Jones v. McFadden

Filing 23

ORDER RULING ON REPORT AND RECOMMENDATION: The Court overrules Petitioner's objections and adopts the Report 16 and incorporates it herein. It is therefore ORDERED that Respondent's motion for summary judgment (ECF No. 11 ) is GRANTED, and Petitioner's § 2254 petition is DISMISSED with prejudice. A certificate of apealability is DENIED. Signed by Honorable Bruce Howe Hendricks on 06/23/2016. (dsto, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Donald Scott Jones,

Civil Action No.: 4:15-04004-BHH

Petitioner,
vs.
Opinion and Order
Joseph McFadden, Warden,
Respondent.

Petitioner, Donald Scott Jones, (“Petitioner”), proceeding pro se, filed this
application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) In
accordance with 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2)(d), D.S.C., the action
was referred to United States Magistrate Judge Thomas E. Rogers, III, for pretrial
handling and a Report and Recommendation (“Report”). Magistrate Judge Rogers
recommends that Respondent’s Motion for Summary Judgment be granted and
Petitioner’s § 2254 petition be dismissed. (ECF No. 16.) The Report sets forth in detail
the relevant facts and standards of law on this matter and the Court incorporates them
without recitation.
BACKGROUND

Petitioner filed this action against Respondent alleging, inter alia, ineffective
assistance of counsel. On April 25, 2016, the Magistrate Judge issued a Report; and
on May 17, 2016, Petitioner filed his Objections. (ECF No. 20.) Having carefully
reviewed the record, the Court finds that the Magistrate Judge has accurately and
adequately summarized the disputed and undisputed facts relevant to this action. The

Court has reviewed the objections, but finds them to be without merit. Therefore, it will
enter judgment accordingly.1
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the district court. The
recommendation has no presumptive weight. The responsibility to make a final
determination remains with the district court. Mathews v. Weber, 423 U.S. 261, 270–71
(1976). The court is charged with making a de novo determination of those portions of
the Report to which specific objection is made, and the court may accept, reject, or
modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit
the matter with instructions. 28 U.S.C. § 636(b)(1). The court need not conduct a de
novo review when a party makes only “general and conclusory objections that do not
direct the court to a specific error in the magistrate’s proposed findings and
recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the
absence of a timely filed, specific objection, the Magistrate Judge’s conclusions are
reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416
F.3d 310, 315 (4th Cir. 2005).
In reviewing these pleadings, the Court is mindful of Petitioner’s pro se status.
When dealing with a pro se litigant, the Court is charged with liberal construction of the
pleadings. See, e.g., De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). The
requirement of a liberal construction does not mean, however, that the Court can
1

As always, the Court says only what is necessary to address Petitioner’s objections against the already
meaningful backdrop of a thorough Report of the Magistrate Judge, incorporated entirely by specific
reference, herein, to the degree not inconsistent. Exhaustive recitation of law and fact exists there.

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ignore a petitioner’s clear failure to allege facts that set forth a cognizable claim, or that
the Court must assume the existence of a genuine issue of material fact where none
exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012).
DISCUSSION
The Magistrate Judge found that Ground Two (1), two claims in Ground Two (3),
and Ground Four are procedurally barred and the Court agrees. In his thorough thirtyfour page Report, the Magistrate Judge first found that Ground Two (1) was not raised
to or ruled upon by the PCR court. Ground Two (1) alleges ineffective assistance of
counsel due to counsel’s conflict of interest. The Magistrate Judge considered
Petitioner’s argument that Martinez v. Ryan, 132 S. Ct. 1309 (2012), created an
exception here because Petitioner’s PCR counsel failed to amend the PCR application
to include this claim. In Martinez, the Supreme Court held that when a state requires its
defendants to raise ineffective assistance of trial counsel claims in initial-review
collateral proceedings, a procedural default will not bar a federal habeas court from
hearing a substantial claim of ineffective assistance at trial if, in the initial-review
collateral proceeding, there was no counsel or counsel was ineffective under Strickland
v. Washington, 466 U.S. 886 (1984). 132 S.Ct. at 1320. To overcome the procedural
bar under Martinez however, the petitioner “must also demonstrate that the underlying
ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the
prisoner must demonstrate that the claim has some merit.” Id. at 1318. (internal
citations omitted).

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Here, the Magistrate Judge found that “Petitioner has not shown that his PCR
counsel was ineffective under Strickland or that the underlying ineffective assistance of
counsel claim is substantially meritorious to overcome the default.” (ECF No. 16 at 16.)
He noted that the conflicts alleged by Petitioner were merely an “attenuated set of
relationships”; specifically, that trial counsel and a family court judge who knew the
victim in this case were personal friends. (Id. at 17.) According to Petitioner, this
conflict led trial counsel to present a “half-hearted defense.” (ECF No. 10-11 at 30.)
The Magistrate Judge correctly concluded that Petitioner’s allegations did not establish
a conflict of interest and, therefore, Petitioner did not have a meritorious underlying
ineffective assistance of counsel claim. See Cuyler v. Sullivan, 446 U.S. 335, 348
(1980) (“In order to establish a violation of the Sixth Amendment, a defendant who
raised no objection at trial must demonstrate that an actual conflict of interest adversely
affected his lawyer’s performance.”); Thomas v. State, 551 S.E.2d 254, 256 (S.C.
2001) (“An actual conflict of interest occurs where an attorney owes a duty to a party
whose interests are adverse to the defendant’s.”).
In his objections, Petitioner briefly argues that his PCR counsel was ineffective,
but he does not address the alleged ineffectiveness of his trial counsel. (ECF No. 20 at
5–6.) Because the Court agrees with the Magistrate Judge that Petitioner’s allegations
do not establish a substantially meritorious underlying ineffective assistance of counsel
claim, the Martinez exception does not apply. Ground Two (1) is therefore procedurally
barred and this objection is overruled.

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The Magistrate Judge also found that two claims in Ground Two (3) were not
raised to or ruled upon by the PCR court. These claims allege that trial counsel was
ineffective for failing to call Dr. Karns and Detective Ramsey to testify. Petitioner
argued that the Martinez exception applied because the PCR counsel failed to
subpoena the witnesses to testify at the PCR hearing. The Magistrate Judge correctly
found the Martinez exception did not apply here because Petitioner did not establish
that trial counsel’s representation fell below an objective standard of reasonableness.
Specifically, Petitioner “failed to present Dr. Karns and/or Detective Ramsey as a
witness at the evidentiary hearing and has failed to submit any evidence of what the
proposed witness’s testimony would be or evidence that would show a probability that
the testimony would have changed the outcome.” (ECF No. 16 at 18–19); see White v.
Cartledge, No. CV 1:15-365-DCN-SVH, 2016 WL 1104760, at *14 (D.S.C. Jan. 29,
2016), report and recommendation adopted, 2016 WL 1089339 (D.S.C. Mar. 21, 2016)
(finding the Martinez exception did not apply to petitioner’s claim that his PCR counsel
failed to subpoena a witness where the witness “did not testify at the evidentiary
hearing[,]” making “any discussion regarding what [he] would have testified about at
trial [] purely speculative”) (citing Bannister v. State, 509 S.E.2d 807, 809 (S.C. 1998)
(the South Carolina Supreme Court “has repeatedly held a PCR applicant must
produce the testimony of a favorable witness or otherwise offer the testimony in
accordance with the rules of evidence at the PCR hearing in order to establish
prejudice from the witness’s failure to testify at trial.”); see also Underwood v. State,

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425 S.E.2d 20, 22 (S.C. 1992) (prejudice from trial counsel’s failure to interview or call
witnesses could not be shown where witnesses did not testify at PCR hearing).2
In his objection, Petitioner speculates as to what Dr. Karns and Detective
Ramsey would have testified to at trial and how their testimony would have affected a
jury. (ECF No. 20 at 10–11.) As previously stated, such speculation is insufficient to
establish prejudice from a witness’s failure to testify at trial. See Bannister, 509 S.E.2d
at 809. Accordingly, this objection is overruled.
The Magistrate Judge next found that Ground Four was not raised to or ruled
upon by the PCR court and was therefore procedurally defaulted. Ground Four alleges
that the prosecution engaged in misconduct because Petitioner’s prosecution for life
without parole was vindictively enhanced, the prosecution allowed for false testimony to
be presented by its expert witness, and it neglected to correct inconsistent testimony
from the victim. The Magistrate Judge correctly concluded that Petitioner did not
demonstrate cause to excuse his procedural default, or actual prejudice or a
fundamental miscarriage of justice resulting from the procedural default.
In his objections, Petitioner recognizes that he “cannot establish cause to
excuse his procedural default[,]” and instead asserts that he has presented “sufficient
evidence of actual innocence in accordance with Schulp v. Delo, 513 U.S. 298 (1995).”
(ECF No. 20 at 27.) In Schlup, the Supreme Court held that a claim of actual innocence
“requires [a movant] to support his allegations of constitutional error with new reliable
evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness
2

Accordingly, even if these claims were not procedurally barred, they would fail on the merits as Petitioner
cannot carry his burden of establishing counsel was ineffective as required by Strickland and its progeny.

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accounts, or critical physical evidence—that was not presented at trial.” 513 U.S. at
324. A petitioner must establish that, “in the light of all the evidence, . . . it is more likely
than not that no reasonable juror would have convicted him.” Id. at 327–28. To pass
through the actual-innocence gateway, a petitioner’s case must be “truly extraordinary.”
Id. at 324. Indeed, the Supreme Court has emphasized that the exception is limited to
“certain exceptional cases involving a compelling claim of actual innocence.” House v.
Bell, 547 U.S. 518, 521 (2006); see also Schlup, 513 U.S. at 324 (noting that
“experience has taught us that a substantial claim that constitutional error has caused
the conviction of an innocent person is extremely rare”).  
Here, Petitioner asserts that Dr. Karn’s “initial medical examination records”
constitute new evidence, and that, “had the cross-examination [of the state’s expert
witness] been complete by the answering of crucial, impeaching questions about [Dr.
Karn’s] records, . . . the result of the trial would more than likely [have] been different.”
(ECF No. 20 at 27.) Dr. Karn, an emergency room doctor, treated the victim for stab
wounds on May 29, 2009, immediately after the altercation at issue occurred. (ECF No.
20-1 at 2.) His records cover the period from roughly 2:00 am to 5:30 am. (Id. at 2–5.)
Petitioner asserts that Dr. Karn’s initial medical examination records are
inconsistent with the testimony of the state’s expert witness as to the victim’s injuries
from rape. Specifically, Petitioner highlights Dr. Karn’s notation that there is “no
bruising/redness to anal or vaginal area at this time.” (ECF No. 20-1 at 3.) Although
Petitioner claims that the records reveal “not one sign of bleeding, tearing, or bruising
to any part of [the victim’s] body,” (ECF No. 20 at 24), Dr. Karn notes, among other
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things, that there is “dried blood to lower extremities,” and that in photos taken for
police, the alleged victim has a “neck/bruise to [left] thigh/minute abrasion to [left] hip.”
(ECF No. 20-1 at 4.) In the same records, Nurse Barbara Rolen RN (“Nurse Rolen”)
notes that at 5:31 am, the alleged victim “continued to have dried blood to lower
extremities/periarea.3” (Id. at 5.)
Petitioner contrasts these medical records with those taken by the state’s expert
witness, Nurse Mobley, as part of the “Sexual Assault Examination Protocol” for the
South Carolina Law Enforcement Division. Nurse Mobley recorded these medical notes
when the victim was admitted to her after leaving Dr. Karn’s care, at 5:48 am on May
29, 2009. (ECF No. 20-1 at 8.) Nurse Mobley notes, inter alia, that a pelvic examination
revealed “bloody drainage” from the alleged victim’s vulva, vagina, and anus. (Id. at 9.)
Like Dr. Karns, however, she notes that there are “no tears.” (Id. at 11.)
According to Petitioner, “this new evidence . . . was not presented at trial due to
the suppression of the impeaching evidence by the prosecution, and the deficient
performance of trial counsel.” (ECF No. 20 at 28.) He argues that after hearing this new
evidence, “[a]ny reasonable juror would have doubt as to the testimony presented by
[the state expert witness].” (Id.)
Here, the Court finds that Petitioner’s evidence fails to satisfy the Schlup
standard, as his allegations are insufficient to meet the requisite showing that it is more
likely than not that no reasonable juror would have convicted him in light of the new
evidence. Petitioner has overstated the significance of Dr. Karn’s medical
3

The perineal area is “the area between the anus and the posterior part of the external genitalia.”
http://www.merriam-webster.com/dictionary/perineal.

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records—they are largely consistent with the medical notes taken by Nurse Mobley and
Nurse Rolen during the same time period. For example, both Dr. Karn and Nurse
Mobley note that the victim does not have any tears. While Dr. Karn notes that the
victim has “no bruising/redness to anal or vaginal area at this time,” (ECF No. 20-1 at
3), he also notes that there is “dried blood to lower extremities.” (Id. at 3.) Nurse Rolen
also noted that the victim “continued to have dried blood in the lower
extermities/perineal area.” (Id. at 5.) These records are consistent with the testimony at
trial that the victim was stabbed and raped by Petitioner. In light of all the evidence, the
Court cannot find that it is more likely than not that no reasonable juror would have
convicted Petitioner in light of the new evidence. Petitioner’s “exculpatory” evidence is
not “so strong that a court [could not] have confidence in the outcome of the trial . . . .”
Schlup, 513 U.S. at 316. Because the Court finds that Petitioner has failed to meet his
burden of demonstrating actual innocence, procedural bars apply to his claims in
Ground Four. This objection is therefore overruled.
The Magistrate Judge next found that Ground One fails to state a cognizable
§ 2254 claim. Ground One alleges that the trial judge erred in not allowing witnesses’
testimony into evidence and to be heard by the jury. The Magistrate Judge correctly
found that this claim concerned the sufficiency of the evidence at Petitioner’s trial, and
therefore was not a basis for habeas relief. (ECF No. 16 at 20.) Indeed, the Fourth
Circuit has held that state evidentiary rulings will not be considered in federal habeas
“unless [the] erroneous evidentiary rulings were so extreme as to result in a denial of a
constitutionally fair proceeding.’” Burket v. Angelone, 208 F.3d 172, 186 (4th Cir.
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2000). In his objection, Petitioner cites a South Carolina case from 1860, State v.
Smith, which states that a defendant in a murder trial may “show in his defense that the
deceased was a turbulent and violent man.” 46 S.C.L. 430 (12 Rich.) 430 (1860).
Petitioner’s reliance on Smith supports the Court’s finding that Ground One deals solely
with matters of state law and is therefore not cognizable here. See Grundler v. North
Carolina, 283 F.2d 798, 802 (4th Cir. 1960) (“Normally, the admissibility of evidence,
the sufficiency of evidence, and instructions to the jury in state trials are matters of
state law and procedure not involving federal constitutional issues.”). This objection is
therefore overruled.
The Magistrate Judge next found that those remaining claims in Ground Two not
procedurally barred failed on the merits. He first addressed Petitioner’s claim that trial
counsel failed to investigate the mental and medical records of the victim to show
anger issues and false testimony. (ECF No. 16 at 23–25.) The Magistrate Judge
thoroughly discussed the PCR court’s treatment of this claim and deferred to its finding
that Petitioner’s counsel was credible on this issue and Petitioner was not credible. (Id.)
He further noted that counsel proferred the testimony of two family members regarding
the victim’s anger issues, but the testimony was not allowed in by the trial judge. The
Court agrees that the ruling of the state court was reasonable on this issue and that
Petitioner failed to carry his burden of establishing counsel was ineffective as required
by Strickland and its progeny. The Court therefore overrules this objection.
The Magistrate Judge next addressed Petitioner’s claim that trial counsel was
ineffective for failing to call Susan Clary (“Clary”) as a defense witness. He recounted
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Clary’s testimony at the PCR evidentiary hearing and noted the PCR court’s finding
that “it is doubtful that [Clary’s] testimony would have been admissible at trial” given
that the trial court did not allow counsel to introduce similar testimony. (ECF No. 16 at
26.) The Magistrate Judge also noted the PCR court’s finding that Petitioner failed to
prove any prejudice due to counsel’s performance. (Id. at 27.) He correctly concluded
that the ruling of the state court was reasonable on this issue and that Petitioner failed
to carry his burden of establishing counsel was ineffective as required by Strickland
and its progeny. (Id.) In his objections, Petitioner argue that “[h]ad the jury heard
Clary’s testimony, no reasonable juror would have convicted the Petitioner with the
charges at hand.” (ECF No. 20 at 12.) However, such speculation fails to establish
prejudice under Strickland. See Jackson v. S. Carolina, No. CIV.A. 0:06-1837, 2007
WL 2822138, at *9 (D.S.C. Sept. 25, 2007) (“Petitioner’s mere speculation is not
sufficient to satisfy his burden” under Strickland) (citing Bradford v. Whitley, 953 F.2d
1008, 1012 (5th Cir. 1989) (Speculation and conjecture does not satisfy the prejudice
prong of Strickland)). The Court therefore overrules this objection.
The Magistrate Judge next found that Petitioner’s claim in Ground Two (4) that
trial counsel was ineffective for failing to object to a motion to qualify a nurse as an
expert was the same issue raised in Ground Three. He therefore addressed this claim
under only under Ground Three. Petitioner objects here that the claims differ under
these grounds because “Ground Three is a claim that holds the PCR court
accountable” while Ground Two (4) “is a claim holding trial counsel accountable.” (ECF
No. 20 at 12.) Petitioner explains that Ground Three asserts that the “PCR court erred
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in refusing to find trial counsel ineffective in failing to object to a nurse being qualified
as [an] expert.” (Id. at 18.) The Magistrate Judge, however, treated both claims as
asserting ineffective assistance of counsel. This is likely because “claims of error
occurring in a state post-conviction proceeding cannot serve as a basis for federal
habeas corpus relief.” Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988); see Gray
v. Stevenson, No. 4:11–cv–227–CMC–TER, 2012 WL 489010, at *17 (D.S.C. Jan. 24,
2012) (holding that grounds for relief “pertain[ing] to errors in the PCR actions . . .
should be dismissed”) adopted by 2012 WL 488906 (D.S.C. Feb.15, 2012). The Court
finds that to the extent Petitioner attempts to assert error by the PCR court , such a
claim is not cognizable on federal habeas review. The Court therefore overrules any
objection by Petitioner as to this claim under Ground Three.
As for the ineffective assistance of counsel claim asserted in Ground Two (4),
the Magistrate Judge thoroughly addressed this claim in his analysis of Ground Three.
He discussed the PCR Court’s finding that “trial counsel was not deficient in his
questioning of the nurse and that he ‘calculated his motions and tactics in an effort to
effectuate the goal of competent and effective advocacy on his client’s behalf.’” (ECF
No. 16 at 32.) This finding was supported by the record. As noted by the Magistrate
Judge, counsel testified at the PCR hearing that Nurse Mobley had over twenty years
of experience along with hours of training in ride alongs and numerous pelvic exams.
(ECF No. 10-2 at 209.) Counsel also testified that his strategy was to attack the nurse
about inconsistencies in her report and the victim’s story. (Id. at 210.) Upon review, the
Magistrate Judge correctly found that the PCR court’s findings “were not contrary to,
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nor did they involve an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” (ECF No. 16 at 32–33.)
Petitioner’s objection here is somewhat confusing as it focuses more on
counsel’s failure to further cross examine Nurse Mobley before she was excused as a
witness, rather than any failure to object to her initial admission as an expert witness.
(ECF No. 20 at 15.) However, the PCR court expressly addressed this issue and found
that “Counsel’s manner in questioning the expert witness . . . was not deficient.” (ECF
No. 10-2 at 231.) In addition,  “[f]ederal law provides that cross-examination of
witnesses is a tactical decision of counsel, afforded great deference by reviewing
courts.” Roddy v. Reynolds, No. CA 1:12-953-CMC-SVH, 2013 WL 625096, at *16
(D.S.C. Jan. 18, 2013), report and recommendation adopted, 2013 WL 625342 (D.S.C.
Feb. 20, 2013). Based on the foregoing, this Court cannot find that the PCR court’s
determination was in any way unreasonable or contrary to existing precedent.
Accordingly, the Court overrules this objection.
Finally, the Magistrate Judge addressed Grounds Five and Six, which assert
errors by both the PCR attorney and the PCR judge. In Ground Five, Petitioner claims
he received ineffective assistance of counsel when counsel did not amend his PCR
application to add additional allegations and failed to subpoena witnesses to the
hearing. In Ground Six, Petitioner claims that the PCR court erred in ordering
authentication of a written deposition and not allowing material witness testimony into
evidence. The Magistrate Judge correctly found that both grounds are not cognizable
because they concern the state PCR process and do not raise claims concerning
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federal habeas corpus relief. (ECF No. 16 at 33); see 28 U.S.C.A. § 2254(i) (“The
ineffectiveness or incompetence of counsel during Federal or State collateral postconviction proceedings shall not be a ground for relief in a proceeding arising under
section 2254.”); Bryant v. Maryland, 848 F.2d 492, 493 (4th Cir. 1988) ( “claims of error
occurring in a state post-conviction proceeding cannot serve as a basis for federal
habeas corpus relief”). Petitioner’s reliance on Strickland and Martinez in his objections
are unavailing here, where the claims asserted are not cognizable § 2254 claims. (ECF
No. 20 at 29.) Accordingly, the Court overrules these objections.
CONCLUSION
After a thorough de novo review of the Report, the record, and the applicable
law, the Court finds that Petitioner’s objections are without merit. Accordingly, for the
reasons stated above and by the Magistrate Judge, the Court overrules Petitioner’s
objections and adopts the Report and incorporates it herein. It is therefore ORDERED
that Respondent’s motion for summary judgment (ECF No. 11) is GRANTED, and
Petitioner’s § 2254 petition is DISMISSED with prejudice.
CERTIFICATE OF APPEALABILITY
The governing law provides that:
(c) (2) A certificate of appealability may issue . . .only if the applicant has made
a substantial showing of the denial of a constitutional right.
(c) (3) The certificate of appealability. . . shall indicate which specific issue or
issues satisfy the showing required in paragraph (2).

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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. 2011).
In this case, the legal standard for the issuance of a certificate of appealability has not
been met. Therefore, a certificate of deniability is DENIED.
IT IS SO ORDERED.

/s/ Bruce Howe Hendricks
United States District Judge
June 23, 2016
Greenville, South Carolina
*****

NOTICE OF RIGHT TO APPEAL
The parties are hereby notified that any right to appeal this Order is governed by
Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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