Geiger v. Padula

Filing 42

ORDER RULING ON REPORT AND RECOMMENDATION. The court adopts, as modified, the Magistrate Judges Report and Recommendation (Dkt. # 38 ). It is therefore ORDERED that Respondents Summary Judgement Motion 24 is GRANTED. Respondent shall have twenty days to file a subsequent motion for summary judgment addressing Ground Two. It is further ordered that a certificate of appealability is denied. Signed by Honorable Timothy M Cain on 03/06/2013. (dsto, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
Eddie D. Geiger,

)
)
Petitioner,
)
)
v.
)
)
)
Anthony Padula,
)
)
Respondent.
)
________________________________ )

C/A No. 4:12-603-TMC

OPINION & ORDER

Petitioner Eddie D. Geiger (“Petitioner”), a state prisoner proceeding pro se, filed
this habeas petition pursuant to 28 § U.S.C. 2254 on March 2, 2012. On August 13,
2012, Respondent Anthony Padula (“Respondent”) filed a Motion for Summary
Judgement. Petitioner filed a response opposing the motion. The Magistrate Judge filed
a Report and Recommendation (“Report”) on February 1, 2013, recommending that the
Respondent’s Summary Judgment Motion be denied in part and granted in part.1 (Dkt. #
38). Petitioner filed objections to the Report and Recommendation on February 20,
2013. (Dkt. # 40). For the reasons set forth below, the court overrules the Petitioner's
objections, adopts the Magistrate Judge's Report, as modified, and grants Respondent
Summary Judgment Motion.
The Magistrate Judge makes only a recommendation to this court which 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 is charged with
making a de novo determination of those portions of the Report and Recommendation
to which specific objections are made, and the court may accept, reject, or modify, in

1

The Magistrate Judge’s Report and Recommendation is made in accordance
with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 for the District of South Carolina.

whole or in part, the Magistrate Judge’s recommendation or recommit the matter with
instructions. See 28 U.S.C. § 636(b)(1).
Applicable Law
Because Petitioner filed his petition in this court after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §
2244(d)(1) governs the review of his claims. Habeas relief is available only when a
state-court decision 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)
the state-court decision was based on an unreasonable determination of the facts in
light of the evidence presented in state court. 28 U.S.C. § 2254(d). Burch v. Corcoran,
273 F.3d 577, 583 (4th Cir. 2001).
The Supreme Court has explained that a State court adjudication is contrary to
clearly established federal law, only if “the state court arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of law or if the state court decides a
case differently than [the Supreme] Court has on a set of materially indistinguishable
facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). An unreasonable application is
different from an incorrect application of federal law.

This court may not grant habeas

relief even if it concludes in its own independent review that the relevant state court
merely made an incorrect or erroneous application of the correct federal principles. Id.
“When assessing the reasonableness of the state court's application of federal
law, the federal courts are to review the result that the state court reached, not whether
[its decision] [was] well reasoned.” Wilson v. Ozmint, 352 F.3d 847, 855 (4th Cir. 2003).
The standard of review to be applied is highly deferential to the rulings of the state
courts and state-court decisions are to be given the benefit of the doubt. Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam). A state court's factual determination is
2

presumed correct, unless rebutted by clear and convincing evidence. See 28 U.S.C. §
2254(e)(1); Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir. 2010).
Discussion
In his objections, Petitioner specifically states that he has no objections to the
procedural background and history set forth in the Report.
Accordingly, the court adopts these parts of the Report.

(Pet’r’s Obj. at 2).

For ease of reference, the

court will set out the applicable facts here.
In the early morning hours of January 31, 2003, Annie J. placed a
911 call reporting she had been sexually assaulted in her home. The
responding law enforcement officials and emergency medical technicians
arrived at the abode to find the nearly seventy-year-old woman recently
battered and cut, very frightened and with blood on her face. Geiger's
driver's license was found on the coffee table and his clothing was
discovered in the bathroom. Before being sent to the hospital, Annie J.
identified Geiger as her assailant.
Geiger was arrested and indicted for ACSC. At trial, Annie J.
detailed the evening's events, albeit at times she was somewhat difficult to
decipher, her speech slurred from an earlier stroke. She testified that
Geiger was an acquaintance of her son's and had been in her house on
several previous occasions. Although Geiger's appearance at her home
was uninvited on this particular evening, she had voluntarily allowed him
inside. Annie J. averred that, at his request, she provided Geiger with a
liquor drink. She did not imbibe. In recounting her attack, Annie J. said
after excusing himself to the bathroom, Geiger returned naked and
brandishing her pistol. Although at times in her testimony, Annie J.
seemed uncertain as to the exact location and chronology of the events,
she unequivocally described Geiger's behavior and acts against her. She
stated that Geiger demanded she give him money, slapped her in the
head repeatedly, put the gun to her head, put his penis in her mouth, and
attempted to force her legs apart to have sexual intercourse with her. She
asseverated she was able to prevent him from penetrating her and that,
after the physical attack ended, Geiger searched her home for money and
then left.
The emergency personnel responding to Annie J.'s telephone call
described the victim as being very frightened and upset and recounted
that her home was in a state of disarray. The sexual assault nurse who
treated her at the hospital opined that Annie J.'s injuries were consistent
with her description of the events. DNA tests conclusively indicated the
clothes found in the bathroom had been worn by Geiger.
3

State v. Geiger, 635 S.E.2d 669, 671 (S.C. Ct. App. 2006).
Petitioner’s rendition of the underlying facts differs. He contends that the victim
invited him into her home and gave him “some liquor to drink while they both shared
some Biblical talk.” (Pet’r’s Mem. Opp. Summ. J. Mot. at 1). He further states that he
went to the bathroom and, during the ten minutes he was in the bathroom, the victim
“became nervous, got her gun and proceeded to the bathroom to confront [him].” Id.
Prior to trial, Petitioner declared he wanted to pursue an alibi defense and, then during
and after trial, Petitioner has claimed he acted in self-defense.
In April 2004, Petitioner was indicted for assault with intent to commit first degree
criminal sexual conduct (“CSC”), kidnaping, and petit larceny. Petitioner was tried
before a jury October 10-14, 2006.
Geiger did not testify in his own defense. He called no witnesses,
but limited his defense to cross-examination of the prosecution's
witnesses.
At the close of the evidence, Geiger's attorney requested a charge
of ABHAN. The circuit court refused the inclusion of the lesser charge,
stating the record was devoid of evidence that Geiger committed ABHAN
rather than ACSC. The jury found Geiger guilty of ACSC.
Geiger, 671 S.E.2d 671. The trial judge granted Petitioner a directed a verdict on the
kidnaping charge, and the jury found Petitioner not guilty of the petit larceny charge.
Petitioner was sentenced to a life sentence without the possibility of parole.
Petitioner filed a direct appeal raising the following issue: “Whether the trial judge
erred in failing to charge the jury with the lesser included offense of assault and battery
of a high and aggravated nature?” On September 25, 2006, the Court of Appeals
affirmed Petitioner conviction and sentence. Geiger, 635 S.E.2d 669. Petitioner then
filed an application for post-conviction relief (“PCR”), raising the following two grounds
for relief: 1) Ineffective assistance of counsel; and 2) Violation of Due Process.
4

Petitioner later amended his application to raise the following rounds for relief:
1. Defense counsel was ineffective for advising the Applicant to not testify
on his own behalf at trial.
2. Defense counsel was ineffective for failing to inform the Applicant that
he would receive a mandatory sentence of life without parole if found
guilty.
3. Defense counsel was ineffective for failing to renew his objection to
impermissible hearsay testimony.
4. Defense counsel was ineffective for failing to call readily available
witnesses to impeach the credibility of the victim.
5. Trial counsel was ineffective for failing to explore a possible defense of
self defense on the facts of the Applicant’s case.
6. Defense counsel was ineffective for failing to advise the Applicant that if
he did not testify on his own behalf at trial that he likely would not be able
to receive a charge on self-defense or the lesser-included offense of
assault and battery of a high and aggravated nature.
7. Defense counsel was ineffective for failing to highlight to the jury the
fact that an oral rape protocol kit was never performed on the victim.
8. Trial counsel was ineffective for failing to point out inconsistencies
between the victim’s various accounts of the incident which lead to the
Applicant’s arrest as readily demonstrated with documents provided by the
State in the discovery process.
(App. at 605-06). Following an evidentiary hearing, the Honorable William P. Keesley
(“PCR court”), on September 5, 2008, denied Petitioner’s PCR. (App. at 701-711).
Petitioner then filed a Rule 59(e) Motion to Alter or Amend Judgment, which the PCR
court denied. (App. at 719-22).
Petitioner timely appealed the denial of his PCR application raising the following
issues:
1. Did the PCR Court err in denying relief despite trial counsel ineffectively
failing to advise Petitioner as to the pros and cons of offering testimony,
despite counsel’s ineffectively advising petitioner not to testify, and despite
trial counsel’s failing to explain to the petitioner that, without his testimony,
his attempts to argue self defense and ABHAN would be seriously
compromised?
5

2. Did the PCR Judge err in denying relief despite trial counsel’s
ineffectively failing to request a charge on the law of self-defense?
3. Did the PCR Judge err in denying relief despite trial counsel’s
ineffectively failing to use the Sexual Assault Report to impeach the
victim’s testimony?
4. Did the PCR Judge err in denying relief despite trial counsel’s
ineffectively failing to argue for a lesser included offense instruction on
ABHAN by pointing out that the instruction was supported by the victim’s
own testimony?
5. Did the PCR Judge err in denying relief despite trial counsel’s
negligently misstating the evidence during cross-examination where trial
counsel’s misstatement served to rehabilitate the victim’s credibility and
thereby prejudiced the defense?
6. Did the PCR judge err in denying relief despite trial counsel’s
ineffectively failing to investigate and his failure to present testimony
impeaching the victim’s credibility?
7. Did the PCR judge err in denying relief despite trial counsel’s providing
ineffective assistance of counsel in that he failed to object or to
persuasively cite authority to support his objection to the admission of the
hearsay testimony of hospital workers and police officers which exceeded
the limits of the exception to the rule against hearsay and which
improperly corroborated and bolstered the otherwise weak and
contradictory testimony of the victim?
8. Did the PCR Judge err in denying relief despite trial counsel’s
erroneously informing the trial judge that petitioner had received sufficient
notice of the State’s intent to seek life without parole and despite the trial
counsel’s failing to explain to petitioner that despite the State’s change in
the charges against him he was nevertheless still subject to a sentence of
life without the possibility of parole if he proceeded to trial?
9. Did the PCR judge err in denying relief despite appellate counsel’s
failure to petition for rehearing in order to correct the Court of Appeals’
misstatement of the evidence which was cited by the appellate court as
grounds for the denial of an ABHAN charge and as the basis for the
Court’s decision to affirm petitioner’s conviction?
(Return Attach. # 11 - Petition for Writ of Certiorari at 3). On August 18, 2011, the
South Carolina Supreme Court denied the Petition for Writ of Certiorari. Petitioner then
filed this habeas petition raising seven grounds for relief. (Pet.).
In his report, the Magistrate Judge recommends the dismissal of all seven
6

grounds. In a footnote, however, the Magistrate Judge noted that it appeared that the
PCR court did not address the issue of whether trial counsel was ineffective for failing to
discuss with Petitioner how his testimony might have benefitted his attempt to present
an ABHAN instruction to the jury. (Report at 18 n.12). The Magistrate Judge noted that
it also appeared that Petitioner did not raise this failure by the PCR court in his Rule
59(e) Motion. Id. The Magistrate Judge stated Respondent had not addressed this
failure by the PCR Court in its Return and Memorandum and that “[a]bsent a ruling by
the state court, there is nothing for this court to review.” Id. The Magistrate Judge then
recommended that Respondent be given time to file a subsequent Motion for Summary
Judgment to address this issue. Id.
In his objections, Petitioner specifically states he has no objections to the
Magistrate Judge’s recommendation regarding six of the grounds, and objects only to
the Magistrate Judge’s recommendation regarding his third ground of relief:
Ground Three: Did the lower court err in denying relief despite trial
counsel ineffectively failing to request a charge on the law of self-defense?
Supporting Facts: . . . Petitioner asserted that his defense would have
benefitted from his testimony coupled with the victim’s change of story
indicating that she had pulled the gun on him would have supported a
claim of self defense. . . .Petitioner agreed that the court of appeals had
held that, because he had failed to testify there was no evidence to
support his claim of self defense or of the lesser offense of ABHAN.
(Pet. at 14). Respondent did not file any objections.
The PCR Court’s held trial counsel had made a strategic decision not to pursue a
claim of self-defense and the Magistrate Judge found this determination was not
contrary to, nor an unreasonable application of, clearly established federal law and it
also did not result in a decision based upon an unreasonable determination of the facts.
(Report at 21).

Petitioner contends that at the PCR hearing, trial counsel merely

testified that it was a strategic decision only to advise Petitioner not to testify. He
7

contends trial counsel was ineffective for failing to request a self-defense jury instruction
based upon testimony other than from Petitioner. (Objections at 4). He argues that trial
counsel never testified that he made a strategic decision regarding whether to request a
self-defense jury instruction. (Objections at 4, 6). He cites to the following potions of
trial counsel’s testimony at the PCR hearing:
Q: Did you consider the possibility of pointing out this passage of
testimony to the judge as a basis for a request for a charge on selfdefense even without testimony from [Petitioner]?
A: I don’t know what the transcript says as afar as that. I don’t know
whether we can even request self-defense in this situation.
Q: Well, if self-defense was not requested, and to the best of my
recollection, it was not, my question is whether you considered [the
Victim’s] admission that she was the one that got the gun and interjected
the gun into the situation before any physical contact between the parties?
Did you consider asserting that testimony all by itself as a basis for a
request for a self-defense instruction?
A: Well, if I didn’t request self-defense, then I didn’t consider using that
testimony to support such a request.
(App. 680-681).
In South Carolina, a self-defense charge is not required unless it is supported by
the evidence. State v. Goodson, 440 S.E.2d 370 (S.C. 1994). To establish self-defense,
four elements must be present:
(1) the defendant must be without fault in bringing on the difficulty; (2) the
defendant must have been in actual imminent danger of losing his life or
sustaining serious bodily injury, or he must have actually believed he was
in imminent danger of losing his life or sustaining serious bodily injury; (3)
if his defense is based upon his belief of imminent danger, the defendant
must show that a reasonably prudent person of ordinary firmness and
courage would have entertained the belief that he was actually in
imminent danger and that the circumstances were such as would warrant
a person of ordinary prudence, firmness, and courage to strike the fatal
blow in order to save himself from serious bodily harm or the loss of his
life; and (4) the defendant had no other probable means of avoiding the
danger.
State v. Light, 664 S.E.2d 465, 469 (S.C. 2008).
8

As noted above, the trial court granted Petitioner a directed verdict on the
kidnaping charge and the only charges submitted to the jury were ACSC and petit
larceny. The trial court denied Petitioner’s request to give the jury a instruction on the
lesser included offense of ABHAN. And the South Carolina Court of Appeals affirmed
holding that the facts did not support a jury charge for the lesser included offense of
ABHAN. Clearly, Petitioner does not contend that he acted in self-defense in committing
an ACSC. He denies an ACSC occurred. His self-defense argument would apply only
to an ABHAN charge, a charge which based upon the evidence he was not entitled to
receive. The court cannot fault trial counsel for failing to consider a request for selfdefense when it was inapplicable to the charges submitted to the jury.
Moreover, the court notes that the evidence would not support a self-defense
charge. Even assuming a self-defense charge was somehow applicable and further
assuming that the Victim was armed when Petitioner came out of the bathroom, there
was no evidence that Petitioner was, or believed, he was in actual imminent danger of
losing his life or sustaining serious bodily injury or that Petitioner had no other probable
means of avoiding the danger.
The Court agrees with the Magistrate Judge's finding that Petitioner cannot
demonstrate that the PCR court unreasonably misapplied clearly established federal law
as decided by the Supreme Court in rejecting this claim or that the PCR court made
objectively unreasonable factual finding.
As to Ground Two, the Magistrate Judge recommends that the Respondent be
given twenty days to file a subsequent summary judgment motion to address whether
trial counsel was ineffective for failing to discuss with Petitioner how his testimony may
have benefitted his attempt to obtain an ABHAN jury instruction. (Report at 18 n.12).
Respondent has not filed any objection to this recommendation.
9

To obtain federal habeas relief under § 2254, all available state remedies must
first be exhausted. 28 U.S.C. § 2254(b). State remedies are deemed exhausted when
“they are no longer available, regardless of the reason for their unavailability.”
Woodford v. Ngo, 548 U.S. 81, 93 (2006)(citing Gray v. Netherland, 518 U.S. 152, 161
(1996)). Here, Petitioner has exhausted all of his state court remedies because no state
remedies are left available to him. Petitioner filed his one direct appeal to the South
Carolina Court of Appeals. Further, any future PCR application would be barred as
successive and would also be untimely. Thus, Petitioner's state court remedies are
technically exhausted.
Procedural default is a separate but related doctrine that may act to bar
Petitioner's claim under Ground Two. As the Magistrate Judge noted, the issue raised
in Ground Two was not addressed by the PCR Court in its Order of Dismissal, and
Petitioner did not raise this ground in his Rule 59 Motion. Therefore, this issue could
not have been raised on appeal to the South Carolina appellate court’s from the denial
of PCR. Marlar v. State, 653 S.E.2d 266 (S.C. 2007)(failure to file Rule 59 Motion to
have unaddressed issue addressed in the Order of Dismissal, results in waiver of issue
on appeal from PCR).
Of course, a procedural default may be excused by showing cause for
noncompliance with the state rule and actual prejudice resulting from the alleged
constitutional violation. Murray v. Carrier, 477 U.S. 478, 533 (1986). If a petitioner
cannot show cause and prejudice, a federal court will refuse to hear the claim. Id. at
496.

It is a petitioner's burden to raise cause and prejudice or making a showing of a

fundamental miscarriage of justice. Kornahrens v. Evatt, 66 F.3d 1350, 1363 (4th
Cir.1995). If such a showing is not made, the Court need not consider the defaulted
claim. Id. Further, in the alternative to showing cause and prejudice, a petitioner must
10

demonstrate a miscarriage of justice, e.g., actual innocence. Bousley v. United States,
523 U.S. 614, 622 (1998).
This particular issue has not been fully vetted at this time. Accordingly,
Respondent shall file a subsequent summary judgment motion addressing only this
issue.
Conclusion
After a thorough review of the Report and Recommendation and the record in
this case, the court adopts, as modified, the Magistrate Judge’s Report and
Recommendation (Dkt. # 38). It is therefore ORDERED that Respondent’s Summary
Judgement Motion is GRANTED. Respondent shall have twenty days to file a
subsequent motion for summary judgment addressing Ground Two.
It is further ordered that a certificate of appealability is denied because the
Petitioner has failed to make “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2).2
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
March 6, 2013

2

A certificate of appealability will not issue absent “a substantial showing of the
denial of a constitutional right.” 28 U .S.C. § 2253(c)(2). A prisoner satisfies this
standard by demonstrating that reasonable jurists would find both that his constitutional
claims are debatable and that any dispositive procedural rulings by the district court are
also debatable or wrong. See Miller–El v. Cockrell, 537 U.S. 322, 336 (2003); Rose v.
Lee, 252 F.3d 676, 683 (4th Cir. 2001).
11