Goodman v. Stirling et al

Filing 22

ORDER RULING ON REPORT AND RECOMMENDATION: The Court overrules Petitioner's objections (Dkt. No. 20) and adopts the R&R (Dkt. No. 18) as the Order of the Court. The Court dismisses the Petition with prejudice and declines to issue a certificate of appealability. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 2/6/24. (ltap, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
Tervin Goodman,
v.

Case No. 2:23-cv-00206-RMG

Petitioner,
ORDER AND OPINION

Warden of Broad River Correctional
Institution,
Respondent.

This matter is before the Court on the Report and Recommendation (“R&R”) of the
Magistrate Judge (Dkt. No. 18), recommending that the Court grant summary judgment for
Respondent and dismiss the Petition for a writ of habeas corpus. Petitioner objected to the R&R
(Dkt. No. 20), and Respondent relied in support of the R&R (Dkt. No. 21). For the reasons set
forth below, the Court adopts the R&R as the Order of the Court and dismisses the Petition.
I.

Background
On September 19, 2011, Petitioner was convicted and sentenced for murdering Mary
Hunter, a sixty-seven-year-old woman, and for burglarizing her home. (Dkt. No. 1 at 1). For each
conviction, he was sentenced to life in prison. (Id.). Petitioner did not file a direct appeal of his
conviction or sentence. (Id. at 2).
On May 9, 2012, Petitioner filed his first application for post-conviction relief (“PCR”),
arguing that his sentence was unconstitutional in light of Graham v. Florida, 560 U.S. 48 (2010),
given that he was seventeen years old when he committed the crime. (Dkt. No. 10 at 2). On April
7, 2016, Petitioner’s first-degree burglary sentence was vacated, and he was granted a new
sentencing hearing. (Id.).

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On October 5, 2017, the Honorable William H. Seals, Jr presided over Petitioner’s
resentencing hearing. (Id.). Upon Petitioner’s motion, Judge Seals agreed to address resentencing
for both charges during the October 5, 2017 hearing. (Id.). After considering the evidence
presented by Petitioner—who was represented by Counsel Timothy Murphy—and the State, Judge
Seals sentenced Petitioner to life in prison for murder and sentenced Petitioner to a consecutive
thirty-year prison sentence for first-degree burglary. (Id. at 3). Petitioner did not appeal his new
sentence. (Id.).
The time between the conclusion of Petitioner’s first PCR action and the commencement
of his second PCR is legally significant. See infra III.A. Petitioner was resentenced on October
5, 2017, and did not appeal his new sentence. Petitioner filed his second PCR application on
August 6, 2018.
On August 6, 2018, Petitioner filed his second PCR application. (Dkt. No. 1 at 4).
Petitioner asserted that his counsel was ineffective because he: (1) failed to present proper
mitigation; (2) failed to object to certain testimony; and (3) failed to file an appeal on Petitioner’s
behalf. (Id.). On April 15, 2019, Judge Curtis denied Petitioner’s application for PCR:
The Court viewed the testimony presented at the evidentiary
hearing, observed the witnesses presented at the hearing, passed
upon their credibility, and weighed the testimony accordingly.
Further, this Court has reviewed the Clerk of Court records
regarding the subject convictions, the plea transcript, and the
Applicant’s records from the South Carolina Department of
Corrections, the application for post-conviction relief, and the legal
arguments made by the attorneys. . .
***
The Court finds Applicant has failed to meet his burden of proving
he is entitled to post-conviction relief on any of his allegations of
ineffective assistance of counsel. Applicant has failed to prove both
deficiency on the part of Counsel and any prejudice therefrom.
Furthermore, after observing the witnesses and passing on their
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credibility, this court finds Counsel’s testimony to be credible. By
contrast, this Court finds Applicant’s testimony lacks credibility.
(Dkt. No. 10-1 at 159–60).
On July 29, 2020, Petitioner filed a Petition for Writ of Certiorari appealing the second
PCR court’s Order of Dismissal. (Dkt. No. 10-4). On August 19, 2022, certiorari was denied.
(Dkt. No. 10-8). The remittitur was issued on September 15, 2022, and filed on September 19,
2022. (Dkt. No. 10-9).
Petitioner then filed the instant habeas petition on January 14, 2023. (Dkt. No. 1.) In his
Petition, he raises the following grounds for relief:
(1) Petitioner’s resentencing hearing did not comport with the
Constitutional requirements set forth in Miller v. Alabama and
his life without parole sentence is in violation of the Eighth
Amendment[.]
***
(2) Petitioner received ineffective assistance of counsel when trial
counsel failed to appeal Petitioner’s sentence of life without
parole for an offense he committed as [a] juvenile.
(Id. at 17, 21).
After requesting and receiving an extension of time, Respondent filed a Return and Motion
for Summary Judgment on May 17, 2023. (Dkt. Nos. 10, 11) Petitioner filed a Response to the
Motion for Summary Judgment on May 30, 2023. (Dkt. No. 12) Respondent replied on June 6,
2023. (Dkt. No. 14). On December 13, 2023, the Magistrate Judge issued an R&R (Dkt. No. 18),
recommending that the Court grant Respondent’s motion for summary judgment, dismiss the case
with prejudice, and decline to issue a certificate of appealability. Petitioner objected to the R&R
(Dkt. No. 20), and Respondent replied in support of the R&R (Dkt. No. 21). This matter is ripe
for the Court’s review.

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II.

Legal Standard
A. Report and Recommendation
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
the Court. See 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 and Recommendation to which
specific objection is made. Additionally, the Court may “accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
Where the plaintiff fails to file any specific objections, “a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005) (internal quotation omitted).
B. Summary Judgment
Summary judgment is appropriate if a party “shows that there is no genuine dispute as to
any material fact” and that the movant is entitled to judgment as a matter of law. FED. R. CIV. P.
56(a). In other words, summary judgment should be granted “only when it is clear that there is no
dispute concerning either the facts of the controversy or the inferences to be drawn from those
facts.” Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). “In determining
whether a genuine issue has been raised, the court must construe all inferences and ambiguities in
favor of the nonmoving party.” HealthSouth Rehab. Hosp. v. Am. Nat’l Red Cross, 101 F.3d 1005,
1008 (4th Cir. 1996). The party seeking summary judgment shoulders the initial burden of
demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986).
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Once the moving party has made this threshold demonstration, the non-moving party, to
survive the motion for summary judgment, may not rest on the allegations averred in his pleadings.
Id. at 324. Rather, the non-moving party must demonstrate that specific, material facts exist that
give rise to a genuine issue. Id. Under this standard, “[c]onclusory or speculative allegations do
not suffice, nor does a ‘mere scintilla of evidence’” in support of the non-moving party’s case.
Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (quoting Phillips v.
CSX Transp., Inc., 190 F.3d 285, 287 (4th Cir. 1999)).
C. Habeas Corpus
1. Standard for Relief
Claims adjudicated on the merits in a state court proceeding cannot be a basis for federal
habeas corpus relief unless the decision was “contrary to, or involved an unreasonable application
of clearly established federal law as decided by the Supreme Court of the United States,” or the
decision “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)(1), (2). Section 2254(d) codifies
the view that habeas corpus is a “‘guard against extreme malfunctions in the state criminal justice
systems,’ not a substitute for ordinary error correction through appeal.” Harrington v. Richter,
562 U.S. 86, 102–03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens,
J., concurring in judgment)). “A state court’s determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state
court’s decision.” Id. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see
also White, 134 S. Ct. at 1702 (stating that “‘[a]s a condition for obtaining habeas corpus from a
federal court, a state prisoner must show that the state court’s ruling on the claim being presented
in federal court was so lacking in justification that there was an error well understood and
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comprehended in existing law beyond any possibility for fairminded disagreement’”) (quoting
Harrington, 562 U.S. at 103).
Therefore, when reviewing a state court’s application of federal law, “a federal habeas
court may not issue the writ simply because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 410 (2000);
see also White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (describing an “unreasonable application”
as “objectively unreasonable, not merely wrong” and providing that “even clear error will not
suffice”) (internal quotation marks and citation omitted). Moreover, review of a state court
decision does not require an opinion from the state court explaining its reasoning. See Harrington
at 98 (finding that “[t]here is no text in [§ 2254] requiring a statement of reasons” by the state
court). If no explanation accompanies the state court’s decision, a federal habeas petitioner must
show that there was no reasonable basis for the state court to deny relief. Id. Pursuant to § 2254(d),
a federal habeas court must (1) determine what arguments or theories supported or could have
supported the state court’s decision; and then (2) ask whether it is possible that fairminded jurists
could disagree that those arguments or theories are inconsistent with the holding of a prior decision
of the United States Supreme Court. Id. at 102. The state court factual determinations are
presumed to be correct, and the petitioner has the burden of rebutting this presumption by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1).
2. Procedural Default
A habeas corpus petitioner may obtain relief in federal court only after he has exhausted
his state court remedies. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a
habeas petitioner must present his claims to the state’s highest court.” Matthews v. Evatt, 105 F.3d
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907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F.3d 192
(4th Cir. 2011); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction
Relief Cases, 471 S.E.2d 454, 454 (S.C. 1990) (holding that “when 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.”). To exhaust his available state court
remedies, a petitioner must “fairly present[] to the state court both the operative facts and the
controlling legal principles associated with each claim.” Longworth v. Ozmint, 377 F.3d 437, 448
(4th Cir. 2004) (internal quotation marks and citation omitted).
Generally, a federal habeas court should not review the merits of claims procedurally
defaulted (or barred) under independent and adequate state procedural rules. Lawrence v. Branker,
517 F.3d 700, 714 (4th Cir. 2008). For a procedurally defaulted claim to be properly considered
by a federal habeas court, the petitioner must “demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider
the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S.
722, 750 (1991).
D. Miller v. Alabama
In Miller v. Alabama, the Supreme Court held that “mandatory life without parole for those
under the age of 18 at the time of their crimes violates the Eighth Amendment[].” 567 U.S. 460,
465 (2012). The South Carolina Supreme Court has held that “whether their sentence is mandatory
or permissible, any juvenile offender who receives a sentence of life without the possibility of
parole is entitled to the same constitutional protections afforded by the Eighth Amendment’s
guarantee against cruel and unusual punishment.” Aiken v. Byars, 410 S.C. 534, 544 (2014).
As South Carolina Supreme Court stated in Aiken,
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Miller establishes a specific framework, articulating that the factors
a sentencing court consider at a hearing must include: (1) the
chronological age of the offender and the hallmark features of youth,
including “immaturity, impetuosity, and failure to appreciate the
risks and consequence”; (2) the “family and home environment” that
surrounded the offender; (3) the circumstances of the homicide
offense, including the extent of the offender’s participation in the
conduct and how familial and peer pressures may have affected him;
(4) the “incompetencies associated with youth—for example, [the
offender’s] inability to deal with police officers or prosecutors
(including on a plea agreement) or [the offender’s] incapacity to
assist his own attorneys”; and (5) the “possibility of rehabilitation.”
410 S.C. at 544 (quoting Miller, 567 U.S. at 477).
E. Ineffective Assistance of Counsel
When claiming habeas relief due to ineffective assistance of counsel at trial, a petitioner
must show (1) that his trial counsel’s performance fell below an objective standard of
reasonableness, and (2) that a reasonable probability exists that but for counsel’s error, the result
of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984).
The Court must apply a “strong presumption” that trial counsel’s representation fell within the
“‘wide range of reasonable professional assistance,” and the errors must be “so serious that counsel
was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.”
Harrington, 131 S. Ct. at 787. This is a high standard, one in which a habeas petitioner alleging
prejudice must show that counsel’s errors deprived him “of a fair trial, a trial whose result is
reliable.” Strickland, 466 U.S. at 687. That the outcome would have been “reasonably likely”
different but for counsel’s error is not dispositive of the “prejudice” inquiry. Rather, the Court
must determine whether the result of the proceeding was fundamentally unfair or unreliable.
Harrington, 131 S. Ct. at 787–88; Strickland, 466 U.S. at 694.
The Supreme Court has cautioned that “‘[s]urmounting Strickland’s high bar is never an
easy task[,]’ . . . [e]stablishing that a state court’s application of Strickland was unreasonable under
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§ 2254(d) is all the more difficult.” Harrington, 131 S. Ct. at 788 (quoting Padilla v. Kentucky,
130 S. Ct. 1473, 1485 (2010)). When evaluating an ineffective assistance of counsel claim, the
petitioner must satisfy the highly deferential standards of 28 U.S.C. § 2254(d) and Strickland “in
tandem,” making the standard “doubly” more difficult. Id. In such circumstances, the “question
is not whether counsel’s actions were unreasonable,” but whether “there is any reasonable
argument that counsel satisfied Strickland’s ‘deferential standards.” Id.
III.

Discussion
1. Objection Number One: Timeliness under the AEDPA
Petitioner objects to the Magistrate Judge’s finding that the Petition is untimely under the

one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). 28 U.S.C. § 2244(d)(1). There are a few dates that are relevant to the Court’s review
of this issue:
September 19, 2011: Petitioner convicted and sentenced.
May 9, 2012: Petitioner filed first PCR.
October 5, 2017: Petitioner resentenced.
(time between conclusion of first PCR and filing of second PCR)
August 6, 2018: Petitioner filed second PCR.
Petitioner argues that the time between October 5, 2017 (when he was resentenced) and
August 6, 2018 (when he filed his second PCR) should not be considered for the purposes of the
statute of limitations. (Dkt. No. 20 at 4). He argues that by virtue of filing a second PCR, the
conclusion of the first PCR did not amount to a final judgment that resumes the statute of
limitations. (Id.).
The Court finds that Petitioner’s objection is without merit. The one-year statute of
limitations only tolls during the pendency of “a properly filed application for State post-conviction
or other collateral review with respect to the pertinent judgment or claim.” 28 U.S.C. § 2244(d)(2).
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Between October 5, 2017 and August 6, 2018, Petitioner had no properly filed applications for
State post-conviction review. Therefore, that time clearly counts toward the statute of limitations.
Accordingly, the Court overrules Petitioner’s objection and finds that the petition is untimely. See
(Dkt. No. 18 at 8–11).
2. Objection Number Two: Procedural Default of Ground One
Petitioner objects to the Magistrate Judge’s finding that Ground One is procedurally
defaulted because Petitioner did not appeal his sentence. (Dkt. No. 18 at 15). There is no dispute
that Petitioner did not appeal his sentence. For a procedurally defaulted claim to be properly
considered by a federal habeas court, the petitioner must “demonstrate cause for the default and
actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson,
501 U.S. 722, 750 (1991). Petitioner objects that he has made this showing such that his procedural
default is excused. (Dkt. No. 20 at 5). As discussed infra III.4, the Court finds that Petitioner’s
ineffective assistance of counsel claims fails. Accordingly, the Court overrules Petitioner’s
objection. The Court finds that Petitioner procedurally defaulted Ground One and that the default
is not excused.
3. Objection Number Three: Merits of Ground One
Petitioner objects to the Magistrate Judge’s finding that Petitioner’s resentencing hearing
comported with the requirements set forth in Miller v. Alabama. (Dkt. No. 20 at 7). Petitioner’s
objected that the resentencing judge “ignored the evidence that contradicted the picture the court
choice to paint of the Petitioner.” (Dkt. No. 20 at 8). Miller “allowed life-without-parole sentences
for defendants who committed homicide when they were under 18, but only so long as the sentence
is not mandatory—that is, only so long as the sentencer has discretion to ‘consider the mitigating
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qualities of youth’ and impose a lesser punishment.” Jones v. Mississippi,141 S. Ct. 1307, 1314
(2021) (quoting Miller, 567 U.S. at 476).
The Court overrules Petitioner’s objections and finds, like the Magistrate Judge, that the
resentencing judge listened to all the evidence and arguments presented and considered each of
the requite factors before resentencing Petitioner. Although it is clear that Petitioner disagrees
with the findings of the resentencing judge, the judge considered the Miller factors and set forth a
reasonable explanation for the sentence he imposed. See (Dkt. No. 10-1 at 111-14).
Petitioner does not argue that the resentencing judge was required to make a different
finding or that judge’s finding contrary to law. This Court’s role is not to second guess the
reasonable fact finding of a state court but “to guard against extreme malfunctions in the state
criminal justice systems.” Harrington v. Richter, 562 U.S. 86, 102 (2011) (quotations and citations
omitted). Accordingly, the Court overrules Petitioner’s objections and finds that resentencing
Judge reasonably applied Miller.
4. Objection Number Four: Merits of Ground Two
Petitioner objects to the Magistrate Judge’s finding that Petitioner cannot make the
requisite showing that his sentencing counsel was ineffective for failing to inform him of his right
to appeal his sentence following the resentencing hearing. (Dkt. No. 20 at 8–9). Petitioner argues
that counsel “simply failed to undertake the simple task of consulting with his client about an
appeal after the resentencing hearing and as such violated Petitioner’s rights.” (Id. at 9).
The Court overrules Petitioner’s objections. When evaluating an ineffective assistance of
counsel claim, the petitioner must satisfy the highly deferential standards of 28 U.S.C. § 2254(d)
and Strickland “in tandem,” making the standard “doubly” more difficult.

Id.

In such

circumstances, the “question is not whether counsel’s actions were unreasonable,” but whether
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“there is any reasonable argument that counsel satisfied Strickland’s ‘deferential standards.” Id.
As laid out supra I, Judge Curtis “viewed the testimony presented at the evidentiary hearing,
observed the witnesses presented at the hearing, passed upon their credibility, and weighed the
testimony accordingly.” (Dkt. No. 10-1 at 159). From her front-row seat, she found that Petitioner
“failed to meet his burden of proving he is entitled to post-conviction relief on any of his
allegations of ineffective assistance of counsel.” (Id. at 160). As the Magistrate Judge reasoned,
this Court’s role is not to second-guess the state court’s fact-finding; it is to “guard against extreme
malfunctions in the state criminal justice systems.” Harrington, 562 U.S. at 102 (citation and
internal quotation marks omitted). Accordingly, the Court overrules Petitioner’ objections and
finds that Petitioner’s ineffective assistance of counsel claim fails.
5. Certificate of Appealability
The governing law provides that:
(c)(2) A certificate of appealability may issue . . . only if the
applicant has made a substantial showing of the denial of a
constitutional right.
(c)(3) The certificate of appealability . . . shall indicate which
specific issue or issues satisfy the showing required by paragraph
(2).
28 U.S.C. § 2253(c).

An incarcerated person satisfies the standard by demonstrating that

reasonable jurists would find this Court’s assessment of his constitutional claims debatable or
wrong and that any dispositive procedural ruling by the district court is likewise debatable. See
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000);
Rose v. Lee, 252 F.3d 676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of
a certificate of appealability has not been met. Therefore, a certificate of appealability is denied.

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IV.

Conclusion
Based on the reasons set forth above, the Court overrules Petitioner’s objections (Dkt. No.

20) and adopts the R&R (Dkt. No. 18) as the Order of the Court. The Court dismisses the Petition
with prejudice and declines to issue a certificate of appealability.
AND IT IS SO ORDERED.

_s/ Richard Mark Gergel_
Richard Mark Gergel
United States District Judge
February 6, 2024
Charleston, South Carolina

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