Compton v. Cartledge
Filing
30
OPINION and ORDER RULING ON REPORT AND RECOMMENDATION adopting 23 Report and Recommendation, granting 11 Motion for Summary Judgment filed by Leroy Cartledge. Signed by Honorable Bruce Howe Hendricks on 9/26/16. (alew, ) Modified on 9/26/2016 to edit text (alew, ).
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Otis James Compton,
Civil Action No.: 2:15-3310-BHH
Petitioner,
vs.
Opinion and Order
Warden Leroy Cartledge,
Respondent.
Petitioner, Otis James Compton, (“Petitioner”), filed this application for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) In accordance with 28
U.S.C. § 636(b) and Local Rule 73.02(B)(2)(d), D.S.C., the action was referred to
United States Magistrate Judge Mary Gordon Baker, for pretrial handling and a Report
and
Recommendation
(“Report”).
Magistrate
Judge
Baker
recommends
that
Respondent’s Motion for Summary Judgment be granted and Petitioner’s § 2254
petition be dismissed. (ECF No. 23.) The Report sets forth in detail the relevant facts
and standards of law on this matter and the Court incorporates them without recitation.
BACKGROUND
Petitioner filed this action against Respondent alleging, inter alia, ineffective
assistance of counsel in proceedings related to Petitioner’s indictment and subsequent
conviction on various charges related to the murder of Johnny Hanna: burglary,
murder, armed robbery, malicious injury to real property, and possession of a firearm
or knife during the commission of a violent crime. (ECF Nos. 12-9 at 104; 12-12 at 38–
40.) On August 1, 2016, the Magistrate Judge issued a Report; and, on September 2,
2016, Petitioner filed his Objections.1 (ECF No. 27.) Respondent filed a reply on August
19, 2016. (ECF No. 28.) Having carefully reviewed the record, the Court finds that the
Magistrate Judge has accurately and adequately summarized the disputed and
undisputed facts relevant to this action. The Court has reviewed the objections, but
finds them to be without merit. Therefore, it will enter judgment accordingly.2
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the district court. The
recommendation has no presumptive weight. The responsibility to make a final
determination remains with the district court. Mathews v. Weber, 423 U.S. 261, 270–71
(1976). The Court is charged with making a de novo determination of those portions of
the Report to which specific objection is made, and the court may accept, reject, or
modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit
the matter with instructions. 28 U.S.C. § 636(b)(1). The Court need not conduct a de
novo review when a party makes only “general and conclusory objections that do not
direct the court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the
absence of a timely filed, specific objection, the Magistrate Judge’s conclusions are
reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
1
The Court granted Petitioner’s counsel an extension to file objections on August 16, 2016. (ECF No.
26.)
2
As always, the Court says only what is necessary to address Petitioner’s objections against the already
meaningful backdrop of a thorough Report of the Magistrate Judge, incorporated entirely by specific
reference, herein, to the degree not inconsistent. Exhaustive recitation of law and fact exists there.
2
DISCUSSION
The Magistrate Judge found that each of Petitioner’s claims fail on their merits in
her extremely thorough forty-five page Report. While Petitioner purportedly objects to
the entire Report, he does not offer any specific objections as to Grounds One and
Two. Rather, in objecting to these two grounds, Petitioner “incorporates by reference”
the arguments put forth in his “Reply in Opposition to Respondent’s Motion for
Summary Judgment.” (ECF No. 27 at 4–5.) Because Petitioner fails to point to any
specific error in the Report as to these grounds, the Court reviews Grounds One and
Two for clear error. See Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982) (“Courts
have . . . held de novo review to be unnecessary in . . . situations when a party makes
general and conclusory objections that do not direct the court to a specific error in the
magistrate’s proposed recommendation”).
Ground One alleges that Petitioner’s constitutional rights were violated when
statements he “made to the police in furtherance of an unkept written agreement” were
admitted “against him during his subsequent murder trial, where the statements in
question were induced by promises of leniency in exchange for information about the
murder.” (ECF No. 1-1 at 4.) The Magistrate Judge discussed this claim in exhaustive
detail. (ECF No. 23 at 13–20.) She first quoted the entire written plea agreement (“the
agreement”) referenced in this claim wherein the State agreed to reduce the sentences
on unrelated,3 unspecified burglary charges “by all reasonable means,” subject to
certain conditions, including Petitioner’s truthful cooperation in the investigation of the
3
The burglary charges referenced in the plea agreement had no connection to any charges related to
the murder of Johnny Hanna.
3
death of Johnny Hanna (“Hanna”). (Id. at 14–15; ECF No. 12-11 at 259–260.) The
Magistrate Judge then quoted both the trial court and appellate court’s findings that: (1)
the agreement could not be interpreted to affect any potential charges against
Petitioner relating to the burglary of Mr. Hanna’s home and his murder; and (2)
Petitioner breached the agreement by failing to cooperate truthfully. (ECF No. 23 at
16–18.) She correctly found that the “state court’s rejection of this claim is not contrary
to, or an unreasonable application of, clearly established federal law, nor did the
adjudication result in an unreasonable determination of the facts.” (Id. at 19.) The Court
finds no error in the Magistrate Judge’s conclusions here and grants summary
judgment on Ground One.
Ground Two alleges that the South Carolina Court of Appeals “erred by holding
Petitioner’s statements to informant Tracey Black [“Black”] were not obtained in
violation of Petitioner’s Sixth Amendment right to counsel where Black initiated contact
with Petitioner while he was a government agent, and while Petitioner was represented
by counsel on the plea agreement with the state.”4 (ECF No. 1-1 at 28.) Here, the
Magistrate Judge quoted the South Carolina Court of Appeals’ discussion of this
allegation. (ECF No. 23 at 21.) Noting that the Sixth Amendment right to counsel is
offense-specific, the Court of Appeals found that because Petitioner was not indicted
on the charges related to the Hanna murder until after he provided information to
Black, there was no Sixth Amendment violation regarding information gathered by
4
As explained in detail in the Report, Black was an inmate housed with Petitioner for a period of time
while Petitioner was incarcerated on the unrelated burglary charges. (ECF No. 23 at 8–11.) Black
cooperated with the police officers, reporting to them anything Petitioner told him about the Hanna
murder. (Id.)
4
Black from Petitioner about the Hanna murder. State v. Compton, 623 S.E.2d 661, 666
(S.C. Ct. App. 2005); see State v. Council, 515 S.E.2d, 508, 515 (S.C. 1999) (“The
Sixth Amendment right [to counsel] attaches only ‘post-indictment,’ at least in the
questioning/statement setting.” (citing Michigan v. Harvey, 494 U.S. 344 (1990)). The
Magistrate Judge correctly found that the Court of Appeals findings here were not
“contrary to, or an unreasonable application of, clearly established federal law, nor did
the adjudication result in an unreasonable determination of the facts.” (ECF No. 23 at
21.) Finding no error in the Magistrate Judge’s conclusions, the Court grants summary
judgment on Ground Two.
As noted above, Petitioner makes specific objections regarding his remaining
claims for habeas relief. The Court therefore conducts de novo review on Grounds
Three through Seven. Ground Three alleges that the South Carolina Court of Appeals
“erred by ruling the trial court did not impermissibly limit his cross-examination of
Solicitor Jones regarding his prior testimony at a pre-trial hearing.” (ECF No. 1-1 at 30.)
Specifically, Petitioner alleges that the trial court’s “limitation on this permissible
confrontation” violated his “Constitutional right to confrontation as protected by the
Sixth and Fourteenth Amendments” where the solicitor “admitted in that testimony that
he contemplated Petitioner’s attorney [Joe Smithdeal] being involved in the future to
fulfill the terms of the plea agreement and, therefore, the solicitor’s testimony at the
prior hearing was admissible as a prior inconsistent statement.” (Id.)
To address this claim, the Magistrate Judge first quoted the relevant testimony
given by Solicitor Jones at Petitioner’s trial. She also quoted the South Carolina Court
5
of Appeals’ treatment of this claim. (ECF No. 23 at 23–25.) The Court of Appeals found
that the trial court did not err in limiting the examination of Solicitor Jones, noting that
the testimony counsel sought to elicit from Solicitor Jones “was not relevant to the
issue of [Petitioner’s] guilt or innocence” and was also “based upon pure speculation
that counsel would continue in his involvement.” Compton, 623 S.E.2d at 666–667. The
Magistrate Judge agreed with these findings and found that the trial court appropriately
exercised its discretion in “declin[ing] to allow the Solicitor to speculate about future
events.” (ECF No. 23 at 26 (citing Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)
(“[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.”)).)
Importantly, the Magistrate Judge found that even if the limitation of the
examination of Solicitor Jones was erroneous, Petitioner is still not entitled to federal
habeas relief under the harmless-error analysis. (Id.) She correctly noted that “the
constitutionally improper denial of a defendant’s opportunity to impeach a witness, like
other Confrontation Clause errors, is subject to a Chapman [v. California, 386 U.S. 18
(1967)] harmless-error analysis.” (Id. (quoting Van Arsdall, 475 U.S. at 684) (internal
quotations omitted).) Here, “[t]he correct inquiry is whether, assuming that the
damaging potential of the cross-examination were fully realized, a reviewing court
might nonetheless say that the error was harmless beyond a reasonable doubt.” (Id.
(quoting Van Arsdall, 475 U.S. at 684) (internal quotations omitted).) Applying this
6
standard, the Magistrate Judge found it “difficult to envision any significant alteration to
Petitioner’s trial” even if counsel had been able to ask Solicitor Jones about his prior
statement. (ECF No. 23 at 27.) She emphasized that “Solicitor Jones’ testimony had
nothing to do with whether Petitioner committed the crimes at issue.” (Id.)
Here, Petitioner argues that the testimony his counsel sought to elicit from
Solicitor Jones was “material to arguments being advanced by the defense . . . [to
suppress the] statements made by [Petitioner] after the agreement was entered.” (ECF
No. 27 at 6–7.) More specifically, Petitioner asserts that “the Solicitor’s belief that
Attorney Smithdeal would continue to represent Petitioner on the full subject matter
covered by the agreement was relevant to the position of the defense regarding
statements made as a consequence of that agreement.” (Id. at 6.) To the extent these
arguments focus on immunity allegedly provided by the agreement, the Court of
Appeals correctly noted that “[t]he jury was not entitled to determine whether the
agreement provided transactional immunity, as that was a question of contract
interpretation before the court.” Compton, 623 S.E.2d at 667.
The Court agrees with the Magistrate Judge that the trial court did not violate
clearly established federal law in limiting Solicitor Jones testimony concerning his
“contemplations” for the future. Further, Petitioner has failed to establish that the
alleged constitutional violation was not harmless beyond a reasonable doubt. On this
point, Petitioner argues that “the revelation of these prior inconsistent statements would
have cast doubt on the credibility of this important witness by contradicting his trial
testimony and would have provided evidence the jury may have found supported
7
Petitioner’s claim that his statements regarding this murder were not freely and
voluntarily entered.” (ECF No. 27 at 7.) The Court is not convinced of the materiality,
much less the purported significance, of the testimony at issue. Petitioner does not
explain how Solicitor Jones’ “contemplation”
of
Attorney
Smithdeal’s
future
representation of Petitioner would be relevant to determining Petitioner’s guilt at trial.
As for Petitioner’s credibility argument, the Court notes that the jury would likely
already have accounted for some bias in Solicitor Jones’ testimony, given that he
prosecuted Petitioner’s case. In short, the Court finds that any alleged error in the
limitation of Solicitor Jones’ testimony “was harmless beyond a reasonable doubt.” Van
Arsdall, 475 U.S. at 684. This objection is therefore overruled.
Ground Four alleges that Attorney Smithdeal was constitutionally ineffective in
failing “to obtain a definitive immunity agreement with the State before permitting the
Petitioner to provide a statement to police concerning the murder of the victim.” (ECF
No. 1-1 at 34.) To address this claim, the Magistrate Judge quoted Attorney
Smithdeal’s (“Smithdeal”) relevant testimony from the PCR hearing as well as the PCR
court’s related findings. (ECF No. 23 at 28–30.) In finding that Petitioner failed to
establish a constitutional violation, the Magistrate Judge emphasized that: (1) the
record indicated that Solicitor Jones was unwilling to offer Petitioner immunity for
information; and (2) Petitioner insisted on speaking with the police, despite Smithdeal’s
advice that he not do so. (Id. at 31.) Based on this evidence, the Magistrate Judge
concluded that counsel could not be deemed ineffective for failing to obtain immunity
that the solicitor clearly would not grant and, further, that Petitioner could not
8
demonstrate prejudice when he voluntarily offered incriminating statements before he
entered into the agreement. (Id.)
Although Petitioner objects at length to the Magistrate Judge’s findings on this
claim, he mostly restates the same argument previously raised to the Magistrate
Judge—that Smithdeal erred by failing to draft the agreement in such a way that it was
explicitly clear to Petitioner that he would not receive immunity for charges related to
the Hanna murder in exchange for information. (ECF No. 27 at 8–13.) Petitioner also
argues that Smithdeal should have explained “South Carolina accomplice liability law”
to him “in detail” after Petitioner expressed confusion as to how he could be charged
with Hanna’s murder. (Id. at 12–13.) Petitioner contends that Smithdeal’s failure to
provide such explanation and his failure to include clearer language in the agreement
deprived Petitioner of his ability to voluntarily waive his Fifth Amendment right to
remain silent in subsequent conversations with the police. (Id. at 12.)
As the Magistrate Judge correctly stated, to prevail on a claim of ineffective
assistance of counsel, a petitioner must satisfy both parts of the two-part test set forth
in Strickland v. Washington, 466 U.S. 668 (1984). (ECF No. 23 at 27.) The petitioner
first must show that “counsel’s representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 687–88. In making this determination, a court
considering the habeas corpus petition “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.”
Id. at 689. If counsel’s performance is found to have been deficient under the first part
of the Strickland standard, to obtain relief the petitioner must also show that “there is a
9
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome,” Strickland, 466 U.S. at
694, and “[t]he likelihood of a different result must be substantial, not just conceivable,”
Harrington v. Richter, 562 U.S. 86, 112 (2011).
Here, Petitioner’s arguments fail to establish that Smithdeal’s representation fell
below an objective standard of reasonableness. At the time Petitioner entered the
agreement, Smithdeal was his court-appointed attorney for burglary charges unrelated
to the Hanna murder. (ECF No. 12-12 at 89, Smithdeal Test. 29 ¶¶ 9–18.) In reference
to the agreement, Smithdeal expressly told Petitioner that it was not in his interest to
reduce the burglary charges at the risk of potentially exposing himself to a life sentence
for murder. (Id. at 96–97, Smithdeal Test. 36 ¶¶ 22–25, 37 ¶¶ 1–15.) At the PCR
hearing, Smithdeal testified he told Petitioner that “it was my opinion that the police
were looking to jail him for the Hanna murder and that this deal that [Petitioner] wanted
to do, in fact he was insisting that we do against my advice, that it may never work.”
(Id. at 97, Smithdeal Test. 37 ¶¶ 4–8.) However, Smithdeal recognized that he
ultimately could not decide for Petitioner whether to enter into the agreement, stating,
I insisted to [Petitioner], “You keep your mouth shut and, you know, this
thing will leave you alone.” So, maybe we could have waited, maybe, you
know, maybe I should have said, “Don’t do anything, I’m not going to let
you do anything,” but you know, he wanted to do it and it wasn't my
decision, really.
(Id. at 101, Smithdeal Test. 41 ¶¶ 3–8.)
10
Smithdeal further testified that he specifically made sure Petitioner understood
there were no provisions in the agreement that protected him from prosecution for
murder as a co-conspirator in the death of Mr. Hanna. (ECF No. 12-12 at 97, Smithdeal
Test. 37 ¶¶ 16–22.) Smithfield stated that he explained to Petitioner he could still be
charged for Mr. Hanna’s murder despite never entering Mr. Hanna’s home when the
actual robbery and murder took place. (Id. at 103–104, Smithfield Test. 43 ¶¶ 10–25,
44 ¶¶ 1–12.) Smithfield testified that “[Petitioner] kept insisting, ‘I wasn't even there, I
wasn’t even on the property, I wasn't even in the neighborhood,’ and I said, ‘Otis
[Petitioner], they are going to use what you say and they are going to bring charges.’”
(Id. at 104, Smithfield Test. 44 ¶¶ 8–12.)
Based on the above testimony and the other evidence in the record, the Court
finds that Smithfield’s conduct falls within the “wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689. Although Smithfield may have failed to use
the precise wording Petitioner would have preferred in hindsight, both in drafting the
agreement and explaining the concept of accomplice liability, Strickland does not
require that counsel provide an idealized version of representation. See Harrington,
562 U.S. at 105 (“It is ‘all too tempting’ to ‘second-guess counsel’s assistance after
conviction or adverse sentence.’” (quoting Strickland, 466 U.S. at 689)). Indeed, “[t]he
critical question [under Strickland] is ‘whether an attorney’s representation amounted to
incompetence under ‘prevailing professional norms,’ not whether it deviated from best
practices or most common custom.’” Winston v. Pearson, 683 F.3d 489, 504 (4th Cir.
2012) (quoting Harrington, 562 U.S. at 105; Strickland, 466 U.S. at 690).
11
Even if Smithfield’s representation could be construed as ineffective, Petitioner
has failed to demonstrate prejudice from such alleged ineffective assistance. As the
PCR court found, Petitioner made multiple voluntary statements to the police before
entering into the agreement, including statements which placed him at the scene of the
crime. (See, e.g., ECF Nos. 12-5 at 306; 12-7 at 66.) Thus, there is not a “substantial”
likelihood that Petitioner would have been protected from the consequences of his
voluntary statements even if he had stopped speaking to the police after he entered
into the agreement. See Harrington, 562 U.S. at 112. In sum, the Court finds that
Petitioner failed to carry his burden of establishing counsel was ineffective as required
by Strickland and that the ruling of the PCR court was reasonable on this claim. This
objection is therefore overruled.
Ground Five alleges that Smithdeal was ineffective in failing “to assert the
Petitioner’s right to remain silent and [in] fail[ing] to establish his position as counsel for
the Petitioner in connection with anything relating to this homicide and any charges
which might be brought relating to it.” (ECF No. 1-1 at 39.) In her Report, the
Magistrate Judge quoted both the Petitioner’s arguments supporting this claim and the
PCR court’s lengthy discussion of the claim. (ECF No. 23 at 31–35.) She again noted
that the Sixth Amendment right to counsel is offense-specific and that Smithdeal did
not form an attorney-client relationship with Petitioner to cover the charges at issue in
this case. (Id. at 35.) She further noted that Petitioner voluntarily spoke to the police
and waived his Miranda rights, despite Smithdeal’s advice that he not talk to the police.
12
(Id. at 36.) She recommended that Petitioner is not entitled to federal habeas relief on
this ground.
Petitioner’s arguments under this objection fail to raise any new insights into this
claim—Petitioner rehashes the same arguments presented in state court and to the
Magistrate Judge. Specifically, he asserts that Smithfield “had[,] by his own actions[,]
assumed the role of counsel” as to the charges in the instant matter by agreeing to
represent Petitioner at a July 12, 2000 meeting with Solicitor Jones and Sherriff
Goodwin, and that Smithdeal was ineffective for failing to invoke Petitioner’s Fifth
Amendment right to counsel after that meeting. (ECF No. 27 at 13–16.)
On this claim, the Court says little, as it has already been appropriately
addressed in exhaustive detail by the PCR court and the Magistrate Judge. Petitioner’s
assertions that Smithfield became his attorney as to the Hanna murder charges on July
12, 2000 are unavailing. Petitioner had not yet been charged with the murder, and,
therefore, no Sixth Amendment right to representation had been created as to this
offense. See Council, 515 S.E.2d, at 515. Thus, as the PCR court noted, “it is unclear
how [Petitioner] can allege his Sixth Amendment right to the effective assistance of
counsel has been infringed.” (ECF No. 12-13 at 52.) Further, Petitioner chose to
abandon his right to remain silent when he spoke to police in the months following the
July 2000 meeting. See Miranda v. Arizona, 384 U.S. 436, 478 (1966) (“Any statement
given freely and voluntarily without any compelling influences is, of course, admissible
in evidence.”). The Court finds that the ruling of the state court was reasonable on this
claim and overrules Petitioner’s objection.
13
Ground Six alleges trial counsel was ineffective in failing “to object to the State’s
use of the Petitioner’s prior burglary convictions.” (ECF No. 1-1 at 43.) Petitioner
contends that during a motions hearing on November 14, 2002, defense counsel
indicated that they would need to discuss the admissibility of Petitioner’s prior burglary
convictions. (Id. at 44.) He asserts, however, that “no motion to address the
admissibility of the prior burglaries was ever taken up, and . . . the underlying facts of
the prior burglaries, and their similarities to this crime, were eventually admitted at
trial.” (Id.)
To address this claim, the Magistrate Judge first quoted the PCR court’s lengthy
discussion of the claim before conducting a thorough Strickland analysis. Citing the
record, the Magistrate Judge found that the PCR Court’s findings on this claim were
reasonable. Specifically, she noted that trial counsel chose a defense strategy that
necessarily involved revealing Petitioner’s prior burglary convictions, and found that
such conduct was “virtually unchallengeable.” (ECF No. 23 at 39 (quoting Strickland,
466 U.S. at 690) (“[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable.”).) She further found
that Petitioner suffered no prejudice where the trial court gave the jury a limiting
instruction as to the prior convictions and where there was overwhelming evidence
before the jury to implicate Petitioner’s guilt. (Id.)
Here, Petitioner argues that the “state court misapplied the Strickland standard
to the facts of his case.” (ECF No. 27 at 17.) He then summarizes the facts upon which
the state court relied to support its findings, and asserts that these facts are insufficient
14
to find that trial counsel provided effective representation and that he did not prejudice
Defendant by failing to object to “the state’s introduction of testimony concerning the
details of Petitioner’s prior convictions.” (Id. at 17–19.)
The Court agrees with the Magistrate Judge that the state court’s rejection of
this claim for ineffective assistance of counsel is not contrary to, or an unreasonable
application of, clearly established federal law, nor did the adjudication result in an
unreasonable determination of the facts. The PCR court analyzed this claim in
exhaustive detail, first finding that the trial court would not necessarily have excluded
these prior convictions even if trial counsel had moved to exclude them under South
Carolina Rule of Civil Procedure 403. (ECF No. 12-13 at 58–59.) The PCR court then
discussed trial counsel’s testimony that his defense strategy involved addressing the
plea agreement, making disclosure of the burglary convictions inevitable. (Id. at 57,
60.) Finally, the PCR court discussed the limiting instruction given by the trial court as
to the jury’s consideration of the prior convictions and noted the other evidence that
supported finding Petitioner guilty at trial. (Id. at 59–60.) Such evidence included
Petitioner’s sworn confession that placed him at the scene of the crime and his
statements made to other prisoners concerning his participation in the crime. (Id.)
Based on this evidence, the PCR court found that trial counsel “articulated a valid
defense strategy” and that Petitioner “failed to show any prejudice that many have
resulted from defense counsel’s alleged deficient representation.” (Id. at 60.)
15
The Court agrees with the PCR court and Magistrate Judge’s thoughtful and
detailed findings that Petitioner failed to carry his burden of establishing counsel was
ineffective as required by Strickland. This objection is therefore overruled.
Ground Seven alleges that appellate counsel was ineffective in failing “to raise
on direct appeal the ground that the Petitioner’s Fifth Amendment rights had been
violated.” (ECF No. 1-1 at 48.) This claim refers specifically to Petitioner’s
conversations with Black that occurred after Petitioner had invoked his Fifth
Amendment right to counsel. (Id. at 48–51.) The Magistrate Judge addressed this claim
at length. She first quoted the PCR court’s discussion of this claim before finding that
Petitioner could not establish appellate counsel was ineffective, nor that Petitioner was
prejudiced by any alleged deficiency. In support, the Magistrate Judge cited appellate
counsel’s testimony as to how he chose his particular appellate strategy based on what
he believed would be most successful. (ECF No. 23 at 41–42.) She also noted that
“two other inmates testified similarly to that of Tracy Black,” stating that Petitioner also
confessed to them his involvement in the Hanna murder. (ECF No. 23 at 42–43.)
Here, Petitioner first argues that appellate counsel’s performance was deficient
because he “chose an argument that stood no chance of succeeding on appeal over
one that clearly stood a greater chance of success on appeal.” (ECF No. 27 at 20.) He
further argues that such error was “clearly prejudicial” “[g]iven the fact that Petitioner
had a stronger Fifth Amendment claim than the Sixth Amendment argument advanced
on direct appeal.” (Id. at 22.)
16
These arguments fail to raise any issue that has not already been considered in
exhaustive detail by the PCR court and the Magistrate Judge. Notably, Petitioner does
not dispute the case law relied upon by the PCR court and the Magistrate Judge to find
that confiding in an undercover agent/informant, as Black was in this matter, does not
implicate any Miranda or Fifth Amendment concerns. See, e.g., Illinois v. Perkins, 496
U.S. 292, 297 (1990) (“Miranda forbids coercion, not mere strategic deception by
taking advantage of a suspect’s misplaced trust in one he supposes to be a fellow
prisoner. . . . Ploys to mislead a suspect or lull him into a false sense of security that do
not rise to the level of compulsion or coercion to speak are not within Miranda’s
concerns.”); United States v. Stubbs, 944 F.2d 828, 832 (11th Cir. 1991) (“Miranda and
Fifth Amendment concerns are not implicated when a defendant misplaces her trust in
a
cellmate
who
then
relays
the
information—whether
voluntarily
or
by
prearrangement—to law enforcement officials.”).
The Court agrees with the Magistrate Judge’s summation of the record and her
examination of the case law cited above. Upon a thorough de novo review, the Court
finds that Petitioner’s claim for ineffective assistance of appellate counsel fails as a
matter of law. This objection is therefore overruled.
CONCLUSION
After a thorough review of the Report, the record, and the applicable law, the
Court finds that Petitioner’s objections are without merit. Accordingly, for the reasons
stated above and by the Magistrate Judge, the Court overrules Petitioner’s objections,
adopts the Report, and incorporates it herein. It is therefore ORDERED that
17
Respondent’s motion for summary judgment (ECF No. 11) is GRANTED and
Petitioner’s § 2254 petition is DISMISSED with prejudice.
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 in paragraph (2).
28 U.S.C. § 2253 (c). A prisoner satisfies this standard by demonstrating that
reasonable jurists would find this Court’s assessment of his constitutional claims to be
debatable or wrong and any dispositive procedural ruling by this Court to be 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. 2011). In this case, the
legal standard for the issuance of a certificate of appealability has not been met.
Therefore, a certificate of appealability is DENIED.
IT IS SO ORDERED.
/s/ Bruce Howe Hendricks
United States District Judge
September 26, 2016
Greenville, South Carolina
*****
NOTICE OF RIGHT TO APPEAL
18
The parties are hereby notified that any right to appeal this Order is governed by
Rules 3 and 4 of the Federal Rules of Appellate Procedure.
19
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