on these grounds.
F. Ineffective Assistance of Counsel (Jury Charge) - Ground 9
In Ground 9, Petitioner alleges that "trial counsel was ineffective for failing to
specifically request the self defense jury charge that the sate is required to disprove beyond a
reasonable doubt each element of self defense." (Dkt. No.1 at 18). The trial judge charged that
"[t]he state has the burden of disproving self-defense by proof beyond a reasonable doubt." (Dkt.
No. 30-26 at 151). The trial judge later charged that "[y]ou should not convict him on either
charge ... unless his guilt on that charge, including the absence of self-defense, had been
established beyond a reasonable doubt." (Id. at 157). The PCR court noted the instruction given
by the trial judge and found that "the trial judge correctly charged the law of self-defense as
applicable to the facts of this case." (Dkt. No. 30-27 at 159). The Magistrate Judge
recommended granting summary judgment on this ground.
Citing State v. Burkhart, Petitioner objects that the trial court should have charged that
the state had the burden to "disprov[e] each and every element[] of the four (4) elements in selfdefense." (Dkt. No. 54 at 13). In Burkhart, the South Carolina Supreme Court held that "when
self-defense is properly submitted to the jury, the defendant is entitled to a charge, if requested,

5 To the extent that Petitioner claims trial counsel did not explain the law to him, the PCR
court found otherwise, crediting trial counsel's testimony that Petitioner "was well aware of and
apprised of all the issues, aspects, and developments in the case and that he was very involved in
the preparation of his defense." (Dkt. No. 30-27 at 144). The PCR court found that Petitioner's
claim that trial counsel "did not adequately communicate or consult with him regarding his trial
is not credible." (Jd.) The PCR court's factual findings that trial counsel adequately
communicated with Petitioner is presumed to be correct. Petitioner has not met his burden of
rebutting this presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

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that the State has the burden of disproving self-defense by proof beyond a reasonable doubt."
565 S.E.2d 298,303 (S.C. 2002). The Supreme Court went on to state that, "[c]harging that the
State must disprove self-defense or, that the State must prove the elements of self-defense are not
present, clearly places the burden on the State, as this Court intended." Id. at 304 (emphasis
added).
Again, "it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions." Estelle, 502 U.S. at 67-68. The Court defers to the PCR
court's finding that the trial judge's instructions complied with Burkhart. Because the trial
court's instructions were correct, counsel was not ineffective for failing to object to them, and the
PCR court's conclusion on this claim was not an unreasonable application of federal law. See,
e.g., Lopez, 594 F.3d at 587. Thus, summary judgment is appropriate on these grounds.

G. Ineffective Assistance of Counsel ("Pitting" Witnesses) - Ground 2
Petitioner alleges that trial counsel was "ineffective by failing to object when the assistant
solicitor repeatedly pitted Petitioner against the State's forensic pathologist on crossexamination." (Dkt. No.1 at 26). The PCR court found that Petitioner's "allegation regarding
the State's 'pitting' him against another witness is not credible and lacks any merit sufficient to
state a ground forrelief." (Dkt. No. 30-27 at 151).
Assuming the exchange between the assistant solicitor and Petitioner was improper
"pitting," Plaintiffhas not shown prejudice from trial counsel's failure to object this very brief
line of questioning-i.e., that objection "would reasonably likely have changed the outcome of the
trial." Credell v. Bodison, 818 F. Supp. 2d 928,939 (D.S.C. 2011). Or, at the very least,
"fairminded jurists could disagree" on whether any prejudice existed from counsel's failure to
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object to this very brief line of questioning. Therefore, the PCR court's application of Strickland
was not unreasonable, and summary judgment is appropriate. See Hurst v. Joyner, 757 F.3d 389,
394 (4th Cir. 2014) ("The state court decision may be deemed unreasonable 'only ifit is so
erroneous that there is no possibility fairminded jurists could disagree that the state court's
decision conflicts with th[e] [Supreme] Court's precedents.''') (quoting Nevada v. Jackson, 133
S.Ct. 1990,1992 (2013) (per curium)).

H. Ineffective Assistance of Counsel (Character Evidence). Grounds 3,14 and 26
Petitioner makes the following allegations about trial counsel's decision not to introduce
character evidence:
Ground Three: Trial attorney was grossly ineffective for not calling crucial
defense witnesses regarding A) decedent's violent history and propensity for
violence and B) Petitioner's non-violent history (no prison violence) and
reputation for peacefulness and Good Samaritan work.
Ground Fourteen: Defense counsel failed to introduce any of decedent's violent
bullying reputation, propensity for violence and specific instances of violent
conduct or violent trait of character that Petitioner was well aware in personal
knowledge.
Ground Twenty-Six: Defense counsel advised Petitioner his good character, law
enforcement work, educational background and documentative [sic] licensed
business would be fairly presented for the jury's consideration, yet was not during
trial.
(Dkt. No.1 at 12, 19,20).
With regard to the victim's character, Petitioner states that "[a]bout a dozen specific
incidents of violence by decedent exist, yet not effectively presented by appointed trial counsel."
(Dkt. No. 54 at 9). However, Petitioner only identifies one of these supposed incidents: "the
stabbing by the decedent of his brother in the back and stomach which he bragged about." (Id.).

-17-

The PCR court noted that because Petitioner insisted that the victim had a history of violence and
drug use, trial counsel obtained the victim's criminal record. (Dkt. No. 30-27 at 139). The
victim's criminal record only showed one charge for assault and battery with intent to kill that
involved members of the victim's family. (Id.). Trial counsel "talked to members of the victim's
family regarding the victim's history of violence, and ... as a result of those conversations, he
determined that calling the victim's family members to testify at trial would have been harmful to
the [Petitioner's] defense." (Id.).
Petitioner cannot successfully claim that witnesses should have been called without "a
proffer oftestimony from a witness or witnesses he claims his attorney should have called."

Bassette v. Thompson, 915 F.2d 932, 940 (4 th Cir. 1990), cert. denied 499 U.S. 982 (1991).
Petitioner has not put forward any proffer as to what these family members might have said to
rebut trial counsel's claim that such testimony would have been harmful to Petitioner's claim.
Nor has he put forward any other testimony from would-be witnesses regarding the victim's
propensity for violence. 6
As to evidence of Petitioner's character, the PCR court made detailed findings, which are
recounted in the R & R. (See Dkt. No. 48 at 15-16). Trial counsel had gone to great lengths to
keep Petitioner's criminal history and pending failure to stop for a blue light charge out of
evidence. (Dkt. No. 30-27 at 148). Trial counsel testified that
he researched the character issue and that he understood, in light of his experience
in addition to that research, that ifhe presented evidence or testimony regarding

6 Petitioner frequently argues that such testimony was not proffered at the peR hearing
because his PCR attorney was "incompetent" or ineffective. (See, e.g., Dkt .No. 54 at 10).
However, he has not put forward such testimony or even given the name(s) of supposed
witnesses in this habeas proceeding.

-18-

the [Petitioner's] good character, he would be opening the door for the State to
attack the [Petitioner's] character. The State would be able to bring up all the
issues counsel was trying to avoid, including the [Petitioner's] criminal history
and the pending failure to stop for a blue light charge.

(Id.). Thus, trial counsel made a strategic decision not to put on such character evidence. He
explained to Petitioner that "in a self-defense case, the most important part of the trial resolves
[sic] around what happened, factually, as the scene of the crime," and counsel did present
evidence to the jury "to show that the victim was the aggressor and that the [Petitioner] was
acting in self-defense." (ld. at 148-49).
The PCR court credited this testimony by trial counsel and found Petitioner did not prove
the two prongs of Strickland. (Id. at 150). The Court agrees with the Magistrate Judge that the
PCR court did not apply Strickland unreasonably. See Strickland, 466 U.S. at 681 ("If counsel
conducts such substantial investigations, the strategic choices made as a result 'will seldom if
ever' be found wanting."). Petitioner objects that the conclusion that ''trial counsel made a
'strategic' reason for not calling [such witnesses] is clearly invalid," but he offers no evidence or
substantiation for this bald assertion. (Dkt. No. 54 at 10). Therefore, summary judgment is
appropriate.

I. Ineffective Assistance of Counsel (Expert Witness) - Ground 27
Petitioner alleges
Trial counsel was ineffective by failing to present an expert witness in self
defense, particularly one that would factually attest to Petitioner's mind set having
suffered life threatening injuries prior to attack by decedent.
(Dkt. No. 1 at 20). As an initial matter, trial counsel did call two expert witnesses in support of
Petitioner's self-defense claim, one that testified about the blood spatters at the crime scene and

-19-

one that testified as to how intoxication affects an eyewitness' testimony and recollection of
events. (Dkt. No. 30-27 at 147). However, Petitioner claims trial counsel should have called a
third witness to testify about his mental state. 7
The Court agrees with the Magistrate Judge that this claim for relief is precluded by the
fact that Petitioner has not proffered such a witness at his PCR hearing or here in this habeas
proceeding. See Bassette, 915 F.2d at 940. The Court also agrees that given the amount of
evidence counsel did present at trial regarding self-defense and recounted by the PCR court, 8
Petitioner failed to show that he suffered prejudice from counsel's failure to call an expert on his
mental state. 9

J. Ineffective Assistance of Counsel (Defense of Duress) - Ground 13
Petitioner alleges that trial counsel was ineffective by "fail[ing] to present affirmative
defenses of extreme emotional disturbance or duress." (Dkt. No.1 at 19). In its ruling, the PCR
noted that trial counsel testified that "emotional distress, duress, and coercion were not separate
defenses and only really applied to the [Petitioner's] case in the context of self~defense." (Dkt.
No. 30-27 at 140). The PCR court went on to state that Petitioner "could not point to any
specific matters counsel failed to discover, or any defenses that could have been pursued had
counsel investigated further or been more fully prepared." (Id. at 143).

7 As the Magistrate Judge noted, trial counsel did introduce evidence about Petitioner's
recent injuries and resulting physical limitations. (Okt. No. 30-27 at 148).

8

See Section III, N. below for more details on trial counsel's presentation of self-defense.

In his objections, Petitioner also argues that trial counsel should have called at least
three of his treating physicians. (Dkt. No. 54 at 21). This claim was not raised in his habeas
petition or considered by the Magistrate Judge. However, it would fail for the same reasons that
Ground 27 fails-he has not proffered these witnesses and he has not shown prejUdice.
9

-20-

The Magistrate Judge noted that, while a mitigating circumstance to be considered during
sentencing includes "mental or emotional disturbance," see S.C. Code Ann. § 16-3-20(C)(b)(2),
he was unable to locate any affirmative defense of extreme emotional disturbance under South
Carolina law. (Dkt. No. 48 at 31). This Court has also been unable to locate any such
affirmative defense to murder under South Carolina law, and Petitioner has not pointed to any
authority for one. Indeed, the South Carolina Supreme Court has stated that "in South Carolina,
duress is not a defense to murder." State v. Kelsey, 502 S.E.2d 63, 69 n.2 (1998) (citing State v.

Rocheville,425 S.E.2d 32 (1993».
Given that Petitioner has failed to show that such a defense even exists under South
Carolina, the Court finds that the PCR court's application of Strickland was reasonable and
grants summary judgment.

K. Ineffective Assistance of Counsel (Defense of Others) - Ground 15
Petitioner alleges that "Defense Attorney failed to request specific defense of others jury
charge, which violated Petitioner's U.S. 6th Amendment Right." (Dkt. No.1 at 19). At the PCR
hearing, trial counsel testified that defense of others was inapplicable to Petitioner's case. He
testified that there had been a disagreement between the decedent and a young lady earlier, but
the problem is this, when the attack by Mr. Carter onto [Petitioner] occurred and
[Petitioner] got hold of a knife that was on the floor and began stabbing him was
in relation to defending himself, the issue with the young lady had occurred and
come and gone, he wasn't defending her no longer.... He was-()ur presentation
was he was attacking Mr. Carter because Mr. Carter was attacking him and he was
defending himself. So defense of others would not be appropriate under the fact
pattern that we have in my opinion.
(Dkt. No. 30-27 at 116). The PCR court credited trial counsel's testimony and found that "[t]rial
counsel articulated valid reasons for employing self-defense as a trial strategy, particularly in
-21-

light of the [Petitioner's] insistence that he only acted in self-defense, and further articulated
valid reasons regarding why the other defenses did not apply." (Dkt. No. 30-27 at 140, 143).
The PCR Court found that Petitioner failed to satisfy either prong of Strickland. (/d.).
In his objections, Petitioner states that he was "taking up for the female" "when decedent
attacked Petitioner by first striking him in the left ear and head very hard." (Dkt. No. 54 at 15)
(emphasis added). Assuming this statement is true, it does not rebut trial counsel's testimony
that when Petitioner began stabbing the decedent, he was acting to defend himself against attack.
The Court agrees with the Magistrate Judge that the PCR court's application of Strickland was
reasonable under the circumstances. See, e.g., Turk v. White, 116 F.3d 1264, 1266 (9th Cir.
1997) (holding defense counsel was not ineffective for choosing not to pursue a diminishedcapacity defense because it would have conflicted with the primary defense of self-defense).
L. Ineffective Assistance of Counsel (Imperfect Self-Defense) - Ground 23

Petitioner alleges that "Defense counsel was ineffective for failing to present an imperfect
self defense theory." (Dkt. No.1 at 20). As the Magistrate Judge noted, the South Carolina
Supreme Court has stated:
[A]ppellant argues the trial judge erred in refusing to charge the jury the theory of
'imperfect self-defense.' If believed by the jury, appellant contends an actual,
although unreasonable, belief that he was in imminent danger of bodily harm is a
defense to the charge of murder which reduces the crime to voluntary
manslaughter. This is not the law in South Carolina.
State v. Finely, 290 S.E.2d 808, 809 (S.C. 1982) (emphasis added). The Court agrees with the
Magistrate Judge that because this theory of imperfect self-defense does not exist in South
Carolina, trial counsel was not ineffective for failing to raise it. Therefore, the PCR court's
application of Strickland was reasonable, and summary judgment is appropriate.
-22-

M. Ineffective Assistance of Counsel (Research, Investigation and Preparedness) Grounds 8 [second], 17, and 18
Petitioner raises the following grounds for relief concerning trial counsel's research,
investigation and preparedness:
Ground Eight [second]: Counsel was ineffective for inadequately researching the
law pertaining to "malice," and other entitled specific self defense instructions.
Ground Seventeen: Counsel was ineffective for failing to investigate.
Ground Eighteen: Defense Attorney was Ineffective for not being thoroughly
prepared.
(Dkt. No. 1 at 17, 19). The PCR court found that Petitioner "failed to establish that trial counsel
was ineffective with investigating and preparing for this matter." (Dkt. No. 30-27 at 141).
Trial counsel noted that he and his investigator personally investigated and
mapped the crime scene, and that he reviewed all of the discovery materials. 10
And that he discussed the discovery, possible defenses, character issues, and
decisions regarding witnesses with [Petitioner] prior to trial. Trial Counsel
conducted a significant amount of legal research and investigation in preparation
for [Petitioner's] trial and was not required to reconstruct all of the events that
occurred the night of the crime. Counsel presented expert testimony to rebut the
State's evidence, adequately cross-examined the State's witnesses, and more than
adequately prepared the self-defense theory presented at trial.

(Id.). The PCR court went on to note that Petitioner "could not point to any specific matters
counsel failed to discovery, or any defenses that could have been pursued had counsel
investigated further or been more fully prepared, such that the result of the trial would have been
different," and found that Petitioner failed to prove either prong of Strickland. (Id. at 143).

10 Including any and all medical records, police reports, SLED reports, chain of custody
evidence, and criminal histories.

-23-

The Court agrees with the Magistrate Judge that the PCR court's application of Strickland
was reasonable. There is certainly a reasonable argument that trial counsel satisfied Strickland's
deferential standard.

N. Ineffective Assistance of Counsel (Ineffective Presentation) - Ground 11
Under Ground Eleven, Petitioner alleges
Part One - Defense Counsel ineffective for not challenging malice versus
manslaughter appropriately.
Part Two - Counsel failed to effectively present defense of lessor included
manslaughter in light of heat of passion, petitioner being attached and legal
provocation.
Part Three - Defense failed to object to confusing malice charge or even request a
currative [sic] instruction respecting 'malice' and or the Judge's charge as a
whole.
Part Four - Defense was ineffective by failing to present significant facts
regarding lessor included charge of voluntary manslaughter argument that the
killing would fall under manslaughter rather than 'malice' murder. Miller v.
Wainwright.
Part Five - Defense counsel ineffective by not developing fact Petitioner 'saw
something shiney [sic] in decedent's hand. On record at both trials ....
Additionally, knife was knocked completely out of Petitioners hand twice has
[sic] decedent attempted to retrieve knife.
(Dkt. No.1 at 18). To the extent that Petitioner asserts trial counsel was ineffective for failing to
object to the jury instruction on malice, the Court addressed this claim above in Section III. E.
To the extent that Petitioner asserts trial counsel failed to effectively present his claim of
self-defense, the Court grants summary judgment. The PCR court found that trial counsel had
"more than adequately prepared the self-defense theory presented at trial," and "vigorously cross-

-24-

examined the State's forensic expert witness." (Dkt. No. 30-27 at 141). The PCR court found
that
the credible evidence before this Court shows that the jury had for its
consideration evidence and testimony that the victim was on top of [Petitioner],
that [Petitioner] was also kicked and beaten during fight, that the victim was
significantly larger that [Petitioner], and that the victim had been drinking the
night of the incident.
Moreover, the [Petitioner] himself admits ... that testimony and evidence
was presented at trial that the victim was intoxicated and behaving violently prior
to and during his altercation with [Petitioner]. [Petitioner] further concedes ...
that evidence presented at trial 'showed that [Petitioner] very well could have
acted in self-protection when he stabbed decedent' who was 'on top of him'
during the fight. .. [Petitioner] also admits that facts presented to the jury showed
that he 'did attempt to flea' ...

(Jd. at 141-42). Finally, the PCR court found that trial counsel "objected where appropriate,
cross-examined the State's witnesses, [and] presented two expert witnesses on behalf of
[Petitioner] in support of their defense ... " (Jd. at 142). Petitioner has not rebutted these factual
findings with clear and convincing evidence. Given these findings, the Court finds the PCR
court's application of Strickland reasonable with regard to counsel's presentation of self-defense.
To the extent that Petitioner alleges trial counsel was ineffective for failing to "effectively
present defense of ... manslaughter," the Court also grants summary jUdgment. At the PCR
hearing, Petitioner did not specify any additional facts regarding manslaughter that trial counsel
should have introduced at trial. (Dkt. No. 30-27 at 96-97). In his objections to the R & R,
Petitioner readily admits that "[t]he record depicts evidence of self-preservation, heat of passion
and legal provocation ... The circumstances and facts support manslaughter." (Dkt. No. 54 at
14). Thus, he agrees that trial counsel did introduce such evidence at trial.

-25-

Furthermore, trial counsel testified, and the PCR court found, that Petitioner
"emphatically" rejected plea offers for voluntary manslaughter because he "always insisted he
was not guilty of these crimes because he was acting in self-defense." (ld. at 140). As explained
above, trial counsel presented Petitioner's claim of self-defense against both murder and
manslaughter. To the extent that Petitioner argues trial counsel should have argued Petitioner
was guilty of voluntary manslaughter contrary to his claim of self-defense, the Court rejects such
a claim. See, Turk, 116 F.3d at 1266 (holding defense counsel was not ineffective for choosing
not to pursue a diminished-capacity defense because it would have conflicted with the primary
defense of self-defense).
Therefore, the Court agrees with the Magistrate Judge that the PCR court's application of

Strickland was reasonable, and summary judgment on this ground is appropriate.

O. Ineffective Assistance of Counsel (Plea Offer) - Ground 12
Petitioner alleges that trial counsel was ineffective because he "did not seek Petitioner's
desirability of accepting the plea offer made by Government, and refused to talk, as requested by
Defendant with decedent's family." (Dkt. No.1 at 19).
The PCR court noted that Petitioner "acknowledged that trial counsel told him the State
was offering him a plea to voluntary manslaughter, but stated that the plea was not for any certain
number of years." (Dkt. No. 30-27 at 138-39). Petitioner also acknowledged that he was offered
the manslaughter plea twice, that he had his family prayed over the offer, and that he turned the
offer down twice. (ld. at 77-78, 103). Indeed, in his objections Petitioner states that he "thought
and saught [sic] and prayed with his family in an adjacent court room concerning the ... plea
offered through counsel." (Dkt. No. 54 at 14). In his objections, Petitioner essentially concedes
-26-

that trial counsel discussed the plea with him, but now claims trial counsel gave him "hope and
confidence of winning" at trial. II (See id.).
The PCR court also noted trial counsel's testimony on the matter:
Counsel testified that in [Petitioner's] case, the solicitor offered [Petitioner] a plea
to voluntary manslaughter. He further stated that, although he cannot remember
whether the solicitor offered a specific number of years, he is certain he told the
[Petitioner] he would be facing less time in prison for voluntary manslaughter
than he would if convicted at trial for murder. Counsel testified that [Petitioner]
emphatically rejected the solicitor's plea offer, and that [Petitioner] always
insisted he was not guilty of these crimes because he was acting in self-defense.

(ld. at 140). The PCR court found Petitioner's testimony that trial counsel did not adequately
communication or consult with him "not credible," and trial counsel's testimony credible. (Id. at
144). The PCR court made the following factual findings, which are presumed correct:
Trial counsel and [Petitioner] met several times, discussed discovery, the status of
the case, plea offers, witnesses, trial strategy and self-defense, overall discussed
all remotely significant decisions with [Petitioner]. ... trial counsel conveyed the
State's plea offer to [Petitioner] and [Petitioner] turned the offer down twice.

(ld. at 145). The Court agrees with the Magistrate Judge that Petitioner has failed to rebut these
factual finds with clear and convincing evidence. Given these factual findings, the PCR court
applied Strickland reasonably, and summary judgment is appropriate.

P. Ineffective Assistance of Counsel (Forensic Evidence) - Ground 20
Petitioner raises the following allegations in Ground 20 for relief:
Defense was ineffective by not challenging a proper chain of custody of
decedent's delayed blood sample results.

Petitioner also claims the plea agreement was "ambiguous" presumably because the
solicitor did not offer a specific number of years. (Dkt. No. 54 at 14).
11

-27-

Defense was ineffective not to adequately argue prosecutorial misconduct
regarding timely release results which were favorab [sic] and material to
Petitioner. 12
Defense was ineffective by failing to establish true and correct analysis with
genuine result of urine, blood & hair.
(Dkt. No.1 at 20). The Magistrate Judge held that Petitioner's claim that counsel was ineffective
for failing to challenge the chain of custody was procedurally barred, but went on to address the
merits of the claim. (Dkt. No. 48 at 38). Petitioner did raise this issue in his Rule 59(e) motion
before the PCR court. (See Dkt. No. 30-13 at 29 ("A complete chain of evidence must be
established as far as practicable, tracing possess from the time the specimen is taken from the
human body to the final custodian by whom it is analyzed."). Therefore, the Court finds this
issue is not procedurally barred and modifies to the R & R to exclude its conclusion that it
appears such a claim is procedurally barred. (See Dkt. No. 48 at 38). However, the Court agrees
with and adopts the R & R as to the merits of this claim.
Petitioner has failed to show any problem with the chain of custody and failed to show
prejudice from trial counsel's failure to object. Therefore, summary judgment is appropriate.

See, e.g., Pryor v. Norris, 103 F.3d 710, 713 (8th Cir. 1997) (holding defendant failed to
establish prejudice from counsel's failure to object to chain of custody because she failed to
shown that the objection would have been sustained or that prosecution would not have
established complete chain of custody).

12 Petitioner's claims regarding prosecutorial misconduct are addressed under Ground 30
in Section III. R., below.

-28-

To the extent that Petitioner claims that trial counsel should have conducted some
other/additional urine, blood, or hair analysis, this claim was not addressed by the PCR court and
not raised in Petitioner's Rule 59(e) motion. Therefore, it is procedurally barred.

Q. Ineffective Assistance of Counsel (Prejudicial Words) - Ground 28
Petitioner claims that trial counsel was ineffective "for failing to object to repeated
prejudicial words 'crime, crime scene, and victim' instead of alleged victim or location or
incident, especially in light of Petitioner's sole self defense." (Dkt. No.1 at 21).
Trial counsel made two motions regarding the use of these words at trial, researched the
issue, and argued out-of-state case law because there was no relevant or controlling South
Carolina law. (Dkt. No. 30-27 at 153). The trial judge denied both motions ruling that the use of
those words, within this context, was not prejudicial. (Id.) The trial judge did rule that witnesses
could not testify that they were present "at the scene of a murder." (ld. at 153 n.8). In
Petitioner's objections, he argues trial counsel should have raised a contemporaneous objection
each time a witness used one of these words. (Dkt. No. 54 at 22). However, the PCR court
found the issue sufficiently preserved by the motions made by counsel. (Dkt. No. 30-27 at 153).
Petitioner has made no showing that the issue was not adequately preserved by trial counsel's
two motions.13 Therefore, the Court finds that the PCR court's application of Strickland was
reasonable and grants summary judgment.

13 Furthermore, the trial court and jury may have become annoyed had defense counsel
continued to raise the same objection that had already been ruled on. As long as the issue was
preserved for appeal, trial counsel's decision not to continually raise the same objection was a
strategic one.

-29-

R. Ineffective Assistance of Counsel (prosecutorial Misconduct) - Ground 30
Petitioner alleges that trial counsel was "ineffective for failing to prevent and bring to
light assistant solicitor's intentional prosecutorial misconduct, deceptiveness and misrepresenting
facts as well as covering up facts in Petitioner's favor which would have produced a different
result." (Dkt. No.1 at 21).
The PCR court found that "there is simply no credible evidence supporting a finding that
such misconduct actually occurred nor is there any evidence before this Court to support a
finding that any testimony from the State's witnesses was false." (Dkt. No. 30-27 at 154). The
PCR court went on to hold that Petitioner's claims regarding prosecutorial misconduct were
"wholly without merit." (Id.). The Magistrate Judge found that he had "located no evidence of
such misconduct" on the record in this habeas proceeding. (Dkt. No. 48 at 47). Petitioner made
only a conclusory objection to this finding of the R & R. (Dkt. No. 54 at 23). Having failed to
put forward any credible evidence of such misconduct, Petitioner's claim of ineffective
assistance of counsel must fail. Therefore, the Court grants summary judgment.

S. Ineffective Assistance of Counsel (Voir Dire) - Ground 16
Petitioner alleges trial counsel "was ineffective during voir dire." (Dkt. No.1 at 19). The
PCR court found that this claim lacked merit. The PCR court specifically found that
(1) "Trial counsel submitted proposed questions to the trial court judge for voir dire and
struck jurors based on his own experience and intuition as a trial lawyer." (Dkt. No. 30-27 at
156).

-30-

(2) The "trial court judge asked all of the relevant and appropriate questions during voir
dire, and that throughout the entire process, there was no indication from anyone whatsoever that
the foreman of the jury was biased ... " (ld. at 157).
(3) Petitioner's "testimony and allegations regarding the jury ... are not credible and lack
any merit, while also finding trial counsel's testimony is credible." (ld. at 156).
The Court agrees with the Magistrate Judge that Petitioner has failed to rebut these
factual findings by clear and convincing evidence and failed to show prejudice, i.e. that the
outcome of trial would have been different had trial counsel conducted voir dire differently.
Therefore, the Court finds that the PCR court applied Strickland reasonably and grants summary
judgment on this ground. 14

T. Ineffective Assistance of Counsel (Jury Notes) - Ground 22
Petitioner alleges that trial counsel was "ineffective by not requesting the five (5) jury
notes as part of the record versus 'court identification' nor have defendant present at crucial
stages regarding jury instructions and re-charges." (Dkt. No. I at 20). As an initial matter, the
five jury notes were marked as court exhibits and made part of the record. (Dkt. No. 30·27 at 18,
23). Thus, the allegations that trial counsel failed to make these notes part of the record is
frivolous.
Furthermore, the PCR court found that

14 Petitioner objects to "the caked on layer or otherwise insulation from trial attorney's
action and inactions." (Dkt. No. 54 at 17). However, as explained above, the standard that the
Court must apply is a doubly deferential one-"whether there is any reasonable argument that
counsel satisfied Strickland's deferential standard." Harrington, 131 S.Ct. at 788.

-31-

(I) Petitioner "provided no credible evidence or testimony that trial counsel's
performance during ... jury deliberation, jury notes, or the jury poll was deficient, nor has
Petitioner provided any credible evidence that the jury foreman was biased or that the jury verdict
was not unanimous." (Dkt. No. 30-27 at 15).
(2) "According to the record and the documents, evidence and testimony presented in the
current action indicate that both the trial judge and trial counsel properly addressed all issues
regarding jury deliberation and jury notes." (ld. at 157).
(3) Petitioner "failed to provide this Court with any credible evidence that trial counsel's
alleged failures regarding the jurors prejudiced the defense." (ld.). Given these factual findings,
which Petitioner has not rebutted, the PCR court's application of Strickland was reasonable.
With regard to Petitioner's claim that he was not present during part of the proceedings,
the trial transcript does not indicate that he left the proceedings or was absent. (See Dkt. Nos. 3026, 30-27). Regardless, this claim was not raised in the PCR proceeding, and to the extent that it
was raised, it was not addressed by the PCR court. (Dkt. No. 30-27 at 134-67). Petitioner did
not raise it in his Rule 59(e) motion before the PCR court. (See Dkt. No. 30-13 at 25-34).
Therefore, this claim is procedurally barred.
U. Ineffective Assistance of Counsel (Conflict of Interest) - Ground 31
Petitioner alleges that trial counsel was "ineffective for continuing representation after
fact of conflict of interest" and that "counsel ineffectively failed to properly address the conflict
of interest issue." (Dkt. No. 1 at 21). The PCR court found such allegations '"wholly without
merit." (Dkt. No. 30-27 at 164). The PCR court correctly found that Petitioner must prove his
trial counsel had an actual conflict of interest and that the conflict adversely affected his lawyer's
-32-

performance. E.g., Cuyler, v. Sullivan, 446 U.S. 335, 348 (1980). The PCR court found that
Petitioner failed to meet this burden. (Dkt. No. 30-27 at 165). The Court agrees with the
Magistrate Judge that this Petitioner has not shown this finding to be contrary to, or an
unreasonable application of, clearly established federal law or based on an unreasonable
determination of the facts in light of the evidence.
In his objections, Petitioner states that
trial counsel had to practice law within the District, thus had an economic interest
and the political and state representation and legal community and conrad [sic]
also influenced counsel. Appointed trial counsel also had a conflict of interest
between the lodge brothers vs Petitioner's legal interest. These interest
independently and collectively prejudiced and adversely affected the degree of
Jury Trial Representation...
(Dkt. No. 54 at 24). To the extent Petitioner argues that counsel had certain incentives because
he had to practice law within the District, he has not expounded on what these specific incentives
might be or shown that they adversely affected trial counsel's performance. Similarly, Petitioner
has not explained how "lodge brothers" created a conflict of interest for counselor that any such
interest adversely affected trial counsel's performance. A conclusory statement that counsel's
performance was adversely affected is not enough. Therefore, the Court grants summary
judgment as to this ground.

V. Ineffective Assistance of Counsel (Insufficiency of Evidence) - Ground 19
Petitioner alleges that both trial and appellate counsel "failed to preserve insufficiency of
evidence as certain portions of the state's case was physically and illogically implausible." (Dkt.
No. 1 at 19). The Court agrees with Magistrate Judge that this ground is frivolous. Trial counsel
moved for a directed verdict after the close of the State's case, renewed this motion at the close

-33-

of evidence, and, after the jury returned its verdict, moved for judgment notwithstanding the
verdict, which the trial court interpreted as a motion for a new triaL (Dkt. No. 30-24 at 86-88;
Dkt. No. 30-26 at 68-69; Dkt. No. 30-27 at 29-31). Because Petitioner's claim is refuted by the
record, summary jUdgment is appropriate. See Mason v. Allen, 605 f.3d 1114, 1121 (l1th Cir.
2010) ("To the extent that Mason argues that the State failed to advise him of his Miranda rights,
we find this claim refuted by the record. Accordingly, we cannot say that the state court's ruling
on the legality of his confession is contrary to or an unreasonable application of clearly
established federal law.").
Petitioner is correct that appellate counsel did not raise this issue in his Anders brief.
(Dkt. No. 30-1). However, the PCR court found that Petitioner failed to show any prejudice from
appellate counsel's performance. (Dkt. No. 30-27 at 162-63). He did not establish that the South
Carolina Court of Appeals or South Carolina Supreme Court would have found prejudicial error
warranting reversal of his conviction had appellate counsel raised the issue. This Court agrees
and finds the PCR court's application of Strickland reasonable. Therefore, the Court grants
summary judgment on this ground.

W. Ineffective Assistance of Appellate Counsel- Ground 21
Petitioner alleges "ineffective assistance of indigent appointmented [sic] appellate
counseL" (Dkt. No.1 at 20). Specifically, Petitioner claims that it was "inappropriate" for
appellate counsel to submit an Anders brief and that appellate counsel did not file a Petition for
Rehearing. (Dkt. No. 54 at 3, 4).
With regard to filing an Anders brief, the PCR court found that Petitioner failed to show
any prejudice from appellate counsel doing so; he did not establish that the South Carolina Court
-34-

of Appeals or South Carolina Supreme Court would have found prejudicial error warranting
reversal of his conviction had appellate counsel not filed an Anders brief. (Dkt. No. 30-27 at
162-63). This Court agrees and fmds the PCR court's application of Strickland reasonable.
With regard to the Petition for Rehearing, the South Carolina Court of Appeals granted
appellate counsel's petition to be relieved as counsel at the same time that it dismissed
Petitioner's appeal. (Dkt. No. 30-3). Thus, Mr. Savitz was no longer Petitioner's attorney at the
time that a Petition for Rehearing would be filed. Furthermore, Petitioner has not shown any
prejudice from a failure to file a Petition for Rehearing. Therefore, the Court grants summary
judgment on this ground.

IV. Conclusion
The Court ADOPTS the R & R (Dkt. No. 48), as modified, GRANTS Respondent's
Motion for Summary Judgment (Dkt. No. 31), and DISMISSES the habeas petition.

Certificate of Appealability
The governing law provides that:
(c)(2) A certificate of appealability may issue ... only if the applicant has made a
substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability ... shall indicate which specific issue or
issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies the standard by demonstrating that reasonable jurists
would find this Court's assessment of his constitutional claims debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable. See Miller-El v.

Cockrell, 537 U.S. 322,336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v, Lee,

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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.

Richard Mark Gergel
United States District Judge

September ~ 2014
Charleston, South Carolina

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