Bolton v. State of South Carolina

Filing 30

ORDER adopting 26 Report and Recommendation; granting 19 Motion for Summary Judgment. Signed by the Honorable Richard M. Gergel on 1/13/2016. (hcic, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

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Thurston M. Bolton,
Petitioner,
vs.
Warden, McCormick Correctional
Institution,
Respondent.

No.: 4: 14-cv-4858-RMG

ORDER

This matter comes before the Court on the Report and Recommendation (R & R) of the
Magistrate Judge (Dkt. No. 26), recommending that Respondent's Motion for Summary
Judgment (Dkt. No. 19) be granted and the habeas petition be dismissed. For the reasons stated
below, the Court ADOPTS the R & R, GRANTS Respondent's Motion for Summary Judgment,
and DISMISSES the habeas petition.
I. Background

In June of 2008, a Charleston County Grand Jury indicted Petitioner for criminal sexual
conduct in the first degree (CSC) and kidnapping. After a two-day jury trial, Petitioner was
found guilty of the kidnapping charge and acquitted of the CSC charge. He received a twentyyear sentence for the kidnapping conviction.
Petitioner initially filed a notice of appeal, but his appellate counsel later filed an affidavit
by the Petitioner in which he indicated a desire to voluntarily withdraw his appeal. (Dkt. No. 18­
3). The South Carolina Court of Appeals dismissed the appeal on June 24, 2010 (Dkt. No. 18-4),
and it sent the remittitur to the Charleston County Clerk of Court on July 14,2010 (Dkt. No. 18­
5).

On August 9, 2010, Petitioner filed an application for post-conviction relief (PCR) raising
claims of ineffective assistance of trial counsel. An evidentiary hearing took place on September
14, 2011, and the PCR court dismissed Petitioner's application in its entirety on November 3,
2011.
Petitioner timely filed a notice of appeal (Dkt. No. 18-6), and filed a petition for writ of
certiorari in the South Carolina Supreme Court, raising the issue that "the PCR court erred in
finding Counsel's performance was not deficient where Counsel failed to object to the
prosecution's comment in closing argument that the Complaining Witness'[s] clothes were
ripped off ... where there was no evidence that the clothes were ripped." (Okt. No. 18-7 at 3).
Petitioner also raised three additional arguments in his pro se response to the Johnson petition:
(1) that the PCR court erred in finding that there was no ineffective assistance of counsel when
trial counsel failed to properly cross-examine the complaining witness about a prior inconsistent
statement that she and the Petitioner engaged in oral sex, (2) that the PCR court erred in finding
trial counsel's performance was not deficient in counsel's failure to provide a defense for
Petitioner's kidnapping indictment, and (3) the PCR Court erred in finding trial counsel's
performance was not deficient in employing an invalid trial strategy. (Dkt. No. 18-8). On May
22,2014, the South Carolina Supreme Court filed an order denying certiorari and granting PCR
counsel's petition to be relieved (Dk!. No. 18-9). The South Carolina Court of Appeals remitted
the matter on June 9, 2014. (Dk!. No. 18-10).
Petitioner filed this Petition for Writ of Habeas Corpus on December 30, 2014. (Dkt. No.
1). Petitioner raises four grounds for relief: the lower courts erred in finding that counsel's
performance was not deficient (1) where counsel failed to cross examine the complaining
witness about a prior inconsistent statement that she and the petitioner engaged in oral sex, (2)

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where counsel failed to provide a defense for petitioner's kidnapping indictment, (3) where
counsel failed to object to the prosecution's comment in closing argument that the complaining
witness's clothes were ripped off, and (4) where counsel failed to employ a valid trial strategy.
(Dkt. No.1-I).
The Magistrate Judge found that none of the Petitioner's grounds satisfied § 2254(d)'s
standards and that all of the grounds lacked merit. (Dkt. No. 26). Petitioner subsequently filed
objections (Dkt. No. 24).
II. Legal Standard
A. Report & Recommendation
The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court may "accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate." 28
U.S.C. § 636(b)(1).

This Court is charged with making a de novo determination of those

portions of the R & R or specified proposed findings or recommendations to which objection is
made. Diamondv. Colonial Life & Ace. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting 28
U.S.C. § 636(b)(1»; accord Fed. R. Civ. P. 72(b).
As to portions of the R & R to which no specific objection has been made, this Court
"must 'only satisfy itself that there is no clear error on the face of the record in order to accept
the recommendation.'" Id. (quoting Fed. R. Civ. P 72 advisory committee note). Moreover, in
the absence of specific objections to the R & R, the Court need not give any explanation for
adopting the Magistrate Judge's analysis and recommendation. See Camby v. Davis, 718 F.2d
198, 199-200 (4th Cir. 1983).
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B. Federal Habeas Review

Petitioner's claims are governed by 28 U.S.C. § 2254(d), which provides that his petition
cannot be granted unless the claims "(I) 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). "[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. 362,411 (2000). Importantly, "a determination of
a factual issue made by a State court shall be presumed to be correct," and Petitioner has "the
burden of rebutting the presumption of correctness by clear and convincing evidence." 28
U.S.C. § 2254(e)(I).
C. Habeas Review of Ineffective Assistance of Counsel

Where allegations of ineffective assistance of counsel are made, the question is ''whether
counsel's conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668,
686 (1984). First, the Petitioner must show that counsel made

err~rs

so serious that counsel's

performance was below the objective standard of reasonableness guaranteed by the Sixth
Amendment.

Id. at 687-88.

Second, the Petitioner must show that "there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different." Id. at 694.

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"The standards created by Strickland and § 22S4(d) are both highly deferential ... and
when the two apply in tandem, review is doubly so." Harrington v. Richter, 131 S. Ct. 770, 788
(2011). In applying § 22S4(d), "the question is not whether counsel's actions were reasonable.
The question is whether there is any reasonable argument that counsel satisfied Strickland's
deferential standard." Id.
III. Discussion
Petitioner's first ground for relief is that trial counsel failed to cross-examine the
complaining witness with impeachment evidence related to the witness engaging in oral sex with
the Petitioner.

(Dkt. No. 1-1 at 1). Petitioner did not raise any specific objections to the

Magistrate Judge's findings that the PCR court's rejection of the first grounds for reliefinvolved
neither an unreasonable application of clearly established federal law, nor a decision based on an
unreasonable determination of the facts in light of evidence presented. The Court finds that the
Magistrate Judge ably and thoroughly summarized the factual and legal issues and appropriately
found that Petitioner's first grounds for relief failed to meet the § 22S4(d) standards. Further, the
Court may not second guess an attorney's reasonable trial strategy and tactics. Goodson v.
United States, 564 F.2d 1071, 1072 (4th Cir. 1977) (per curiam). Accordingly, the Court adopts

the Magistrate Judge's finding on this issue as its own.
Petitioner's second ground for relief is that trial counsel failed to provide a defense for
petitioner's kidnapping indictment. (Dkt. No. 1-1 at 5). Again, Petitioner failed to raise any
specific objections to the Magistrate Judge's findings that the PCR court's rejection of this claim
was not contrary to and did not involve an unreasonable application of clearly established federal
law under § 22S4(d)(I). Because the Magistrate Judge ably and thoroughly summarized the
factual and legal issues and appropriately found that Petitioner's first grounds for relief failed to
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meet § 2254(d)(1)'s standards, the Court adopts the Magistrate Judge's findings on this issue as
its own.
Petitioner's third ground for relief is that the trial counsel failed to object to the
prosecution's closing argument that the complaining witness's clothes were ripped off. (Dkt.
No. 1-1 at 7). Petitioner generally objects that the Magistrate Judge's determination that his trial
attorney's performance failed to meet the Strickland standard. (See Dkt. No. 28 at 1-2). This
objection stems from a portion of the prosecution's closing statement in which it stated,
"[Petitioner] rips her bottoms off her, rips her underwear off, rips her top off, rips her bra off."
(Dkt. No. 18-2 at 29).

To support his argument, petitioner points the following exchange

between the prosecution and the complaining witness: "Q: And how do your clothes come off?
A: By force. He made me take them off." (Dkt. No. 18-1 at 80 (emphasis added». Although the
PCR did not address the complaining witness's response in its entirety, it found that closing
argument "merely re-state[d] what the victims testimony show[ed]." (Dkt. No. 18-2 at 237).
That is, the fact that Petitioner's trial counsel did not object constituted neither error nor
prejudice because the victim testified that her clothes were removed "by force."

And the

Magistrate Judge thoroughly summarized the reasons for finding that the PCR court's conclusion
was not an unreasonable application of clearly established federal 'law, nor was it based on an
unreasonable determination of the facts in light of the evidence. The Court now adopts the
Magistrate Judge's findings as his own.
Petitioner's fourth and final ground for relief is that trial counsel employed an invalid
trial strategy. (Dkt. No. 1-1 at 12). Petitioner provides no specific'objections to the Magistrate
Judge's determinations that (1) this ground fails to satisfy the § 2254 standards, and (2) the fact
that a presumption of correctness attaches to state court factual findings. (See Dkt. No. 28 at 14
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("The Petitioner reiterate [s] all of his previous assertions on this issue to establish his
position.")). Because the Court agrees with the cogent analysis by the Magistrate Judge, it need
not discuss those same issues for a second time here.
IV. Conclusion
The Court ADOPTS the R & R (Dkt. No. 26), GRANTS Respondent's Motion for
Summary Judgment (Dkt. No. 19), and DISMISSES the habeas petition.

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). A prisoner 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

AND IT IS SO ORDERED.

Richard Mark Gergel
United States District Court Judge
January 13. ,2016
Charleston, South Carolina

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