Harrison v. Riley

Filing 42

ORDER adopting 23 Report and Recommendation of Magistrate Judge Mary Gordon Baker; granting 18 Motion for Summary Judgment. A certificate of appealability is denied. Signed by Honorable Bruce Howe Hendricks on 12/7/2016.(ssam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION

Clarence Austin Harrison,

)
)
Petitioner,
)
)
v.
)
)
Tim Riley,
)
)
Respondent.
)
________________________________)

Civil Action No. 2:14-3801-BHH
ORDER

This matter is before the Court on Petitioner Clarence Austin Harrison’s (“Harrison”
or “Petitioner”) pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.),
the matter was referred to a United States Magistrate Judge for initial review. On August
5, 2015, Magistrate Judge Mary Gordon Baker filed a Report and Recommendation
(“Report”), outlining the issues and recommending that the Court grant Respondent’s
motion for summary judgment and dismiss this action with prejudice. The Court granted
Petitioner an extension of time to file objections, giving him until September 7, 2015, to do
so. On September 11, 2015, in the absence of any objections from Petitioner, the Court
issued an order adopting the Magistrate Judge’s Report and granting Respondent’s motion
for summary judgment. The Court entered judgment the same day.
On September 18, 2015, the Court received objections from Petitioner, and
Petitioner ultimately appealed the Court’s September 11 order. On April 8, 2016, the
Fourth Circuit Court of Appeals issued an opinion granting Petitioner’s appeal and finding
that Petitioner’s objections, which were postmarked September 8, 2015, were timely filed

because September 7 was a federal holiday. Accordingly, the Fourth Circuit vacated this
Court’s September 11 order and remanded for consideration of Petitioner’s objections.
BACKGROUND
In March of 2006, the Abbeville County Grand Jury indicted Petitioner for assault
and battery with intent to kill, attempted armed robbery, and possession of a firearm or
knife during the commission of a violent crime. Attorneys Charles Grose and Alex Buergey
represented Petitioner at a trial before the Honorable Roger Couch on March 20-23, 2006.
On March 23, the jury convicted Petitioner as charged, and the state court sentenced
Petitioner to 20 years’ imprisonment for armed robbery, 20 years’ imprisonment for assault
and battery with intent to kill, and 5 years’ imprisonment for possession of a weapon during
the commission of a violent crime, all to run concurrently.

Petitioner is currently

incarcerated at the Tyger River Correctional Institution of the South Carolina Department
of Corrections (“SCDC”).
Petitioner filed a direct appeal and was represented by attorney Kathrine H. Hudgins
of the South Carolina Commission on Indigent Defense. In his final brief, Petitioner raised
the following issues:
1. Did the judge err in refusing to grant a mistrial when the witness testified
before the jury that appellant had just been released f rom jail?
2. Did the judge err in refusing to grant a mistrial when a witness for the
State testified that the solicitor told her, prior to her testimony before the jury,
that she could not assert her Fifth Amendment right against self
incrimination?
3. Did the judge err in instructing the jury that assault and battery of a high
and aggravated nature contains all the elements of assault and battery with
intent to kill with the exception of malice aforethought?
(ECF No. 17-4 at 4.) In an unpublished opinion filed on February 11, 2009, the South
2

Carolina Court of Appeals affirmed the judgment of the lower court. Petitioner filed a
petition for rehearing, but in an order dated March 24, 2009, the South Carolina Court of
Appeals denied the petition.
Petitioner, through counsel, filed a petition for a writ of certiorari raising the following
issues:
1. Did the Court of Appeals err in affirming the trial judge’s error in
instructing the jury that assault and battery of a high and aggravated nature
contains all of the elements of assault and battery with intent to kill with the
exception of malice aforethought?
2. Did the Court of Appeals err in affirming the trial judge’s error in refusing
to grant a mistrial when the witness testified before the jury that appellant
had just been released from jail?
3. Did the Court of [A]ppeals err in affirming the trial judge’s error in refusing
to grant a mistrial when a witness for the State testified that the solicitor told
her, prior to her testimony before the jury, that she could not assert her Fifth
Amendment right against self incrimination?
(ECF No. 17-9 at 4.) The Supreme Court of South Carolina denied the petition on April 8,
2010, and the matter was remitted to the lower court on April 12, 2010.
On December 16, 2010, Petitioner filed an application for post-conviction relief
(“PCR”) and supplemented the application several times thereafter. Petitioner raised the
following grounds for relief, taken verbatim from his application and supplements:
A) Ineffective Assistance of trial counsel
#1 Applicant was denied the effective assistance of trial counsel in violation
of the 6 and 14th Amendments to the US Constitution and Articles 1 § 3 and
§ 14 of the South Carolina Constitution when counsel Charles Grose moved
to enter hearsay statements for the purpose of showing the state of mind of
investigating officer.
#2 Applicant was denied the effective assistance of trial counsel in violation
of 6 and 14th Amendments to the US Constitution and Articles 1 § 3 and 1 §
14 of the South Carolina Constitution when counsel denied applicant’s due
3

process to effective assistance when he fail to object to Sgt. Raymond
Vandiver was recalled to the stand for impeachment of the State’s witnesses
who under oath recanted the out-of-court statements that was given to the
Law-enforcement.
#3 Applicant was denied the effective assistance of Appellate Counsel in
violation of the 6th and 14th Amendments to the US Constitution and Article
1 § 14 of the South Carolina Constitution when Appellate Counsel fail to
raise an issue on Direct Appeal that prosecutor made an improper closing
argument. . . .
The improper closing arguments shifts the burden of proof in which Applicant
must overcome. . . .
#4 Applicant was denied the effective assistance of counsel in violation of
the 6th and 14th Amendments to the US and Article 1 § 14 and Article 1 § 10
of the SC Constitution when counsel Grose failed to ask the trial court to
dismiss the statements allegedly given by State’s witnesses a day before,
and the morning of trial. . . .
B) Confrontation Clause Violation
#1 Applicant was denied the effective assistance of counsel in violation of
the 6 and 14th Amendments to the US Constitution and Articles 1 § 3 and 1
§ 8 of the 1895 Constitution of South Carolina Provides: “In all criminal
prosecutions the accused shall enjoy the right to be confront with the
witnesses against him: This constitutional Right is restated in Section 17-506
of the 1952 Code of Laws of South Carolina which provides: Every person
accused shall at his trial have a right to meet the witnesses produced against
him face to face.
Torey Brown had a major impact in Applicants proceedings to his
connections to all of the States witnesses.
A personal examination of Torey Brown was needed to give Applicant the
opportunity not only of testing the recollection and sifting the conscience of
the witness, and compelling him to stand face to face with the jury in order
that they may look at him, and judge by his demeanor upon the stand and
the manner in which he gives his testimony whether he is worthy of belief. .
..
(ECF No. 17-2 at 185-88.) Petitioner also complained that:
Counsel failed to effectively represent Petitioner by: failing to call a
subpoenaed witness who had information regarding Torey Brown’s
connection to the state’s witnesses; bringing in a prejudicial statement that
implicated Petitioner in criminal activity; failing to object to reference to prior
bad acts in the indictments; and failing to raise issue on appeal involving an
4

overruled objection to a statement made by the prosecutor during closing
argument.
(Id. at 189.)
On June 7, 2012, the Honorable Thomas A. Russo held an evidentiary hearing at
which Petitioner appeared and was represented by attorney Jennings B. Anderson. In an
order dated August 6, 2012, Judge Russo denied the PCR application.
Petitioner, through his attorney, then filed a Johnson petition for a writ of certiorari
on September 17, 2013, raising the following issue: “Whether Appellant’s trial counsel was
ineffective for failing to renew an objection to the prosecuting attorney’s repeated
interjection of the prosecuting attorney’s credibility, thereby in essence becoming a witness
for the State.” (ECF No. 17-14 at 4.) Petitioner also filed a pro se response to the Johnson
petition. On August 21, 2014, the Supreme Court of South Carolina entered an order
denying the petition for a writ of certiorari, and the matter was remitted to the lower court
on September 8, 2014.
Petitioner filed the instant § 2254 petition on September 29, 2014, raising the
following grounds, taken verbatim from his petition:
GROUND ONE: Denial of fair trial due to judicial error.
(a) Supporting facts: During the voir dire of the jury there was testimony in
reference to the petitioner history of being incarcerated, which inflamed the
minds of the jurors to return a guilty verdict. This matter was also in the body
of the indictment that was submitted to the jury to deliberate on. This
testimony and language clearly implies that the petitioner had already been
convicted of these charges of the indictment.
GROUND TWO: Violation of the Confrontation Clause (Ineffective
Assistance of Counsel)
(a) Supporting facts: Counsel introduced a statement from an alleged
witness of the crime during the cross-examination of Lieutenant Smith which
was hearsay-within-hearsay. Petitioner never had an opportunity to question
5

this witness about this statement because he did not testify at trial which is
a violation of his right to confront his accuser. The victim testified that he
was unaware of who shot him.
GROUND THREE: Ineffective Assistance of Counsel for not objecting to the
solicitor becoming a witness
(a) Supporting facts: In response to the witnesses’ changing their testimony
from their prior statement the prosecutor proceeded to impermissibly interject
his own credibility against the witnesses. The records demonstrates no less
than fourteen instances of such conduct, but counsel never made any
objections. This made the jury focus on the credibility of the state and not
the evidence that was to determine Petitioner’s guilt or innocence.
GROUND FOUR: Denial of Fair Trial due to judicial error in regards to jury
charges
(a) Supporting facts: The judge gave a jury charge concerning the definition
of malice as it relates to assault and battery with intent to kill. This puts the
mindset of the Defendant in issue as opposed to the evidence.
(ECF No. 1 at 6-11.)
STANDARDS OF REVIEW
I.

The Magistrate Judge’s Report
The Magistrate Judge makes only a recommendation to the Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination of any portion of the Report 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). In the absence of specific
objections, the Court reviews the matter only for clear error. 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
6

‘only satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.’”) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
II.

Summary Judgment
To grant a motion for summary judgment, this Court must find that “there is no

genuine issue as to any material fact.” Fed. R. Civ. P. 56(c). The Court is not to weigh the
evidence, but rather to determine if there is a genuine issue of fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). If no material factual disputes remain, then
summary judgment should be granted against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on
which the party bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
All evidence should be viewed in the light most favorable to the non-moving party. See
Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
III.

Habeas Corpus
Because Petitioner filed his petition after the effective date of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), review of his claims is governed by 28
U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett,
134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas
corpus relief unless the underlying state adjudication
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
7

In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court explained that §
2254(d)(1)’s “contrary to” and “unreasonable application” clauses have independent
meaning. Id. at 404-05. A federal habeas court may issue the writ under the “contrary to”
clause if the state court applies a rule different from the governing law set forth in
controlling cases, or if it decides a case differently than the Supreme Court has done on
a set of materially indistinguishable facts. Id. at 405-06. A federal habeas court may grant
relief under the “unreasonable application” clause if the state court correctly identifies the
governing legal principle from Supreme Court decisions but unreasonably applies it to the
facts of the particular case. Id. at 407-08. Factual determinations made by the state “shall
be presumed to be correct,” and “[t]he applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
A.

Exhaustion of Remedies and Procedural Bar

In the interest of giving state courts the first opportunity to consider alleged
constitutional errors in a state proceeding, relief under § 2254 may be had only after a
petitioner has exhausted his state court remedies. “To satisfy the exhaustion requirement,
a habeas petitioner must present his claims to the state’s highest court.” Matthews v.
Evatt, 105 F.3d 907, 911 (4th Cir. 1997), cert. denied, 522 U.S. 833 (1997).
To exhaust a claim in state court, a person in custody has two primary means of
attacking his conviction: filing a direct appeal and/or filing a PCR application under the
South Carolina Post Conviction Procedure Act, S.C. Code Ann. §§ 17-27-10–160. If the
PCR court fails to address a claim as required by S.C. Code Ann. § 17-27-80, then counsel
for the applicant must file a motion to alter or amend the judgment pursuant to Rule 59(e)

8

of the South Carolina Rules of Civil Procedure. Failure to do so will result in the application
of a procedural bar to that claim by the South Carolina Supreme Court. Marlar v. South
Carolina, 653 S.E.2d 266, 267 (S.C. 2007); see also Marlar v. Warden, Tyger River
Correctional Inst., 432 F. App’x 182, 186-88 (4th Cir. May 25, 2011). “[W]hen the claim
has been presented to the Court of Appeals or the Supreme Court, and relief has been
denied, the litigant shall be deemed to have exhausted all available state remedies.” In re
Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 321 S.C. 563,
564 (1990).
When a federal habeas petitioner has failed to raise a claim at the appropriate time
in state court and has no further means of bringing that issue before the state courts, the
claim will be considered procedurally defaulted, and he will be procedurally barred from
raising the issue in his federal habeas petition. Smith v. Murray, 477 U.S. 527, 533 (1986).
Procedural default can occur at any level of the state proceedings if a state has procedural
rules that bar its courts from considering claims not raised in a timely fashion.
If a federal habeas petitioner has procedurally defaulted his opportunity for relief in
the state courts, the exhaustion requirement is technically met and the rules of procedural
bar apply. See Matthews, 105 F.3d 907 (citing Coleman v. Thompson, 501 U.S. 722, 735
n.1 (1991), Teague v. Lane, 489 U.S. 288, 297-98 (1989), and George v. Angelone, 100
F.3d 353, 363 (4th Cir. 1996)). Thus, where the state court has not had the opportunity to
apply its own procedural bar, the federal court will nevertheless bar the claim where
application of the bar is clear. Teague, 489 U.S. at 297-98.
Nevertheless, because the requirement of exhaustion is not jurisdictional, a federal

9

court may consider claims that have not been presented to the highest South Carolina
court with jurisdiction in very limited circumstances. Granberry v. Greer, 481 U.S. 129, 131
(1989). Specifically, a federal court will review a procedurally defaulted claim if the
petitioner can demonstrate sufficient cause for the default and actual prejudice resulting
from the failure, or that a “fundamental miscarriage of justice” has occurred. Murray v.
Carrier, 477 U.S. 478, 495-96 (1986).
“Cause” is defined as “some objective factor external to the defense [that] impeded
counsel’s efforts to comply with the State’s procedural rule.” Strickler v. Greene, 527 U.S.
263, 283 n. 24 (1999) (quoting Murray, 477 U.S. at 488). A petitioner may prove cause if
he can demonstrate ineffective assistance of counsel relating to the default, show an
external factor that hindered compliance with the state procedural rule, or demonstrate the
novelty of a particular claim. Murray, 477 U.S. at 495-96. Absent a showing of cause, the
court is not required to consider actual prejudice. Turner v. Jabe, 58 F.3d 924, 931 (4th
Cir.1995). However, if a petitioner demonstrates sufficient cause, he also must show
actual prejudice in order to excuse a default. Murray, 477 U.S. at 492. To show actual
prejudice, the petitioner must demonstrate more than plain error. A petitioner must show
an actual and substantive disadvantage as a result of the error, not merely the possibility
of harm.
As an alternative to demonstrating cause for failure to raise a claim, a petitioner may
show a miscarriage of justice. To demonstrate a miscarriage of justice, the petitioner must
show that he is actually innocent. See Murray, 477 U.S. at 496 (holding that a fundamental
miscarriage of justice occurs only in extraordinary cases, “where a constitutional violation

10

has probably resulted in the conviction of someone who is actually innocent”). Actual
innocence is defined as factual innocence, not legal innocence. Bousley v. United States,
523 U.S. 614, 623 (1998).

B.

Ineffective Assistance of Counsel

The Sixth Amendment requires that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his defense,” and that such
assistance be effective. U.S. Const. Amend. VI; Strickland v. Washington, 466 U.S. 668,
686 (1984). A meritorious ineffective assistance claim must demonstrate two things: first,
that counsel’s performance was deficient and, second, that counsel’s deficient
performance prejudiced the defense. Strickland, 466 U.S. at 687-98. The first part of the
test, a court’s evaluation of counsel’s performance, must be “highly deferential” under this
standard, so as not to “second-guess” the performance. Id. at 689. “[A] court must indulge
a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged action might be considered sound trial strategy.” Id.
(internal quotation marks and citation omitted); see also Fields v. Attorney Gen. of
Maryland, 956 F.2d 1290, 1297-99 (4th Cir. 1992); Roach v. Martin, 757 F.2d 1463, 1476
(4th Cir. 1985).

To establish prejudice and thereby fulfill the second prong of the

ineffective assistance test, the challenging defendant must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694-95.

11

ANALYSIS
I.

Ground One
As his first ground for relief, Petitioner asserts that he was denied a fair trial “due to

judicial error.” (ECF No. 1 at 6.) More specifically, Petitioner complains that the jury panel
was informed during voir dire of Petitioner’s arrest history, and that the indictment, which
was submitted to the jury during deliberations, contained language implying “that petitioner
had already been convicted of these charges of the indictment.” (ECF No. 1 at 6.)
In her Report, the Magistrate Judge determined that ground one is procedurally
defaulted because counsel made no objections during voir dire, and the issues were not
raised on direct appeal. In addition, the Magistrate Judge determined that Petitioner failed
to demonstrate cause and prejudice, or actual innocence, to excuse the procedural default.
Moreover, the Magistrate Judge found Petitioner’s reliance on Martinez v. Ryan1
unavailing, first, because ground one–at least as stated in the petition–does not allege an
ineffective-assistance-of-counsel claim, and, second, because to the extent Petitioner now
attempts to couch ground one as an ineffective-assistance-of-counsel claim, the underlying
claim is not “substantial.” 132 S. Ct. 1309, 1315 (2012).
In his objections to the Magistrate Judge’s Report, Petitioner asserts that he
presented the facts of this issue as an ineffective-assistance-of-counsel claim in his

1

Pursuant to Martinez, an error by a prisoner’s PCR counsel during an initial state collateral review
proceeding can qualify as “cause” to excuse the procedural default of a claim of trial counsel ineffectiveness
if: (1) state law required the prisoner to wait until PCR to raise the Strickland claim; (2) the prisoner’s
underlying Strickland claim is “substantial”; and (3) the prisoner can establish that PCR counsel was
ineffective under Strickland. Martinez, 132 S. Ct. at 1318-19. To the extent the Petitioner seeks to invoke
Martinez to allege his PCR counsel was ineffective for failing to raise the claim, the Petitioner must
“demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to
say that the [petitioner] must demonstrate that the claim has some merit.” Id.

12

amended PCR application, but he contends that PCR counsel’s line of questioning during
the PCR hearing focused on the judge’s conduct rather than on trial counsel’s conduct.
Accordingly, Petitioner contends that Martinez applies and excuses the procedural default.
In addition, Petitioner contends that it would be a gross miscarriage of justice for the Court
not to entertain this ground because “the PCR judge during the same court term as
Petitioner’s granted relief on the same issue in Petitioner’s co-defendant’s case.” (ECF No.
31 at 2-3.) In support of his argument, Petitioner attaches a copy of the PCR court’s order
granting relief to co-defendant Alti Monte Haskell. (See ECF No. 31-1.)
After review, the Court finds Petitioner’s objections to be without merit. As an initial
matter, the Court agrees with the Magistrate Judge that despite the fact that Petitioner now
attempts to couch ground one as an ineffective-assistance-of-counsel claim, his petition
does not assert an ineffective-assistance-of-counsel claim. Instead, the petition alleges
that Petitioner was denied a fair trial due to “judicial error” because the court informed the
jury panel during voir dire of Petitioner’s arrest history and because the court submitted an
indictment to the jury during deliberations, which, according to Petitioner, implied that he
“had already been convicted of these charges of the indictment.” (ECF No. 1 at 6.) These
alleged judicial errors were not raised at trial or on direct appeal; therefore, the Court
agrees with the Magistrate Judge that ground one–as stated in the petition–is procedurally
defaulted. Moreover, the Court does not believe Petitioner has shown cause for the default
and actual prejudice, or that failure to consider the claim as set forth in the petition will
result in a miscarriage of justice.
Next, however, even if the Court considers Petitioner’s claim in the context of
ineffective assistance of counsel (insofar as Petitioner asserts in his response in opposition
13

to Respondent’s motion for summary judgment that appellate counsel was ineffective for
failing to raise the judicial error issues on direct appeal and/or that PCR counsel was
ineffective for failing to file a Rule 59(e) motion to obtain a ruling on the issues at PCR), the
Court agrees with the Magistrate Judge that Petitioner’s reliance on Martinez is unavailing.
(See ECF No. 21 at 2.)
As previously noted, in Martinez, the Supreme Court considered “whether a federal
habeas court may excuse a procedural default of an ineffective-assistance claim when the
claim was not properly presented in state court due to an attorney’s errors in an initialreview collateral proceeding.” 132 S. Ct. at 1313. Thus, for Martinez to apply, Petitioner
must allege that PCR counsel failed to properly raise the issue of trial counsel’s failure to
object to the alleged trial court errors. Even assuming for the sake of argument that
Petitioner has made such an allegation, the Court agrees with the Magistrate Judge that
Martinez would not excuse the procedural default of the claim because Petitioner cannot
demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial
one, “which is to say that the petitioner [cannot] demonstrate that the claim has some
merit.” See id. at 1318 (citations omitted).
Instead, as the Magistrate Judge explained in her Report, with respect to Petitioner’s
allegation that trial counsel should have objected to the jury panel allegedly being informed
during voir dire of Petitioner’s arrest history, the record indicates that the trial judge
ultimately excused a juror who informed the court he had “judged [the defendants] guilty
right now,” and Petitioner has not shown how he was otherwise prejudiced by trial
counsel’s failure to object. In addition, with respect to Petitioner’s contention that trial

14

counsel should have objected to certain unidentified language in the indictment being
submitted to the jury, the record indicates that the trial judge twice advised the jury that
indictments are not evidence and may not be used to determine guilt or innocence of a
defendant, and Petitioner has not shown how he was otherwise prejudiced by trial
counsel’s failure to object. (ECF No. 23 at 9-11.) Thus, the Court agrees with the
Magistrate Judge that the limited exception of Martinez does not apply. Moses v. Joyner,
815 F.3d 163, 169 (4th Cir. 2016) (“Martinez emphasized that a petitioner’s ineffectiveassistance-of-trial-counsel claim must be a colorable one before post-conviction counsel
can be deemed ineffective for failing to raise it.”).
Finally, to the extent Petitioner asserts in his objections that it would be a gross
miscarriage of justice for the Court not to entertain this claim based on the results of codefendant Alti Monte Haskell’s PCR application, the Court is not persuaded. As an initial
matter, this Court is not bound by the PCR court’s findings as to Petitioner’s co-defendant.
Moreover, a review of the order granting Haskell’s application, which Petitioner submitted
in connection with his objections, indicates that Haskell’s amended PCR application
specifically raised the issue of trial “counsel’s failure to object to the State sending an
indictment to the jury that contained language that seemed to indicate the Applicant had
a prior record of violent crime.” (See ECF No. 31-1 at 2.) As previously discussed,
Petitioner raised different issues on his direct appeal and in his PCR application. In
addition, the PCR judge’s order in Haskell’s case contains no explanation of his finding that
trial counsel erred by failing “to object to inflammatory and superfluous allegations
contained within the indictment that incorrectly stated that Applicant had previously been
convicted of a prior violent crime.” (Id. at 4.) Here, in arguing that the indictment contained
15

language implying “that petitioner had already been convicted of these charges of the
indictment,” Petitioner does not even identify the objectionable language or identify which
indictment contained the objectionable language, and it is simply not clear from the record
whether Petitioner’s conclusory and factually unsupported claim is even the same as
Haskell’s. (ECF No. 1 at 6.) Moreover, as Respondent noted in its motion for summary
judgment, even assuming Petitioner is complaining (as he did at the PCR hearing) of the
indictment for possession of a weapon during the commission of a violent crime, which the
trial judge read to the jury, the indictment tracks the language of S.C. Code Ann. § 16-23490(A) and adds the two violent offenses the state alleged Petitioner committed, and
Petitioner has not shown that trial counsel’s failure to object to the indictment or the judge’s
reading of the indictment to the jury prejudiced him where the trial judge twice advised the
jury that indictments are not evidence and cannot be used to determine a defendant’s guilt
(and where the indictment merely tracked the statutory language). Here again, because
Petitioner cannot demonstrate that the underlying ineffective-assistance-of-trial-counsel
claim (assuming for the sake of argument that his petition raises such a claim) is a
substantial one, the Court agrees with the Magistrate Judge that Martinez does not apply
to excuse the procedural default of the issue, and Petitioner is not entitled to habeas relief
on ground one.
II.

Ground Two
As a second ground for relief, Petitioner alleges that during the cross-examination

of Lieutenant Smith his trial counsel introduced a statement from an alleged witness, Torey
Brown, that was hearsay, and that his rights pursuant to the Confrontation Clause were
violated due to counsel’s ineffectiveness.
16

In her Report, the Magistrate Judge determined that Petitioner exhausted ground
two, but she determined that Petitioner is not entitled to relief on this ground because the
PCR court’s rejection of this claim was not contrary to, or an unreasonable application of,
clearly established federal law. In addition, the Magistrate Judge concluded that the PCR
court did not engage in an unreasonable determination of the facts on this issue.
In his objections, Petitioner submits that this is a meritorious issue that the Court
should address, and in support, he again relies on the PCR court’s adjudication of the
issue in his co-defendant’s PCR proceedings. After consideration, however, the Court is
not convinced by Petitioner’s argument.

Although the PCR court granted relief to

Petitioner’s co-defendant based on his co-defendant’s trial counsel’s failure to object to
the introduction of Brown’s out-of-court statement through the state’s witness, Lieutenant
Smith, which testimony the PCR court found deprived Petitioner’s co-defendant of the his
rights pursuant to the Confrontation Clause, this Court is not concerned with the PCR
court’s findings as to Petitioner’s co-defendant’s claims.2 Rather, this Court is concerned
with the PCR court’s findings as to Petitioner’s claims. And ultimately, the Court cannot
say that the PCR court’s analysis of this claim resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established Federal law, or that it
resulted in a decision that was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.

2

One reason this is so is because Petitioner and his co-defendant are not similarly situated. For
example, in the PCR court’s order granting relief to Petitioner’s co-defendant, the PCR court determined that
the “only testimony connecting [Petitioner’s co-defendant] to the scene of the crime” was Brown’s statement
introduced through Smith’s testimony. (ECF No. 31-1 at 5.). In contrast, in Petitioner’s case, the PCR court
found, for example, that “multiple witnesses testified against [Petitioner],” and that all of the evidence “together
overwhelmingly places [Petitioner] at the scene and proves his involvement in this case sufficient for the jury
to convict him beyond a reasonable doubt.” (ECF No. 17-2 at 274.)

17

Here, as the Magistrate Judge noted, the PCR court found no error in counsel’s
intentional introduction of Brown’s alleged statement during cross-examination of
Lieutenant Smith. The PCR court explained:
Applicant alleges Counsel was ineffective for introducing a statement from
Mr. Brown, who did not testify at trial, which named Applicant and
co-defendant, Monte Haskell, as the perpetrators of the crime. Applicant
testified he was not afforded the opportunity to cross-examine Mr. Brown,
and this resulted in prejudice.
Counsel testified he introduced this statement during cross-examination of
John Smith, one of the State’s witnesses who investigated this case.
Counsel stated he believed Mr. Brown relayed false information to law
enforcement, and this information was the basis of the arrest warrants for
Applicant and co-defendant. (See transcript pp. 424-432; 593-94). Counsel
testified his strategy was to show the State was prosecuting a crime based
on false information and a false arrest. Counsel also stated he introduced
the statements not to prove that co-defendant shot Victim, but to show John
Smith’s state of mind in obtaining the arrest warrants for Applicant and
Haskell.
Where counsel articulates valid reasons for employing a certain strategy,
counsel’s choice of tactics will not be deemed ineffective assistance.
Whitehead v. State, 308 S.C. 119, 417 S.E.2d 530 (1992). See also
Dempsey v. State, 363 S.C. 365, 610 S.E.2d 812 (2005) and McLaughlin v.
State, 352 S.C. 476, 575 S.E.2d 841 (2003). Counsel testified he introduced
this statement to prove the State was prosecuting a crime based on a false
arrest. Counsel also stated and argued at trial this statement was offered to
show the investigator’s mindset when procuring an arrest warrant in this
case. I find Counsel articulated valid reasons for introducing this statement
on the cross-examination of John Smith, and Applicant has not shown that
Counsel was deficient in that choice of tactics. I, therefore, find that
Applicant has failed to meet his burden of proving counsel’s performance
was deficient or that he was prejudiced thereby. Accordingly, this allegation
is denied.
(ECF No. 17-2 at 271-72.)
In addition, as the Magistrate Judge noted in her Report, at the PCR hearing
counsel testified specifically as to his strategy in the case, which was to expose Brown’s
lies and the police department’s arrest based on false information, and ultimately to use
18

Brown’s statements to argue that the state had not proven Petitioner’s guilt beyond a
reasonable doubt. (See ECF No. 23 at 13-15.) As counsel argued: “Torey Brown is
reason to hesitate to convict. Torey Brown is a reason that you should not be firmly
convinced at the State’s case. Torey Brown and how he affected this investigation and
influenced people improperly is reasonable doubt, and you should find both of these young
men not guilty.” (ECF No. 17-2 at 87-95.)
In all, the Court agrees with the Magistrate Judge that the PCR court’s finding that
trial counsel was not ineffective in introducing Brown’s statement while cross-examining
Lieutenant Smith was not contrary to, or an unreasonable application of, clearly established
federal law; nor did its rejection result in an unreasonable determination of the facts. As
the PCR court noted, the record indicates that counsel was able to show the jury that
Brown’s statements to the police–statements that formed the basis of Petitioner’s
arrest–were false, and this Court cannot say that counsel’s strategy was unreasonable or
that it unfairly prejudiced Petitioner.
Moreover, the Court does not agree with Petitioner that counsel’s actions violated
Petitioner’s rights under the Confrontation Clause. Importantly, the trial court determined
that Brown’s out-of-court statement to Smith was not being introduced for the truth of the
matter asserted and thus was not hearsay; instead, as previously set forth, Petitioner’s
counsel introduced Brown’s statement to prove its falsity and to show that Petitioner was
arrested based on false information. See Crawford v. Washington, 541 U.S. 36, 60 n.9
(2004) (noting that the Confrontation Clause “does not bar the use of testimonial
statements for purposes other than establishing the truth of the matter asserted”) (citing
Tennessee v. Street, 471 U.S. 409, 414 (1985); see also Giles v. California, 554 U.S. 353,
19

376 n.7 (2008) (noting that the Confrontation Clause limits the evidence that the state may
introduce but does not limit the evidence that a defendant may introduce). Ultimately, the
Court agrees with the Magistrate Judge that Petitioner is not entitled to federal habeas
corpus relief on ground two.
III.

Ground Three
As a third ground for relief, Petitioner asserts that trial counsel was ineffective “for

not objecting to the solicitor becoming a witness” (ECF No. 1 at 9.) Specifically, Petitioner
contends that the prosecutor interjected his own credibility in response to the witnesses
changing their testimony from prior statements, but counsel made no objections. In her
Report, the Magistrate Judge found that the PCR court’s rejection of this claim did not
warrant federal habeas corpus relief, and the Magistrate Judge quoted the following portion
of the PCR court’s order:
Applicant also claims Counsel was ineffective for not objecting to Solicitor
Anthony’s line of questioning Mr. Norman concerning their prior conversation
about a statement Mr. Norman gave to police. Applicant alleges Solicitor
Anthony became a witness in the trial and this, in turn, made the jury believe
Mr. Norman’s testimony. Counsel testified at the hearing, after reviewing the
transcript, he should have objected to this line of questioning as there is case
law which disfavors a Solicitor making himself a witness.
This Court finds, after a full review of the transcript, Counsel did properly
object to Solicitor Anthony’s examination of Mr. Norman. Starting on page
235, there was an in camera hearing concerning this issue. Counsel argued
that State v. Sierra stands for the proposition that a prosecutor should not
become a witness as it confuses his duties between being an officer of the
court and a witness. The trial court overruled Counsel’s objection, basing its
ruling on State v. Lee. In Lee, the South Carolina Supreme Court held,
although disfavored, there is no prohibition against a prosecutor essentially
becoming a witness for the State. The trial court then allowed Solicitor
Anthony to treat Mr. Norman as a hostile witness and ask him leading
questions.
In this case, Counsel made a proper objection, thus preserving the issue for
20

appellate review. Additionally, because of the trial court’s ruling on this
issue, it would have been superfluous to object [to] Solicitor Anthony’s
questions. Furthermore, this Court finds no prejudice resulted as Mr.
Norman refused to answer Solicitor Anthony’s questions in a manner which
was satisfactory to Solicitor Anthony. Moreover, on cross-examination of Mr.
Anthony, Mr. Buergey allowed Mr. Norman to explain he was under pressure
when he signed his statement to police and that at trial was not the first time
Mr. Norman explained to Solicitor Anthony that his statement contained false
information. Lastly, Mr. Norman’s testimony was only cumulative to Victim
and Ms. Cole’s testimony. As above, the overwhelming evidence in this case
alleviated any resulting prejudice from Counsel’s alleged errors. Accordingly,
this allegation is denied.
(ECF No. 17-2 at 275-76.)
In his objections, Petitioner again relies on the PCR court’s order granting relief to
his co-defendant. However, as previously established, this Court is not concerned with the
PCR court’s findings as to Petitioner’s co-defendant; rather, the Court is concerned with
the PCR court’s findings as to Petitioner. And after a review of the record, the Court
agrees with the Magistrate Judge that the PCR court’s rejection of this claim does not
entitle Petitioner to habeas corpus relief. As the Magistrate Judge noted, although
Petitioner contends that counsel was ineffective for failing to object, the record indicates
that counsel did object to the solicitor “interjecting his credibility” and “basically testifying.”
(ECF No. 17-1 at 237.) The trial judge sustained the objection in part and directed the
prosecutor to “refrain from posing the questions in a way that suggests that [Mr. Norman]
was just talking” to the prosecutor. (Id. at 242.) When the prosecutor did not comply, the
judge again reminded him to “ask the questions in the manner instructed.” (Id. at 248.)
Because the Court cannot say that the PCR court’s ruling on this issue was contrary to, or
an unreasonable application of, clearly established federal law (or that it was based on an
unreasonable determination of the facts in light of the evidence presented), the Court finds
21

Petitioner is not entitled to relief on ground three.
IV.

Ground Four
As a fourth ground for relief, Petitioner asserts he was denied a fair trial by the trial

judge’s jury instruction regarding the definition of malice as it relates to assault and battery
with intent to kill.
In her Report, the Magistrate Judge agreed with Respondent that Petitioner failed
to exhaust ground four because it was not raised on direct appeal. In addition, the
Magistrate Judge noted that, to the extent Petitioner asserts that the jury charge was
incorrect as a matter of state law, such a claim is not cognizable on federal habeas review.
Lastly, the Magistrate Judge noted that Petitioner’s direct appeal concluded before the
South Carolina Supreme Court issued its decision in State v. Belcher, 685 S.E.2d 802
(S.C. 2009), and thus Petitioner is not entitled to federal habeas relief on this ground.
See Ward v. Warden of Lieber Corr. Inst., No. 0:11-3277-RBH-PJG, 2013 W L 1187133,
at *18 (D.S.C. Feb. 15, 2003), adopted at 2013 WL 1187112 (D.S.C. March 20, 2013)
(finding that Belcher did not apply because it was decided after the petitioner’s direct
appeal was final); see also Horton v. Warden Kirkland Corr. Inst., No. 9:12-2668-CMCBHH, 2013 WL 57703, at *1 n.1 (D.S.C. Jan. 4, 2013) (discussing Belcher and finding that
“[t]he determination of when a change in state law becomes effective is purely a state law
issue”).
Petitioner did not file any specific objections to the Magistrate Judge’s
recommendation as to ground four, and the court finds no clear error in the Magistrate
Judge’s findings. In short, the Court agrees with the Magistrate Judge that the claim is

22

barred and, in any event, is without merit. See, e.g., Horton, 2013 WL 57703, at *1 n.1;
Brown v. Cartledge, No. 1:12-139-TLW-SVH, 2012 WL 4712019, at *10 (D.S.C. Aug. 23,
2012), adopted at 2012 WL 4761433 (D.S.C. Oct. 3, 2012) (“Because Petitioner’s
conviction was affirmed in 2005 and he was on appeal from denial of PCR when Belcher
was decided, the change in law did not apply to his case, and the jury charge was
appropriate when given.”). Accordingly, the Court adopts the Magistrate Judge’s findings
as to ground four and grants Respondent summary judgment on this ground.
CONCLUSION
After careful review, the Court agrees with the Magistrate Judge’s analysis and finds
Petitioner’s objections (ECF No. 31) to be without merit. Accordingly, the Court adopts and
incorporates the Magistrate Judge’s Report (ECF No. 23) and grants Respondent’s motion
for summary judgment (ECF No. 18).
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
December 7, 2016
Charleston, South Carolina
CERTIFICATE OF APPEALABILITY
The governing law provides:
(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

23

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, 252 F.3d 676, 683 (4th Cir. 2001). Here, the Court finds that the legal
standard for the issuance of a certificate of appealability has not been met. Therefore, a
certificate of appealability is denied.

24