Kinard v. Battles

Filing 55

ORDER RULING ON REPORT AND RECOMMENDATION: The Court adopts the Report and Recommendation (ECF No. 40 ) and incorporates it herein. It is therefore ORDERED that Respondent's motion for summary judgment (ECF No. 25 ) is GRANTED and Petitioner's § 2254 petition is DISMISSED with prejudice. A certificate of appealability is DENIED. Signed by Honorable Bruce Howe Hendricks on 3/16/2016. (mcot, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Timothy T. Kinard, #304285,

Civil Action No.: 5:14-4391-BHH

Petitioner,
vs.
Opinion and Order
Joseph Battle, Administrator, Abbeville
County Detention Center,
Respondent.

Petitioner, Timothy T. Kinard, (“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 Kaymani D. West, for pretrial handling
and a Report and Recommendation (“Report”). Magistrate Judge West recommends
that Respondent’s Motion for Summary Judgment be granted and Petitioner’s § 2254
petition be dismissed. (ECF No. 40.) 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 ineffective assistance of
counsel. On January 28, 2016, the Magistrate Judge issued a Report; and on March 8,
2016, Petitioner filed his Objections. (ECF No. 50.) 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

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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 the 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 ignore
a petitioner’s clear failure to allege facts that set forth a cognizable claim, or that the

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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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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
Affording Petitioner the requisite liberal construction of his filings, the Court found
that certain portions of Petitioner’s objections invoked de novo review, which the Court
has conducted accordingly. The Magistrate Judge first found that Ground One failed on
the merits and the Court agrees. Ground One alleges that trial counsel was ineffective
for failing to object to erroneous jury instructions. (ECF No. 1 at 5.) This Ground also
alleges that the South Carolina Court of Appeals erred in holding that the trial court
“properly charged the jury regarding malice aforethought [and was] without error.” (ECF
No. 1-1 at 5.) In her exceptionally thorough thirty-eight page Report, the Magistrate
Judge engaged in a thoughtful and comprehensive analysis of this claim. She correctly
found that the ruling of the state court was reasonable and that Petitioner failed to carry
his burden of establishing counsel was ineffective as required by Strickland v.
Washington, 466 U.S. 886 (1984), and its progeny. (ECF No. 40 at 20–26.) She further
found that Petitioner’s allegation concerning the trial court’s application of criminal law
did not warrant habeas relief. As she correctly stated, “[i]t is not the province of this
court to re-examine state law determinations on state-law questions.” (Id. at 21); See
Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal
habeas court to reexamine state-court determinations on state-law questions.”); see
also Chance v. Garrison, 537 F.2d 1212, 1215 (4th Cir. 1976) (“Normally, instructions to
the jury in state trials are purely matters of state law and procedure and it is only in

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circumstances where the instructions impugn fundamental fairness or infringe upon
specific constitutional protections that a federal question is presented.”).
Petitioner objects here that “the state collateral court unreasonably applied
Strickland” and indicates that the Magistrate Judge’s analysis of Strickland was flawed
as well.2 (ECF No. 50 at 5–18.) He argues that the PCR court and the Magistrate Judge
erred by failing to apply State v. Belcher, 685 S.E.2d 802 (S.C. 2009), retroactively,
citing Teague v. Lane, 489 U.S. 288 (1989) in support. (Id. at 7.) The Magistrate Judge
addressed Petitioner’s Belcher argument extensively, recognizing that Belcher did
indeed hold that “the ‘use of a deadly weapon’ implied malice instruction has no place in
a murder (or assault and battery with intent to kill) prosecution where evidence is
presented that would reduce, mitigate, excuse or justify the killing (or the alleged assault
and battery with intent to kill).” 685 S.E.2d at 809. In Teague, the United States
Supreme Court articulated a framework to determine whether a ruling by the Supreme
Court regarding a criminal procedure has retroactive application. 489 U.S. at 301–310.
The Belcher court plainly stated that its holding would not apply to convictions
challenged on post-conviction relief and cited Teague. Belcher, 685 S.E.2d at 810.
Thus, Petitioner’s reliance on Teague to argue that Belcher should apply retroactively is
without merit.
Further, the Magistrate Judge explained the PCR court’s ruling in detail and
correctly found that “Petitioner’s trial counsel had no basis on which to object to the trial
court’s jury instruction on inferred malice because the instruction given was current and

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  Petitioner also objects here that the state court “violated [his] due process” because it impermissibly
shifted the burden of proof to the defendant. However, as explained above and by the Magistrate Judge,
such a claim is not properly before this Court. See Estelle, 502 U.S. at 67–68; Chance, 537 F.2d at 1215.

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valid based on South Carolina precedent at that time.” (ECF No. 40 at 25.) Petitioner
does not offer any compelling argument as to how the Magistrate Judge’s Strickland
analysis was improper. This objection is therefore overruled.
The Magistrate Judge next found that Ground Two failed on the merits and the
Court agrees. Ground Two alleges that “the state collateral court unreasonably applied
Strickland v. Washington, where trial counsel performance at trial was deficient, in
cumulative effect.” (ECF No. 1 at 6.) To resolve this claim, the Magistrate Judge
referenced her discussion of each of Petitioner’s grounds for relief and correctly found
that none of the alleged instances of ineffective assistance of counsel “amounted to
error.” (ECF No. 40 at 27.) She further found that “in nearly all instances, trial counsel
had valid strategic reasons for his actions taken during Petitioner’s trial.” (Id.) She
therefore properly concluded that “Petitioner cannot aggregate the alleged errors to
form a constitutional violation.” (Id. (citing Fisher v. Angelone, 163 F.3d 835, 852–853
(1998), cert. denied, 526 U.S. 1035 (1999) (holding that various claims of ineffective
assistance of counsel, like claims of trial error, would not entitle petitioner to relief
because a cumulative error analysis would apply only to the effect of those matters
actually determined to be constitutional error and not the cumulative effect of all matters
alleged or deemed deficient)).)
Here, Petitioner objects that the Magistrate Judge erred in dismissing this claim.
Citing Freeman v. State, 459 S.E.2d 867 (S.C. 1995), he argues that the cumulative
effect of trial counsel’s error warrants a new trial de novo. (ECF No. 50 at 45.) Petitioner
misunderstands both the holding in Freeman and the Court’s task at this stage of
habeas review. In Freeman, the Supreme Court of South Carolina considered on direct

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appeal whether the aggregation of the trial judge’s alleged errors produced a cumulative
effect of prejudice sufficient to warrant a new trial. 459 S.E.2d at 875. Freeman in no
way affects the Magistrate Judge’s analysis—Petitioner has already directly appealed
his jury conviction and sentence. Here, the Magistrate Judge and this Court are tasked
with reviewing whether the PCR court reasonably applied Strickland to Petitioner’s
case. Petitioner does not offer any compelling argument as to how the Magistrate Judge
erred in this respect. This objection is therefore overruled.
The Magistrate Judge next found that Ground Three failed on the merits and the
Court agrees. Ground Three alleges that trial counsel was ineffective for failing to call
Johnny Toole (“Mr. Toole”) as a corroborating witness and for calling a witness,
Reginald Davis (“Mr. Davis”), who had prior convictions. (ECF No. 1 at 8.) The
Magistrate Judge correctly found that the rulings of the state court were reasonable and
that Petitioner failed to carry his burden of establishing counsel was ineffective as
required by Strickland and its progeny. (ECF No. 40 at 27–33.) Petitioner argues that
the Magistrate Judge did not conduct a proper Strickland analysis because she did not
consider the “totality of the circumstances.” (ECF No. 50 at 28–29.) He cites Elmore v.
Ozmint, 661 F.3d 783 (4th Cir. 2011), in support. (Id.) In Elmore, the Fourth Circuit
Court of Appeals discussed the “totality-of-the-evidence standard” under Strickland,
explaining that a PCR court must “‘consider the totality of the evidence before the . . .
jury’ [to determine] whether there [is] a reasonable probability that, but for counsel’s
errors, a different verdict would have been returned.” 661 F.3d at 868–70 (quoting
Strickland, 466 U.S. at 695). The Elmore court employed this standard to assess “the
prejudicial effect of a failure to investigate mitigation evidence for sentencing.” Id. at

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868. It concluded that the state PCR court’s adjudication of the petitioner’s ineffective
assistance claim “was so lacking in justification that there was . . . error well understood
and comprehended in existing law beyond any possibility for fairminded disagreement.”
Id. at 856. Here, Petitioner argues that the trial counsel’s alleged errors in respect to
both witnesses damaged his credibility, and that the Magistrate Judge failed to address
this “credibility factor” when considering the evidence under Strickland. (ECF No. 50 at
28–29.)
Contrary to Petitioner’s assertions, both the PCR court and the Magistrate Judge
considered all of the evidence available at trial and at the PCR hearing to assess
Petitioner’s claims under Strickland. The PCR court expressly considered the impact of
these witnesses on Petitioner’s credibility. In reference to trial counsel’s failure to call
Mr. Toole as a witness, the PCR court stated in part:
This Court finds Counsel’s testimony that he attempted to find Mr. Toole to
be credible, while also finding Counsel’s testimony that calling Mr. Toole to
the stand would have been a risk because at most he could corroborate
only a part of the Applicant’s story and at worst could damage the
Applicant’s credibility by telling a different story to be a matter of trial
strategy.
(ECF No. 24-1 at 16.) As for trial counsel’s decision to offer Mr. Davis as a witness, the
PCR stated in part:
This Court first finds Counsel’s testimony that the Applicant wanted
Counsel to call his brother to testify to be credible, while simultaneously
finding the Applicant’s testimony on this issue not to be credible. Next, this
Court finds Counsel’s testimony that it was a strategic decision to call Mr.
Davis to the stand because he was the only person who could corroborate
the Applicant’s entire version of events to be credible.
(Id. at 13.)

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The Magistrate Judge further summarized the evidence relevant to these issues
and correctly found that the PCR court’s legal analysis under Strickland was not
objectively unreasonable. Specifically, the Magistrate Judge noted that Mr. Toole would
have presented cumulative testimony and that he could not testify as to what occurred
once Petitioner entered the victim’s home. (Id. at 29–30.) From this, she concluded that
“trial counsel did not err in failing to call Mr. Toole as a witness during Petitioner’s
criminal trial.” (Id. at 30.) She further found any alleged error in this respect to be
harmless because “there is not a reasonable probability that, but for counsel’s alleged
error, the result of Petitioner’s criminal trial would have been different.” (Id.) She then
concluded that the PCR court’s legal analysis under Strickland was not objectively
unreasonable. (Id.)
As for trial counsel’s use of Mr. Davis as a witness, the Magistrate Judge noted
that “it was part of [trial counsel’s] trial strategy to call Mr. Davis to corroborate
Petitioner’s story and negate the intent to commit the crime.” (Id. at 32.) The Magistrate
Judge then stated, “Where counsel articulates valid reasons for employing a certain
strategy, counsel’s choice of tactics will not be deemed ineffective assistance.” (Id. at
32–33 (citing Hamilton v. Warden, Lieber Corr. Inst., No. 5:13-2506, 2015 WL 251243,
at *17 (D.S.C. Jan. 20, 2015) (noting that where trial strategy is concerned in an
ineffective-assistance-of-counsel claim, the United States Supreme Court has stated,
“[b]ecause of the difficulties inherent in making the evaluation, 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,

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under the circumstances, the challenged action ‘might be considered sound trial
strategy.’”); Whitehead v. State, 417 S.E.2d 530 (S.C. 1992)).)
The Court finds no error in the Magistrate Judge’s analysis of this claim and
overrules Petitioner’s objection.
The Magistrate Judge next found that Ground Four failed on the merits and the
Court agrees. Ground Four alleges that trial counsel “failed to object to solicitor’s
improper comment,” specifically, “the solicitor’s statement of personal opinion
concerning Petitioner’s guilt and the solicitor’s improper vouching for the credibility of
the state’s witnesses.” (ECF Nos. 1 at 10; 1-2 at 11.) The Magistrate Judge summarized
the PCR court’s findings on this claim. She noted that under Donnelly v. DeChristoforo,
416 U.S. 637, 643 (1974), “the relevant question is whether the prosecutor’s comments
so infected the trial with unfairness as to make the resulting conviction a denial of due
process” and cited a Fourth Circuit case, United States v. Harrison, 716 F.2d 1050 (4th
Cir. 1983) for the factors3 a district court should consider to determine whether a
prosecutor’s comments were so damaging as to require reversal. (ECF No. 40 at 33–
34.) She correctly found that “Petitioner failed to meet his burden of proving trial counsel
should have objected or moved for a mistrial during the Solicitor’s closing argument,”
and that the PCR court’s findings on this claim were reasonable. (Id. at 34–35.)
Here, Petitioner objects that the Magistrate Judge erred in her analysis of this
claim under the Harrison factors. (ECF No. 50 at 29–36.) The Magistrate Judge did not
expressly articulate her analysis under each Harrison factor; rather, she reviewed the

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The four factors are: “(1) the degree to which the prosecutor's remarks have a tendency to mislead the
jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the
remarks, the strength of competent proof introduced to establish the guilt of the accused; and (4) whether
the comments were deliberately placed before the jury to divert attention to extraneous matters.”
Harrison, 716 F.2d at 1052.

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relevant evidence, including the Solicitor’s closing argument, and found that it was
reasonable for the PCR court to find that trial counsel did not render ineffective
assistance in failing to object to the Solicitor’s statements. (ECF No. 40 at 33–35.)
Petitioner’s independent analysis under the Harrison factors fails to present a genuine
issue of material fact as to this claim—he does not establish that the Solicitor’s
comments were sufficiently damaging under any of the factors. This objection is
therefore overruled.
Finally, the Magistrate Judge found that Ground Five failed on the merits and the
Court agrees. Ground Five alleges that trial counsel was ineffective for failing to object
to Hubert Bryan’s (“Mr. Bryan”) testimony that “$2,500.00 was missing from his home
after the incident.” (ECF No. 1-2 at 22.) Petitioner argues that this was the first mention
of any missing money, and, therefore, trial counsel should have asked for a continuance
so he could investigate Mr. Bryan’s allegation and come up with a proper defense. (Id.)
To resolve this claim, the Magistrate Judge examined the PCR court’s ruling on this
issue and the relevant evidence presented at the PCR hearing. (ECF No. 40 at 35–37.)
She noted that trial counsel testified at the PCR hearing that a conviction for first-degree
burglary could be attained without reference to the $2,500.00. (ECF No. 24-1 at 156.)
She also noted trial counsel’s testimony that it was part of his trial strategy to ask only a
few questions during Mr. Bryan’s cross-examination, given that Mr. Bryan was “a very
sympathetic victim.” (Id. at 157.) The Magistrate Judge then found that “Petitioner has
failed to demonstrate what an investigation into the missing money would uncover,”
and, therefore, “has failed to demonstrate any error by trial counsel.” (ECF No. 40 at
37.) She further found that Petitioner has failed to demonstrate any resulting prejudice

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from the alleged error because “the State would have been able to prove the necessary
elements of first-degree burglary without the allegation that $2,500.00 was missing from
the victim’s residence.” (Id.) The Magistrate Judge concluded that the PCR court’s ruling
on this claim was reasonable. (Id. at 37–38.)
Here, Petitioner objects to the Magistrate Judge’s finding that the allegation of
the missing money “was not needed to find [] Petitioner guilty of burglary.” (ECF No. 50
at 40–41.) In her analysis of this claim, the Magistrate Judge outlined the elements of
first-degree burglary as stated in Section 16-11-311(A) of the South Carolina Code.
(ECF No. 40 at 37.) She noted the PCR court’s finding that “[T]he State was still able to
prove the [Petitioner’s] unlawful entry, intent to commit a crime, and bodily injury done to
victim,” and “that these elements alone were enough to satisfy the elements of
burglary.” (Id.) Thus, she correctly found that Petitioner has failed to demonstrate
resulting prejudice from the alleged error of trial counsel. Petitioner does not offer any
compelling argument as to how the Magistrate Judge erred in her analysis of this claim.
This objection is therefore overruled.
Petitioner’s remaining objections consist of nothing more than arguments that the
Magistrate Judge has already considered and rejected. Thus, the Court is tasked only
with review of the Magistrate Judge’s conclusions for clear error. Because the Court
agrees with the cogent analysis by the Magistrate Judge, it need not extensively discuss
those same issues for a second time here. Therefore, the Court will overrule Petitioner’s
remaining objections.

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CONCLUSION
After a thorough 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,
adopts the Report, and incorporates it herein. It is therefore ORDERED that
Respondent’s motion for summary judgment (ECF No. 25) 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).
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 this 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 appealability is DENIED.
IT IS SO ORDERED.

/s/ Bruce Howe Hendricks
United States District Judge
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March 16, 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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