Leaphart v. Eagleton

Filing 28

ORDER AND OPINION accepting in part and rejecting in part 21 Report and Recommendation; granting in part and denying in part 9 Motion for Summary Judgment. Respondent's Motion for Summary Judgment (ECF No. 9 ) is GRANTED IN PART with respect to Grounds One and Three through Five and with respect to the third, fourth, and fifth reasons supporting Ground Two and DENIED IN PART WITHOUT PREJUDICE with respect to the first and second reasons supporting Ground T wo. Grounds One and Three through Five and the third, fourth, and fifth reasons supporting Ground Two (ECF No. 1 ) are DISMISSED WITH PREJUDICE. This matter is RECOMMITTED to the Magistrate Judge for consideration of any further motions and briefings in accordance with this order. In this case, the legal standard for the issuance of a certificate of appealability has not been met. Signed by Honorable J Michelle Childs on 3/29/2017.(ssam, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Kareem Jabbar Leaphart,

)
)
Petitioner,
)
)
v.
)
)
Warden Willie L. Eagleton,
)
)
Respondent.
)
____________________________________)

Civil Action No.: 2:15-cv-04910-JMC

ORDER AND OPINION

Petitioner Kareem Jabbar Leaphart (“Petitioner”), a state prisoner, filed through counsel a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging five numbered grounds
for relief. (ECF No. 1.) Respondent, Warden Willie L. Eagleton (“Respondent”), filed a return
(ECF No. 8) and a motion for summary judgment on all five of Petitioner’s grounds for relief (ECF
No. 9).
In accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule 73.02(B)(2)(c) (D.S.C.), the
matter was referred to United States Magistrate Judge Mary Gordon Baker for pre-trial handling.
On January 23, 2017, the Magistrate Judge issued a Report and Recommendation (“Report”)
recommending the court grant Respondent’s motion for summary judgment and dismiss the
Petition with prejudice on all five grounds raised therein. (ECF No. 21.) Petitioner filed objections
to the Report (ECF No. 25), which the court now considers. For the reasons that follow, the court
ACCEPTS IN PART and REJECTS IN PART the Magistrate Judge’s Report, GRANTS IN
PART and DENIES IN PART Respondent’s motion for summary judgment, DISMISSES all but
a portion of Ground Two of the Petition, and RECOMMITS the matter to the Magistrate Judge
for further proceedings consistent with this order.

1

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The court concludes, upon its own careful review of the record, that the Magistrate Judge’s
factual synopsis is accurate and incorporates it herein by reference. 1 The court’s recitation of the
background will thus focus on the facts pertinent to the analysis of Petitioner’s objections, citing
to the record only when it is particularly useful to do so. The relevant facts, viewed in a light most
favorable to Petitioner, are as follows.
Petitioner was indicted and charged with possession with intent to distribute crack cocaine,
possession with intent to distribute cocaine, distribution of crack cocaine, and resisting arrest. A
two-day jury trial was held in January 2007, and Petitioner was convicted of the latter two counts
and sentenced, in the aggregate, to 23 years in prison.
At trial, George Douglas Curry, a narcotics agent of the Sheriff’s Office in Lexington
County, South Carolina, testified that the Sheriff’s Office had received complaints of drug-related
activity in the area of a mobile home park in West Columbia, South Carolina. In response, he and
other officers commenced an undercover drug buy in the area on March 15, 2006. Agent Curry
testified that the officers went to a bank and withdrew two $20 bills from an account used for
undercover operations such as this one and that he issued the two bills to another agent, John
Moore. Agent Moore then drove to the mobile home park where he encountered Petitioner. Agent
Moore testified that he gave Petitioner $40 of narcotics funds and that Petitioner handed him some
crack cocaine 2 (see ECF No. 8-1 at 105, 108, 111-12), after which Agent Moore signaled the other

1

In his objections, Petitioner does not contest the accuracy of the Report’s factual or procedural
recitations. (See ECF No. 25 at 1, 5.)
2

Although a hidden camera in Agent Moore’s vehicle recorded the interaction between Petitioner
and Agent Moore, the audio associated with video recording was not played for the jury and,
viewing the evidence in the record in a light most favorable to Petitioner, the camera was situated
so that the video recording did not show whether money, crack cocaine, or other items passed
2

officers involved to effect an arrest.
Agent Curry testified that he drove up on the scene with the blue lights affixed to his vehicle
turned on, stopped, and exited the vehicle. He testified that Petitioner “took off between two trailers
right on the roadway. And as he did, he took what was in his pocket, threw it on the ground, and
continued to run with [other officers] in pursuit.” (ECF No. 8-1 at 54.) Agent Curry lost sight of
Petitioner, re-entered his vehicle, drove to where he expected to find Petitioner, found Petitioner
in a struggle with other officers, and helped effect Petitioner’s arrest.
Agent Curry was questioned about the two $20 bills used in the undercover drug buy. Upon
testifying that he had issued the two bills to Agent Moore, Agent Curry was shown a photocopy
of two $20 bills and asked by the solicitor to “[p]lease tell me what this is if you know.” (ECF No.
8-1 at 51; see id. at 61 (clarifying that the item shown to Agent Curry was a photocopy of the
bills).) Agent Curry responded that “[t]his is a portion of the money that we had taken out of the
bank and that was issued to [Agent Moore]. This is the money that was used to make a controlled
purchase.” (Id. at 51.) Later, the solicitor asked Agent Curry, “You said that you picked up the
money that [Petitioner] threw. [The photocopy that] has been marked as State’s 1, is that the money
or some of the money that you picked up?” (Id.) Agent Curry responded in the affirmative, and
the prosecution moved to admit the photocopy into evidence. (See id.) Over Petitioner’s trial
counsel’s objection under the best evidence rule in S.C.R. Evid. 1002 or 1003, the photocopy was
admitted into evidence. (See id.)
During cross-examination, trial counsel asked Agent Curry how he kept track of the bills
so that he knew that the bills he had found were the same bills he had issued to Agent Moore. (See

between Agent Moore and Petitioner. The only direct evidence that an exchange occurred is Agent
Moore’s testimony.
3

id. at 62.) Agent Curry responded that “[w]e had this money. This is the money that I had handed
to [Agent] Moore a couple of minutes earlier.” (Id. at 62-63.) When asked whether there were any
distinguishing marks on the bills so that they could be identified, Agent Curry responded that there
was “[n]othing really . . . It looks like a $20 bill.” (Id. at 63.) During cross-examination, Agent
Curry also clarified that the two bills had been recovered from off the ground and that they had
been thrown on the ground by Petitioner. (See id. at 63-64.) Agent Curry also testified that the two
bills had been re-deposited into the account from which they had been withdrawn. (See id. at 62.)
Following the trial, the jury found Petitioner guilty of distribution of crack cocaine, and he
was convicted and sentenced as previously explained. Petitioner appealed, arguing that there had
been insufficient evidence for a conviction. The South Carolina Court of Appeals dismissed the
appeal.
Petitioner filed an application for post-conviction relief (“PCR”) in state court. During a
hearing in the PCR court, trial counsel testified that his “overall trial strategy” was to emphasize
the weakness of any evidence that a money-for-drugs transaction occurred:
[Agent] Curry testified that [Petitioner] dropped the drugs, but he didn’t
actually ever say specifically he saw it. And there was that. I tried to harp on
the fact that they might not be able to connect it necessarily. There [were]
complaints of drug activity. It’s not unreasonable to think that—[y]ou know,
they found it quite a distance away from him. There was nobody that
specifically said they eyeballed him drop it; they just said it was dropped in an
area where they thought he dropped it and said that he dropped it, but they
didn’t say that they actually saw it happen. I pointed that out in my closing
argument I believe. Additionally, it was not clear that an actual sale occurred.
I tried to address that problem at trial, that there was no audio even though they
said they [had an audio recording].
(ECF No. 8-2 at 125-26.) Trial counsel also testified that he had cross-examined Agent Curry
regarding what had happened to the two $20 bills after the undercover drug buy and that his
questions were “in anticipation of using [Agent Curry’s testimony] in closing, [to argue] that [the

4

officers] were . . . unconcerned as to return the money to the bank.” (Id. at 130.) Trial counsel was
asked whether that line of questioning “was part of [his] strategy with regards to the money used
in the control[led] buy.” (Id.) Trial counsel responded:
It is my experience—and it was something that I’ve been taught and I’ve found
to be true throughout my career—it’s better to get the information and argue
about why it’s a bad thing at closing rather than try to argue with the witness.
As a trial attorney, I’m a firm believer that you can never win an argument with
a witness and, once you’ve started, you’ve already lost. So, once you get the
information that can allow you to make the argument to the jury, you don’t go
into it further and tell them that they’re wrong or try to berate them for the
information you’ve gotten. You get the information and move on.
(Id.)
On cross-examination, Petitioner’s PCR counsel questioned trial counsel regarding his
understanding of S.C. Code Ann. § 44-53-582 (2016). 3 On redirect examination, trial counsel
testified that he did not believe the statute addressed anything regarding the admissibility at trial
of monies used by law enforcement during a controlled buy. Later, trial counsel, clarifying an
apparent misapprehension of PCR counsel, stated “As to whether . . . , if I had used [§ 44-53-582]
. . . and got the bills excluded, it would have made a difference, I can’t testify that it wouldn’t have
made a difference.” (ECF No. 8-2 at 144.)

3

The statute provides:
All monies used by law enforcement officers or agents, in the line of duty, to
purchase controlled substances during a criminal investigation must be
returned to the state or local agency or unit of government furnishing the
monies upon a determination by the court that the monies were used by law
enforcement officers or agents, in the line of duty, to purchase controlled
substances during a criminal investigation. The court may order a defendant to
return the monies to the state or local agency or unit of government at the time
of sentencing.

S.C. Code Ann. § 44-53-582.
5

The PCR court denied Petitioner’s PCR application and dismissed the petition. The PCR
court also denied Petitioner’s subsequent motion to reconsider, alter, or amend. Petitioner appealed
to the South Carolina Court of Appeals, filing a Johnson petition for a writ of certiorari. 4 The Court
of Appeals denied the petition for a writ of certiorari and remitted the matter to the court below.
On December 10, 2015, Petitioner filed his § 2254 petition, asserting five grounds for
relief. In Ground One, Petitioner asserts trial counsel rendered ineffective assistance by failing to
object to the sufficiency of the indictment for distribution of crack cocaine. In Ground Two,
Petitioner asserts trial counsel rendered ineffective assistance by failing to object to the admission
of the photocopy of the two $20 bills into evidence. In Ground Three, Petitioner asserts that trial
counsel rendered ineffective assistance by failing to object to remarks made by the solicitor during
opening statements. In Ground Four, Petitioner asserts trial counsel rendered ineffective assistance
by failing to object to the admission into evidence of the drugs at issue on chain-of-custody
grounds. In Ground Five, Petitioner asserts trial counsel rendered ineffective assistance by failing
to adequately investigate proper police procedure for conducting undercover drug buys and by
failing to challenge the procedures used by police in the undercover drug buy at issue in this case.
On March 24, 2016, Respondent filed a return and a motion for summary judgment. On
January 23, 2017, the Magistrate Judge issued her Report, recommending that the motion for
summary judgment be granted with respect to all five grounds for relief and that the petition be
dismissed. With regard to Ground Two of the petition, the Report noted that Petitioner advanced
five reasons supporting his contention that trial counsel rendered ineffective assistance by failing
to object to the admission into evidence of the photocopy of the two bills:
Petitioner contends that . . . counsel was ineffective (a) in failing to object to
the State’s failure to lay a proper foundation for the introduction of this
4

See Johnson v. State, 364 S.E.2d 201 (1988).
6

evidence; (b) in failing to object to the repeated assertions by Agent Curry that
the money in question was the buy money where the record is completely void
of any evidence whatsoever that serial numbers, or any other distinguishing
features of the money used, were recorded through any method; (c) in failing
to object to introduction of the evidence pursuant to Rules 401 and 402 of the
South Carolina Rules of Evidence; (d) in failing to argue that introduction of
the photographic copy violated . . . [Petitioner’s] rights under the Confrontation
Clause; (e) failing to object to the money being re-deposited in the bank and a
photocopy being substituted for the actual funds in violation of S.C. Code Ann.
§ 44-53-582.
(ECF No. 21 at 11-12 (internal quotation marks, ellipses, and footnote omitted).)
The Magistrate Judge determined that only the last of these reasons supporting Petitioner’s
Ground Two assertion was presented to the PCR court, and that, absent an excuse, the four other
reasons were procedurally defaulted. (See id. at 14-15.) Regarding the last reason, the Magistrate
Judge concluded that the PCR court’s rejection of Petitioner’s argument that trial counsel had
rendered ineffective assistance by not objecting to the admission of the photocopy of the two bills
based on § 44-53-582 was not contrary to, or an unreasonable application of, clearly established
federal law. The Magistrate Judge agreed with the PCR court that the statute had no application to
the admissibility of evidence in Petitioner’s criminal case. (See id. at 15.)
The Magistrate Judge noted that Petitioner argued that PCR counsel had rendered
ineffective assistance by failing to raise the four procedurally defaulted reasons for Ground Two
relief, which amounted to cause and prejudice to excuse his procedural default under Martinez v.
Ryan, 556 U.S. 1 (2012). For three of the remaining reasons—all but the reason based on the
Confrontation Clause—the Magistrate Judge determined that they should be rejected on the basis
that it was trial counsel’s strategy to use cross-examination and closing argument to attack the
police investigation by, among other things, pointing to the defects in tracking and recording the
two $20 bills. (See id. at 17-18.) In the Magistrate Judge’s estimation, trial counsel’s strategic
decision in this regard could not amount to constitutionally deficient performance. (See id. at 18
7

(citing Strickland v. Washington, 466 U.S. 668, 690 (1984)).) Regarding the ConfrontationClause-based reason, the Magistrate Judge determined that it was without merit because Agent
Curry laid a proper foundation for the admission of the photocopy. (See id. at 19.)
With regard to Ground Five, the Magistrate Judge noted that Petitioner asserts eight
different instances in which trial counsel is alleged to have been ineffective for not adequately
cross-examining the State’s witnesses on various aspects of Petitioner’s case. 5 (See id. at 22-23.)
The Magistrate Judge also noted Respondent’s argument that Ground Five was procedurally
defaulted because none of the reasons for relief asserted under it were presented to the PCR court
and noted as well Petitioner’s arguments for application of Martinez. (See id. at 23.) The Magistrate
Judge determined that Martinez would be of no aid to Petitioner because the underlying claim of
ineffective assistance was meritless. (See id.) The Magistrate Judge explained that Petitioner
presented no argument or evidence demonstrating that he was prejudiced by trial counsel’s failure
to follow the specific lines of questioning he advanced and that criticism of trial counsel’s cross-

5

Specifically, Petitioner asserts that trial counsel rendered ineffective assistance by failing to
“question . . . Agent Curry[] concerning what measures he took to document the police buy
money,” “question Agent Moore concerning whether he had placed crack cocaine from earlier
undercover buyers in the same door pocket where he placed the substance he allegedly purchased
from Petitioner,” “question Agent Moore concerning why he did not attempt to conduct the
exchange of drugs for money within the field of vision of the camera equipment designed to record
the transaction,” “question Agent Curry concerning exactly where he discovered the drugs and
money he claimed had been discarded by Petitioner,” “specifically challenge [Agent Curry’s]
claim[s] that he knew the money found on the ground was the same money employed by Agent
Moore in a drug transaction with Petitioner” and that “he knew Petitioner had thrown other drugs
and the $40 buy money down as he fled the scene when [Agent Curry] did not swear that he
physically observed Petitioner throw anything to the ground,” “question Agent Moore concerning
why he did not secure the drugs he supposedly bought from Petitioner in evidence rather than turn
them over to Agent Curry,” “question Agent Curry as to why he did not identify the source of the
two parcels of crack cocaine in this case separately at the time they were marked at the scene,” and
“cross examine Agent Curry concerning how he could be certain that the drugs and small amount
of money found on the ground were not related to other drug activity at that trailer park
unconnected to Petitioner.” (ECF No. 1-1 at 8-9.)
8

examination tactics was not enough to demonstrate that his performance was deficient. (See id. at
23-24.)
The Magistrate Judge also recommended granting Respondent’s motion for summary
judgment as to Grounds One, Three, and Four. In his objections, Petitioner does not challenge the
Magistrate Judge’s recommendation that the motion for summary judgment as to Grounds One,
Three, and Four should be granted. Instead, Petitioner only challenges the Magistrate Judge’s
recommendation as to Grounds Two and Five.
II. LEGAL STANDARDS AND APPLICABLE LAW
A. Summary judgment standard of review
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight. The responsibility to make a final determination remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court reviews de novo only those
portions of a Magistrate Judge’s Report to which specific objections are filed, and reviews those
portions which are not objected to—including those portions to which only “general and
conclusory” objections have been made—for clear error. See Diamond v. Colonial Life & Acc. Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005). The court may accept, reject, or modify, in whole or in
part, the recommendation of the Magistrate Judge or recommit the matter with instructions. See 28
U.S.C. § 636(b)(1).
Summary judgment is appropriate when the materials in the record show that “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “[I]n ruling on a motion for summary judgment, ‘the evidence of the
nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.’” Tolan v.
Cotton, ___ U.S. ___, 134 S. Ct. 1861, 1863 (2014) (per curiam) (brackets omitted) (quoting

9

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). A dispute is genuine “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party,” and a fact is material
if it “might affect the outcome of the suit under the governing law.” Anderson, 477 U.S. at 248.
The party seeking summary judgment shoulders the initial burden of demonstrating to the
court that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to
survive the motion for summary judgment, may not rest on the allegations averred in its pleadings.
Rather, the non-moving party must demonstrate that specific, material facts exist which give rise
to a genuine issue. See id. at 324.
B. Ineffective assistance of counsel
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI. The
Supreme Court has held that this right is violated when counsel retained by, or appointed to, a
criminal defendant fails to provide adequate or effective legal assistance. See Strickland, 466 U.S.
at 686. For a claim of ineffective assistance of counsel in violation of the Sixth Amendment,
Strickland established a two-prong test, under which the criminal defendant must show deficient
performance and resulting prejudice. See id. at 687.
“The performance prong of Strickland requires a defendant to show ‘that counsel’s
representation fell below an objective standard of reasonableness.’” Lafler v. Cooper, 566 U.S.
156, 163 (2012) (quoting Hill v. Lockhart, 474 U.S. 52, 57 (1985)). “[C]ounsel should be ‘strongly
presumed to have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment,’” and courts should indulge in a “‘strong presumption that
counsel’s conduct fell within the wide range of reasonable professional assistance.” Burt v. Titlow,

10

___ U.S. ___, 134 S. Ct. 10, 17 (2013) (quoting Strickland, 466 U.S. at 689-90). “To establish
Strickland prejudice a 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.’” Lafler,
566 U.S. at 163 (quoting Strickland, 466 U.S. at 694).
C. Section 2254 standard of review
Section 2254, under which the instant petition is brought, “sets several limits on the power
of a federal court to grant an application for a writ of habeas corpus on behalf of a state prisoner.”
Cullen v. Pinholster, 563 U.S. 170, 181 (2011). For instance, § 2254 authorizes review of only
those applications asserting a prisoner is in custody in violation of the Constitution or federal law
and only when, except in certain circumstances, the prisoner has exhausted remedies provided by
the state. See id.
When a § 2254 petition includes a claim that has been adjudicated on the merits in a state
court proceeding, § 2254 provides that the application shall not be granted with respect to that
claim, unless the state court’s adjudication of the claim:
(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). “This is a ‘difficult to meet,’ and ‘highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions be given the benefit of the doubt.’”
Pinholster, 563 U.S. at 181 (internal citations omitted) (quoting Harrington v. Richter, 562 U.S.
86, 102 (2011); Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).
The standard of review for an ineffective assistance claim under Strickland in the first
instance is already “a most deferential one,” and “‘[s]urmounting Strickland’s high bar is never an
11

easy task.’” Richter, 562 U.S. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)).
Consequently, “[e]stablishing that a state court’s application of Strickland was unreasonable under
§ 2254(d) is all the more difficult[, as t]he standards created by Strickland and § 2254(d) are both
‘highly deferential,’ and when the two apply in tandem, review is ‘doubly’ so.” Id. (internal
citations omitted) (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009); Lindh v. Murphy,
521 U.S. 320, 333, n. 7 (1997); Strickland, 466 U.S. at 689). “When § 2254(d) applies, the question
is not whether counsel’s actions were reasonable . . . [but] whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Id.
D. Procedural default
A petitioner’s failure to raise in state court a claim asserted in his § 2254 petition
“implicates the requirements in habeas of exhaustion and procedural default. Gray v. Netherland,
518 U.S. 152, 161 (1996). “The habeas statute generally requires a state prisoner to exhaust state
remedies before filing a habeas petition in federal court.” Woodford v. Ngo, 548 U.S. 81, 92 (2006).
Thus, “[a] state prisoner is generally barred from obtaining federal habeas relief unless the prisoner
has properly presented his or her claims through one ‘complete round of the State’s established
appellate review process.’” Id. (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999)). In a
similar vein, “a habeas petitioner who has failed to meet the State’s procedural requirements for
presenting his federal claims has deprived the state courts of an opportunity to address those claims
in the first instance” and has procedurally defaulted those claims, Coleman v. Thompson, 501 U.S.
722, 732 (1991). Absent an exception, a federal court will not entertain a procedurally defaulted
claim, so long as the state procedural requirement barring the state court’s review is adequate to
support the judgment and independent of federal law. See Martinez, 566 U.S. at 9-10; Walker v.
Martin, 562 U.S. 307, 315-16 (2011). “Thus, if state-court remedies are no longer available

12

because the prisoner failed to comply with the deadline for seeking state-court review or for taking
an appeal, those remedies are technically exhausted, but exhaustion in this sense does not
automatically entitle the habeas petitioner to litigate his or her claims in federal court. Instead, if
the petitioner procedurally defaulted those claims, the prisoner generally is barred from asserting
those claims in a federal habeas proceeding.” Woodford, 548 U.S. at 93 (internal citation omitted)
(citing Gray, 518 U.S. at 161-62; Coleman, 501 U.S. at 744-51).
However, “[t]he doctrine barring procedurally defaulted claims from being heard is not
without exceptions. A prisoner may obtain federal review of a defaulted claim by showing cause
for the default and prejudice from a violation of federal law.” Martinez, 566 U.S. at 10 (citing
Coleman, 501 U.S. at 750). “In Coleman, . . . the Supreme Court held that . . . a federal habeas
‘petitioner cannot claim constitutionally ineffective assistance of counsel in [state post-conviction]
proceedings’ to establish cause.” Fowler v. Joyner, 753 F.3d 446, 460 (4th Cir. 2014) (quoting
Coleman, 501 U.S. at 752). Subsequently, in Martinez, the Supreme Court recognized a “narrow
exception” to the rule stated in Coleman and held that, in certain situations, “[i]nadequate
assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s
procedural default of a claim of ineffective assistance at trial.” Martinez, 566 U.S. at 9. The Fourth
Circuit has summarized the exception recognized in Martinez:
a federal habeas petitioner who seeks to raise an otherwise procedurally
defaulted claim of ineffective-assistance-of-trial-counsel before the federal
court may do so only if: (1) the ineffective-assistance-of-trial-counsel claim is
a substantial one; (2) the “cause” for default “consists of there being no counsel
or only ineffective counsel during the state collateral review proceeding”; (3)
“the state collateral review proceeding was the initial review proceeding in
respect to the ineffective-assistance-of-trial-counsel claim”; and (4) state law
“requires that an ineffective-assistance-of-trial-counsel claim be raised in an
initial-review collateral proceeding.”

13

Fowler, 753 F.3d at 461 (internal brackets omitted) (quoting Trevino v. Thaler, ___ U.S. ___, 133
S. Ct. 1911, 1918 (2013)).
III. ANALYSIS
With the above standards of review and applicable law in mind, the court considers the
Magistrate Judge’s Report and Petitioner’s objections thereto. With one exception discussed
below, the court agrees that Respondent is entitled to summary judgment on the grounds for relief
asserted in Petitioner’s § 2254 petition.
A. Ground Two
Petitioner does not object to the Magistrate Judge’s determination that all but the last of
the five reasons undergirding Ground Two are procedurally defaulted, and the court perceives no
clear error in that determination. See Diamond, 416 F.3d at 315. Regarding the lone reason under
Ground Two that was not procedurally defaulted—that trial counsel rendered ineffective assistance
by failing to object to the admissibility of the photocopy of the two $20 bills on the basis of § 4453-582—the Magistrate Judge noted the PCR court’s conclusion that “this statute is not relevant
to the admissibility of the money used in a control[led] buy.” (ECF No. 8-3 at 26.) This court has
no authority to review the PCR court’s conclusion that monies used in a controlled buy cannot be
deemed inadmissible under § 44-53-582, as “it 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, 6768 (1991). Because the PCR court’s determination as to South Carolina law inexorably leads to
the conclusion that an objection to the admissibility of the photocopy on the basis of § 44-53-582
would have been meritless, the PCR court’s determination that trial counsel did not render
ineffective assistance by failing to object to its admissibility on that basis was not an unreasonable
application of Strickland. See Smith v. Padula, 444 F. Supp. 2d 531, 539 (D.S.C. 2006) (“[T]rial

14

counsel cannot be ineffective for failing to make a meritless futile objection.”); Moore v. United
States, 934 F. Supp. 724, 731 (E.D. Va. 1996) (“[T]here can be no claim of ineffective assistance
where . . . counsel is alleged to have failed to raise a meritless argument. Failure to raise a meritless
argument can never amount to ineffective assistance.”) Petitioner’s objections to the Report in this
regard are unavailing and thus overruled.
Regarding Petitioner’s fourth reason supporting Ground Two—that trial counsel rendered
ineffective assistance by failing to object to the admission of the photocopy on the ground that it
violated Petitioner’s Confrontation Clause rights—the Magistrate Judge determined that it was
without merit because Agent Curry adequately laid a foundation for the photocopy’s authenticity.
(See ECF No. 21 at 19.) Petitioner objects to the determination that Agent Curry’s testimony was
sufficient. (See ECF No. 25 at 13.) The court declines to adopt the reasoning set forth in the Report,
but accepts its recommendation on other grounds. Absent some sworn certification or statement as
to their authenticity or reliability, the admission of photographs or photocopies into evidence does
not implicate a criminal defendant’s rights under the Confrontation Clause. See United States v.
Brooks, 772 F.3d 1161, 1167 (9th Cir. 2014) (“The photographs of the seized parcel were not
‘witnesses’ against [the defendant]. They did not ‘bear testimony’ by declaring or affirming
anything with a ‘purpose.’ Therefore, their admission did not violate the Confrontation Clause.”
(quoting Washington v. Crawford, 541 U.S. 36, 51 (2004))); United States v. Lopez-Moreno, 420
F.3d 420, 436 (“While the Supreme Court chose in Crawford not to define precisely what is and
is not a testimonial statement, it is clear that the photocopy of the identification card does not
qualify as such because it in no way involves a witness bearing testimony.”). Therefore, trial
counsel’s objection to the admission of the photocopy based on the Confrontation Clause would
have been meritless, and trial counsel cannot be deemed to have rendered ineffective assistance by

15

failing to raise a meritless objection. See Padula, 444 F. Supp. 2d at 539; Moore, 934 F. Supp. at
731. Moreover, for this reason, Petitioner cannot meet Martinez’ cause and prejudice requirements.
See Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012) (“[A] PCR counsel would not be
ineffective for failure to raise an ineffective assistance of counsel claim with respect to trial counsel
who was not constitutionally ineffective.”). Petitioner’s objections, which address whether Agent
Curry’s testimony was sufficient to lay a foundation, are overruled.
Regarding Petitioner’s three remaining reasons supporting Ground Two—that trial counsel
rendered ineffective assistance by failing to object to the photocopy’s admission based on the
State’s failure to lay a proper foundation for its introduction, by failing to object to its admission
on grounds of irrelevance under S.C.R. Evid. 401 and 402, and by failing to object to Agent Curry’s
testimony that the photocopy was of the money used in the undercover drug buy—the Magistrate
Judge determined that trial counsel’s decisions to not object on these bases were strategic choices
and thus could not amount to deficient performance under Strickland. (See ECF No. 21 at 17-18.)
In his objections, Petitioner challenges this determination. (ECF No. 25 at 9-12.)
The court agrees with the Magistrate Judge that, if trial counsel pursued a strategy of
permitting challengeable evidence to be admitted in an attempt to highlight allegedly shoddy or
underhanded police work, Petitioner would be unable to meet Strickland’s deficient performance
prong. See Strickland, 466 U.S. at 690 (“[S]trategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable.”). However, as Strickland
itself strongly indicated, a trial counsel’s strategic choices might not insulate him from being
deemed to have performed deficiently if his choice is not sufficiently informed and considered.
See Mirzayance, 556 U.S. at 125-26 (applying Strickland); Pavel v. Hollins, 261 F.3d 210, 218 (2d
Cir. 2001) (“[A]lthough [counsel]’s decision was ‘strategic’ in some senses of the word, it was not

16

the sort of conscious, reasonably informed decision made by an attorney with an eye to benefitting
his client that the federal courts have denominated ‘strategic’ and been especially reluctant to
disturb.”); id. at 218 n.11 (collecting cases for the propositions that “strategic decisions” must be
“conscious” and “reasonably informed”); see also Lockett v. Anderson, 230 F.3d 695, 714 (5th
Cir. 2000) (“Strickland . . . demands more than the mere decision of a strategic choice by counsel.
It requires informed strategic choices.” (internal quotation marks omitted)), cited with approval in
Skipper v. Lee, 238 F.3d 414, at *9 (4th Cir. 2000) (argued but unpublished).
Here, the Magistrate Judge stated that the record supported the conclusion that trial counsel
was pursuing a strategy to attack the police investigation. As a general matter, this is an accurate
description of the record: trial counsel’s lines of cross-examination and closing argument attest to
this strategy, and he testified to the same effect at the PCR hearing. However, the more specific
question—whether trial counsel made an informed, strategic decision to forego challenges to the
photocopy’s admissibility in favor of using the photocopy and testimony relating to it in efforts to
attack the police investigation—is not so clear-cut. Although the trial record evinces trial counsel’s
general strategy, it does not disclose whether he made an informed, strategic decision to permit,
rather than object to, the admission of the photocopy. If anything, the trial record suggests that,
faced with such a choice, trial counsel would have opted to exclude the photocopy, as he objected
to its admission under the best evidence rule.
Trial counsel’s testimony at the PCR hearing likewise does not clearly show that he
strategically chose to allow the photocopy to be admitted. He did testify that he strategically
decided to not argue with Agent Curry regarding whether Agent Curry’s re-depositing the two $20
bills in the account was the procedurally correct action, because, in his estimation, it was better to
make that point to the jury rather than argue it with Agent Curry. (See ECF No. 8-2 at 130.) This

17

testimony is of little use here, as trial counsel described the choice to be made as whether or not to
argue with a witness regarding already-admitted evidence and did not mention any choice
regarding whether or not to challenge the admissibility of that evidence in the first place. More
relevant here is trial counsel’s testimony that, if he had successfully prevented the photocopy’s
admission under § 44-53-582, he could not say that such a result would not have affected the trial’s
outcome. (See id. at 144.) This testimony suggests that, had the choice been squarely presented,
trial counsel would have opted to exclude the photocopy, for, absent some indication that trial
counsel believed admission of the photocopy would prove even more advantageous, the court
should not presume that trial counsel would forego an advantage that he believed would favorably
affect the trial’s outcome. In other words, when reasonable inferences are drawn in Petitioner’s
favor, the only evidence on the issue in the record supports the conclusion that trial counsel did
not make a strategic decision (as that term is understood for purposes of an ineffective assistance
claim) to permit the admission of the photocopy. Instead, his strategy was to exclude the
photocopy.
Because the only evidence on the issue in the record strongly indicates that trial counsel
would have chosen to have the photocopy excluded rather than admitted, the court cannot agree
that there is no genuine dispute that trial counsel made a strategic decision to permit the admission
of the photocopy in an effort to attack the police investigation. Thus, the court is compelled to
reject the Magistrate Judge’s rationale for recommending that summary judgment be granted to
Respondent on the three remaining reasons underlying Ground Two. Although, in the context of
deciding an ineffective assistance claim in a § 2254 petition, there is a strong presumption that trial
counsel’s performance fell within the wide range of reasonable professional performance,
Strickland, 466 U.S. at 689, the Magistrate Judge did not determine whether, absent the conclusion

18

that the failure to object to the photocopy’s admission was indisputably a conscious strategy, there
is sufficient evidence on record to overcome that presumption. Moreover, the evidence the court
has summarized in the two preceding paragraphs, in the absence of other evidence on the issue,
appears sufficient to overcome the presumption. See id. (“[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.” (internal quotation marks omitted)
(emphasis added)); id. at 690 (“A convicted defendant making a claim of ineffective assistance
must identify the acts or omissions of counsel that are alleged not to have been the result of
reasonable professional judgment. The court must then determine whether, in light of all the
circumstances, the identified acts or omissions were outside the wide range of professionally
competent assistance.”).
For one of Petitioner’s three remaining reasons supporting Ground Two, the court’s
rejection of the Magistrate Judge’s rationale does not warrant rejecting the Magistrate Judge’s
ultimate recommendation. Regarding Petitioner’s third reason supporting Ground Two—that trial
counsel rendered ineffective assistance by failing to object to the photocopy’s admission on the
basis that the photocopy was irrelevant under Rules 401 6 and 402 7—the court concludes that an
objection on this basis would have been meritless. Assuming the photocopy is what its proponent
claimed it to be—a photocopy of two $20 bills that were withdrawn from an account used to

6

“‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than it would
be without the evidence.” S.C.R. Evid. 401.
7

“All relevant evidence is admissible, except as otherwise provided by [law]. Evidence which is
not relevant is not admissible.” S.C.R. Evid. 402.
19

provide cash for undercover drug buys, issued by Agent Curry to Agent Moore, and recovered by
Agent Curry near where the undercover drug buy occurred (see ECF No. 8-1 at 50-51, 55)—the
photocopy is relevant because it tends to make the occurrence of a money-for-drugs transaction
more probable than if the photocopy were not in existence. Evidence of the very existence of the
bills makes it more likely that they were withdrawn from the account, that they were issued to
Agent Moore, that they were present during Agent Moore’s interaction with Petitioner, that they
were exchanged for drugs, that they were thrown to the ground, and that they were later recovered
from the ground by Agent Curry. Moreover, evidence of the bills’ existent corroborates the
testimony of Agent Curry and Agent Moore, which makes their testimony that a money-for-drugs
transaction occurred more likely.
In order to conclude that the photocopy of the bills is irrelevant, the court would first have
to conclude that the photocopy is not what its proponent claims it is, i.e. that it is not a photocopy
of bills used in the undercover drug buy but, instead, a photocopy of two bills unrelated to the
events underlying Petitioner’s conviction for distribution of crack cocaine. If the court concluded
that the State had failed to demonstrate that the photocopy was of two bills actually issued to Agent
Moore and used in the undercover drug buy, then the photocopy would be irrelevant, as the
existence of two $20 bills unrelated to the events at issue would not tend to make the existence of
a fact of consequence in the criminal case against Petitioner more or less likely. However, this
argument that the photocopy is irrelevant hinges on a determination that the State failed to
sufficiently demonstrate that the photocopy is what the State claimed it to be. Petitioner himself
appears to recognize that a prerequisite to finding the photocopy irrelevant is a determination that
the photocopy is not what the State claimed it to be. (See ECF No. 25 at 12 (“Trial Counsel clearly
should have argued that the evidence depicted in [the photocopy] was not relevant to the charges

20

before the Court where the State had not produced competent evidence connecting that evidence
to Petitioner.”).) However, such a determination would render the photocopy inadmissible because
it was not properly authenticated. See S.C.R. Evid. 901(a) (“The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient to support
a finding that the matter in question is what its proponent claims.”). After a determination that the
photocopy was inadmissible under Rule 901(a), a subsequent objection based on the photocopy’s
irrelevance under Rules 401 and 402 would have been unnecessary and likely denied as moot.
In short, trial counsel’s objection to the admission of the photocopy solely on the basis of
its irrelevance under Rules 401 and 402 would have been meritless, and, thus, his failure to raise
such an objection cannot amount to ineffective assistance. See Padula, 444 F. Supp. 2d at 539;
Moore, 934 F. Supp. at 731. For this reason, Petitioner cannot demonstrate the cause and prejudice
needed under Martinez for the court to entertain this procedurally defaulted ineffective assistance
claim. See Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012). Petitioner’s objections in regard
to the third reason underlying Ground Two are overruled.
Regarding Petitioner’s first and second reasons supporting Ground Two—that trial counsel
rendered ineffective assistance by failing to object to the photocopy’s admission on the basis that
the State failed to lay a proper foundation for its admission and by failing to object to Agent Curry’s
testimony that the photocopy depicted two bills used in the undercover drug buy—the court
concludes that it cannot agree with the Magistrate Judge’s ultimate recommendation based on the
record before it. Having concluded that the record does not demonstrate that trial counsel’s actions
in this regard were the result of an informed strategic decision, the court is left to determine
whether Petitioner has asserted a substantial claim of ineffective assistance of trial counsel and

21

whether PCR counsel’s failure to raise these arguments in the PCR proceedings amounts to cause
and prejudice for Petitioner’s procedural default of the arguments.
Unlike Petitioner’s three other reasons supporting Ground Two, the court cannot conclude
on the record before it that the two remaining reasons are meritless. In its consideration of the three
reasons above, the court was able to determine that the objections Petitioner asserts trial counsel
should have made would have been overruled, and, thus, trial counsel’s failure to make the
objections did not amount to deficient performance, did not prejudice Petitioner, and could not
support an assertion of cause and prejudice under Martinez. For the remaining two reasons, the
same analysis does not apply. The first reason—that trial counsel was ineffective for failing to
object to the photocopy’s admission based on the State’s failure to lay a proper foundation—
appears to be premised on S.C.R. Evid. 901(a). The second reason—that trial counsel was
ineffective for failing to object to Agent Curry’s testimony—appears to be premised on S.C.R.
Evid. 602. The court is aware of no authority standing for the proposition that an objection to the
photocopy based on Rule 901(a) or an objection to Agent Curry’s testimony based on Rule 602
would have been overruled. Thus, the court cannot conclude on the record before it that the two
remaining reasons supporting Ground Two are meritless, such that Petitioner would be unable to
demonstrate deficient performance and resulting prejudice.
Rather than continuing to assess them in this order, the court believes it is in the interest of
expeditious adjudication to deny Respondent’s summary judgment motion with respect to these
two reasons under Ground Two at this point. See Robinson v. McFadden, No. 5:15-cv-04718-JMC,
2016 WL 5661694, at *4 (D.S.C. Sept. 30, 2016). The court notes that, because the Magistrate
Judge’s analysis with respect to these two reasons addressed only whether trial counsel’s
performance was the result of a strategic decision, the Report did not address whether trial

22

counsel’s performance was otherwise deficient, whether, if so, prejudice resulted from his failure
to raise the objections to which Petitioner points, whether, if so, these defaulted claims of
ineffective assistance are substantial, and whether, if so, PCR counsel’s failure to assert the
defaulted claims amounts to cause and prejudice under Martinez. The court also notes that the
parties’ arguments with respect to these two reasons under Ground Two are somewhat cursory and
provide little authority to guide judicial analysis. See id. Denying summary judgment without
prejudice at this point will allow Respondent to refile his motion and will allow the parties to
present more fully developed arguments on the issues. See id.
B. Ground Five
In Ground Five, Petitioner points to eight different instances in which he alleges trial
counsel rendered ineffective assistance by not adequately cross-examining the State’s witnesses.
The Magistrate Judge recommended granting summary judgment to Respondent on Ground Five
for two reasons. First, the Magistrate Judge explained that Petitioner had failed to present any
evidence or argument that he was prejudiced by trial counsel’s allegedly inadequate crossexaminations. Despite submitting six pages of objections with respect to Ground Five, Petitioner
does not challenge the Report on this point, and the court is hard-pressed to discern any argument
in Petitioner’s objections or in his other filings that the result of the criminal prosecution would
have been different had trial counsel questioned the State’s witnesses in the manner described in
Ground Five. For this reason alone, the court would accept the Magistrate Judge’s recommendation
to grant summary judgment as to this ground for relief
Second, the Magistrate Judge explained that Ground Five merely contained a laundry list
of questions that Petitioner asserts trial counsel should have asked the State’s witnesses and that
formulating the questions to ask witnesses at trial is a quintessential tactical decision that is nearly

23

unassailable under habeas review. See Hunt v. Nuth, 57 F.3d 1327, 1333 (4th Cir. 1995)
(disfavoring “criticisms [that] . . . constitute a grading of the quality of counsel’s crossexamination” (internal quotation marks omitted)); Mosley v. United States, Nos. DKC 07-1520;
DKC 03-0194, 2011 WL 1230888, at *2 (D. Md. March 29, 2011) (“[T]actical decisions such as
what questions to ask of witnesses are virtually unchallengeable.” (internal quotation marks
omitted)); id. (collecting cases).
In his objections, Petitioner contends that, although the Magistrate Judge is correct that
trial counsel’s choice of questions for witnesses is a matter of strategy that normally is not a basis
for an ineffective assistance claim, his trial was out of the ordinary because trial counsel’s
questions failed to “demonstrate[] the degree to which the execution of this [undercover drug buy]
was sloppy and the testimony concerning it unreliable.” (ECF No. 25 at 18.) The court concludes
that this objection is belied by the record. As the court explained above, trial counsel’s strategy
was to attack the police investigation as shoddy or underhanded, and this strategy is manifested
not only from the face of the trial court record, which shows trial counsel’s cross-examination and
closing arguments were focused solely on this point, but also trial counsel’s testimony at the PCR
hearing. Moreover, in questioning witnesses and making his closing argument, trial counsel
attempted to bring out many of the issues on Petitioner’s laundry list. (See ECF No. 8-1 at 61-62
(asking Agent Curry “[w]hat happened to the actual bills” and “what [were] the procedure[s]” to
“keep track” of the bills and to “identify that specific money”); id. at 71-73 (eliciting from Agent
Curry that he had not labeled the two parcels of drugs so as to identify their respective sources);
id. at 110, 112-13 (eliciting from Agent Moore that he had been engaged in undercover buys earlier
that day and that he usually places drugs in door pocket and asking whether any officer had
searched his vehicle before commencing undercover buy at issue and whether the vehicle was the

24

same vehicle used in earlier undercover drug buys); id. at 113-14 (asking whether video is accurate
depiction of the undercover drug buy); id. at 181 (arguing that Agent Curry had testified that police
“did nothing to record the money in this case”); id. at 184 (rhetorically asking jury why video did
not depict Agent Moore’s or Petitioner’s hands); id. at 185 (arguing that Agent Curry never
testified that he saw Petitioner throw anything); id. at 186-87 (pointing out that Agent Moore could
have placed drugs obtained during previous undercover buys in door pocket and neglected to
remove them).) Accordingly, the court overrules the objection and agrees with the Magistrate
Judge that Respondent is entitled to summary judgment on Ground Five because Petitioner has
failed to demonstrate that trial counsel’s performance was deficient.
C. Grounds One, Three, and Four
The Magistrate Judge assessed Grounds One, Three, and Four of the petition, and her
Report recommends that the court grant Respondent summary judgment on these grounds for
relief. Petitioner has not objected to the Report in this regard, and the court perceives no clear error
in the Magistrate Judge’s assessment or recommendation as to these three grounds for relief. See
Diamond, 416 F.3d at 315. Accordingly, the court concludes that summary judgment is appropriate
for Grounds One, Three, and Four.
IV. CONCLUSION
Upon careful consideration of the entire record, the court ACCEPTS IN PART and
REJECTS IN PART the Magistrate Judge’s Report and Recommendation (ECF No. 21).
Respondent’s Motion for Summary Judgment (ECF No. 9) is GRANTED IN PART with respect
to Grounds One and Three through Five and with respect to the third, fourth, and fifth reasons
supporting Ground Two and DENIED IN PART WITHOUT PREJUDICE with respect to the
first and second reasons supporting Ground Two. Grounds One and Three through Five and the

25

third, fourth, and fifth reasons supporting Ground Two (ECF No. 1) are DISMISSED WITH
PREJUDICE. This matter is RECOMMITTED to the Magistrate Judge for consideration of any
further motions and briefings in accordance with this order.
Certificate of Appealability
The law governing certificates of appealability provides that:
(c)(2) A certificate of appealability may issue… only if the applicant has made a
substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability… shall indicate which specific issue or issues
satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists
would find this court’s assessment of his constitutional claims is debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell,
537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate of
appealability has not been met.
IT IS SO ORDERED.

United States District Court Judge
March 29, 2017
Columbia, South Carolina

26