Green v. State of South Carolina

Filing 35

ORDER RULING ON REPORT AND RECOMMENDATION: This Court finds that the Magistrate Judge's recommendation is proper. Accordingly, the Court ADOPTS and incorporates by reference the Report and Recommendation, as modified, of the Magistrate Judge. ECF No. 30 . It is therefore ORDERED that Respondent's motion for summary judgment (ECF No. 17 ) is GRANTED and Petitioner's petition for writ of habeas corpus (ECF No. 1 ) is DENIED. A certificate of appealability is DENIED. Signed by Honorable Joseph F Anderson, Jr on 7/14/2017. (mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ORANGEBURG DIVISION

Richard Avon Green, #291708,

C/A No. 5:16-cv-3191-JFA

Petitioner,
vs.
Warden, Palmer Pre-Release Center,

ORDER

Respondent.

I.

INTRODUCTION

Richard Avon Green (“Petitioner”), proceeding pro se, filed this petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 against the Warden of the Palmer Pre-Release
Center (“Respondent”).
II.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner is a South Carolina Department of Corrections (“SCDC”) inmate incarcerated
at the Palmer Pre-Release Center. ECF No. 1-1 at 1. On or about September 19, 2016,1
Petitioner’s petition for writ of habeas corpus was filed. ECF No. 1. On December 22, 2016,
Respondent made a motion for summary judgment and filed a return with a memorandum of law
in support. ECF Nos. 16–17. Because Petitioner is proceeding pro se, the Magistrate Judge
entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising him of
the importance of the motion and the need for him to file an adequate response. ECF No. 18. As
of February 2, 2017, Petitioner had not responded to the motion. Consequently, the Magistrate
Judge entered an order directing Petitioner to advise the court whether he wished to continue

1

Petitioner is incarcerated and, thus, the Court will apply the prisoner mailbox rule to his filings. See
Houston v. Lack, 487 U.S. 266 (1988).
1

with the case. ECF No. 21. In addition, the Magistrate Judge ordered that Petitioner file his
response by March 2, 2017, if he wished to proceed. Id. On or about February 10, 2017,
Petitioner filed a response, as well as requested a continuance to adequately respond and conduct
further investigation. ECF No. 24. The Magistrate Judge denied Petitioner’s request to conduct
discovery or investigation, but granted Petitioner’s request for a continuance and extended the
deadline to March 14, 2017. ECF No. 25. Petitioner timely filed a supplemental response. ECF
No. 29.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c), D.S.C., the
case was referred to the Magistrate Judge for pretrial handling.2 On March 24, 2017, the
Magistrate Judge issued a Report and Recommendation (“Report”) wherein she recommends this
Court should grant Respondent’s motion for summary judgment and deny the petition. ECF No.
30 at 24. 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 to the Magistrate
Judge with instructions. See 28 U.S.C. § 636(b). In the absence of specific objections to the
Report of the Magistrate Judge, this Court is not required to give an explanation for adopting the
recommendation. See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). The Report sets forth
in detail the relevant facts and standards of law on this matter, and this Court incorporates those
facts3 and standards4 without a recitation.5

2

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 (1976).
3
The Court modifies the Report to reflect that Petitioner filed his post-conviction relief application on
March 3, 2014, not April 3, 2014. ECF No. 16-11 at 17.
In addition, Petitioner filed an amended application with additional grounds, such grounds were
discussed during the hearing and do not affect the analysis contained in the Report. ECF No. 16-11 at 41–
48.
2

The parties were advised of their right to object to the Report, which was entered on the
docket on March 24, 2017. ECF No. 30. The Magistrate Judge gave the parties until April 7,
2017, to file objections. Id. On or about April 6, 2017, Respondent filed objections to the Report.
ECF No. 33-1. Thus, this matter is ripe for this Court’s review.
III.

DISCUSSION

Petitioner raises four grounds on which he claims that he is being held in violation of the
Constitution, laws, or treaties of the United States. ECF No. 1. The Magistrate Judge
recommended that all grounds—except a portion of Ground Three—were not procedurally
barred,6 but all grounds warranted dismissal. ECF No. 30. Petitioner made three objections to the
Report with regard to the first three grounds.7 ECF No. 33. Each recommendation and objection
will be discussed in accordance with the ground it was made upon.

Finally, the Report is modified on the seventeenth page to reflect the trial transcript reveals that the
solicitor misspoke when he requested a lesser included charge of “attempted armed robbery” and it was
clarified as a request for “attempted burglary.” ECF No. 16-10 at 153–57.
4
Inasmuch as the Report cites to Cruz v. Beto, 405 U.S. 319 (1972), to support a pro se litigant’s
complaint is to be liberally construed, it is replaced with Erickson v. Pardus, 551 U.S. 89 (2007). The
former case relies solely upon the “no set of facts” standard provided in Conley v. Gibson, 355 U.S. 41
(1957), which was overruled in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 560–63 (2007). See Francis v.
Giacomelli, 588 F.3d 186, 192 n.1 (4th Cir. 2009); see also Erickson, 551 U.S. at 93–94 (reiterating the
liberal construction of a pro se complaint after the decision in Twombly).
Lastly, the Court adds to the Report’s legal standard that “where a constitutional violation has probably
resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even
in the absence of a showing of cause for the procedural default.” Murray v. Carrier, 477 U.S. 478, 496
(1986); see Coleman v. Thompson, 501 U.S. 722, 750 (1991) holding modified by Martinez v. Ryan, 566
U.S. 1 (2012) (“In all cases in which a state prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is
barred unless the prisoner can 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.”).
5
None of the modifications effect the analysis of the Report.
6
Furthermore, the Court finds that there is not an absence of available state corrective process or an
existence of circumstances that render such process ineffective to protect the rights of Petitioner. 28
U.S.C. § 2254(b)(1)(B).
7
Petitioner did not object to the Report’s recommendation that the fourth ground—regarding the circuit
court’s jurisdiction—was not a cognizable habeas ground and the trial court had jurisdiction. However,
should any of Petitioner’s objections be liberally construed to apply to this ground, the Court agrees with
the analysis in the Report. Furthermore, if the Court had found Ground Four to be a cognizable habeas
3

A. Grounds One and Two8
Petitioner’s first ground is “Insufficient Indictment (Enlarged)” and he claims “that [he
was] never Indicted for attempted, and attempt never went before the grand jury.” ECF No. 1 at
5. Petitioner’s second ground is “Due Process Violation” and he claims that he was “never put on
notice for attempted burglary no one even said anything about attempt, until after [he was]
acquitted of 1st degree burglary through a direct verdict.” Id. at 7.
The Magistrate Judge addressed Grounds One and Two together and recommended that
they were not procedurally barred. ECF No. 30. However, as to Ground One, the Magistrate
Judge recommended that this Court could not “conclude that the state trial court or the state
appellate court’s determination on the issue was contrary to, or an unreasonable applicable of,
clearly established federal law” because each based their rulings, regarding burglary in the first
degree or a lesser included offense of attempted burglary in the first degree,9 on an interpretation
of the South Carolina Code of Laws or common law. ECF No. 30 at 19. Regarding Ground Two,
the Magistrate Judge recommended that this Court should find Petitioner’s due process rights
were not violated by the trial court’s jury instruction because Petitioner was indicted for
burglary, a more serious crime under South Carolina law. Id. at 20. Moreover, the Magistrate
Judge found that the trial court’s jury charge of attempted burglary was not unlawful or
unconstitutional. Id.

ground, the trial court had jurisdiction. The Court adds that an indictment was issued for burglary to be
tried before the circuit court and Petitioner was simply convicted of a lesser included offense—attempted
burglary. Furthermore, as discussed infra, the circuit court did not acquit Petitioner of burglary until after
he ruled that he would instruct the jury as to attempted burglary. Thus, the circuit court did have
jurisdiction allowing Petitioner to be convicted of attempted burglary. Therefore, Ground Four is
dismissed.
8
Due to the similarity of these grounds and the combined analysis of same in the Report, the Court will
address these grounds simultaneously.
9
All references to these charges hereinafter will be to burglary or attempted burglary.
4

Petitioner objects to the Magistrate Judge’s recommendation that summary judgment
should be granted on Grounds One and Two. ECF No. 33. For example, Petitioner argues that
the “State10 Constitution 5th Amendment state that no person shall be put in jeopardy twice for
the same crime and its clear that once I were acquitted of the 1st degree burglary I were put in
jeopardy again for the same charge.” ECF No. 33 at 1. In addition, Petitioner argues that he was
sentenced “for something that [was] not included in the indictment” and “never had a trial for.”
Id. at 1–2. These objections simply rehash Petitioner’s arguments in his response in opposition.
See ECF Nos. 24, 29. However, this Court will address them to alleviate any concern.
Petitioner’s attempt to relay the facts surrounding the directed verdict are misleading.
Specifically, the following events transpired regarding the motion for a directed verdict on the
burglary charge:
THE COURT: All right, Mr. Hastie, motions on behalf of Defendant?
MR. HASTIE [Defense Counsel]: Yes, Your Honor. Your Honor, I certainly like
to make a motion for a directed verdict. We know that one of the four elements of
burglary is there must be an entry.
...
I think it fails on the elements itself because there never was an entry into [the
victim’s] home.
THE COURT: All right. So your matter of fact they failed to prove an entry
which is one of the requirements of burglary?
MR. HASTIE: Yes, sir.
THE COURT: All right. Mr. Meadors.
MR. MEADORS [Solicitor]: [After arguing circumstantial evidence existed—due
to the garage door being lifted two inches—that there was an entry,]
...
Judge, also if at the appropriate—depending on what Your Honor’s ruling is now,
I was going to ask Your Honor to consider the lesser included offense of
attempted [first degree burglary].
10

Presumably, Petitioner intended to refer to the United States Constitution as the South Carolina
Constitution only contains three amendments.
5

...
MR. MEADORS: . . . I think circumstantially, is theres to [sic] an entry there and
if not I think it would be fewer it will be proven entry still have to bring
everything else well consent and intent submit [sic] crime which to answer that I
think cutting the phones using night before but something good that was going to
be planned. Clearly I think there was attempt to be inferred from that. Judge, we
respectfully ask Your Honor to charge lesser included offense of attempted
burglary. We think it meets the defenses.
THE COURT: Okay. I’m going to think about it. Let me go back and see if I can
find anything on it in a few minutes. . . .
...
Now counsel, assuming and I haven’t made this decision yet but assuming that
that two go forward and this matter goes to the jury, tell me about your position
Mr. Meadors with regard to report to arguments how many arguments [sic]
whether how much time you need?
...
THE COURT: All right. We’re back on the record . . . Counsel, I have done some
research and tried to determine what I thought was appropriate and correct under
the law of this case. I am convinced that there is no evidence in the record upon
which the jury could convict the defendant of burglary in the first degree because
the evidence is simply not there for a showing of entry which is one of the
elements of crime of burglary in the first degree. . . . That does not end the inquiry
because then we have to look and determine whether or not the crime of
attempted burglary should go to the jury as a lesser included offense and I have
done some research on that . . . there is a South Carolina case the language for
which is first of all, that under the elements test crime will only be considered a
lesser offense if the greater crime encompasses all of the elements of lesser. And
in this case the greater crime being burglary in the first degree requiring entry
whereas the lesser offense does not require an entry but requires all of other
elements and furthermore, this particular case goes on to say that when an
indictment for greater offense trial court has the requisite jurisdiction to charge
and convict a defendant of any lesser included offense inconclusive of instruction
is required only whether the evidence warrants such an instruction. To me the
evidence in this case is exactly that, . . . so the long and short of it is that I am
going to submit the case to the jury on the lesser included offense of attempted
burglary in the first degree and not on burglary in the first degree . . . . All right,
that will be the Court’s ruling.

6

ECF No. 16-10 at 150–65. (emphasis added). Thus, Petitioner’s defense counsel moved for a
directed verdict and, before the trial judge ruled upon that motion, the prosecution requested a
charge of the lesser included offense of attempted burglary. The trial judge simultaneously
considered both issues and decided “to submit the case to the jury on the lesser included offense
of attempted burglary in the first degree and not on burglary in the first degree.” Id. at 165.
As stated by the Magistrate Judge, the rulings of the trial court and appellate court were
based on state statutes and common law. Under South Carolina law, “A trial [court] is required to
charge a jury on a lesser included offense if there is evidence from which it could be inferred that
a defendant committed the lesser offense rather than the greater.” State v. Gilliland, 741 S.E.2d
521, 527 (S.C. Ct. App. 2012) (quoting State v. Drafts, 340 S.E.2d 784, 785 (S.C. 1986)). “The
federal rule is that a lesser included offense instruction should be given ‘if the evidence would
permit a jury rationally to find [a defendant] guilty of the lesser offense and acquit him of the
greater.’” Hopper v. Evans, 456 U.S. 605, 612 (1982) (quoting Keeble v. United States, 412 U.S.
205, 208 (1973)). Thus, the South Carolina rule clearly does not offend federal constitutional
standards nor Petitioner’s right to due process. Furthermore, evaluation of Petitioner’s claims
that his rights under the Fifth Amendment or to due process were violated are without merit.
The Double Jeopardy Clause under the Fifth Amendment to the United States
Constitution states, “No person shall . . . be subject for the same offence to be twice put in
jeopardy of life or limb.” U.S. Const., Amdt. 5. “The constitutional prohibition against ‘double
jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and
possible conviction more than once for an alleged offense.” United States v. DiFrancesco, 449
U.S. 117, 127 (1980) (internal citation and quotations omitted). As explained by the United
States Supreme Court:

7

The underlying idea . . . is that the State with all its resources and power should
not be allowed to make repeated attempts to convict an individual for an alleged
offense, thereby subjecting him to embarrassment, expense and ordeal and
compelling him to live in a continuing state of anxiety and insecurity, as well as
enhancing the possibility that even though innocent he may be found guilty.
Id. (quoting Green v. United States, 355 U.S. 184, 187–88 (1957)); see also Blueford v.
Arkansas, 566 U.S. 599 (2012). Thus, the United States Supreme Court has summarized the
“guarantee [against double jeopardy] has been said to consist of three separate constitutional
protections. It protects against a second prosecution for the same offense after acquittal. It
protects against a second prosecution for the same offense after conviction. And it protects
against multiple punishments for the same offense.” United States v. DiFrancesco, 449 U.S. 117,
129 (1980) (internal citation and quotation omitted).
With regard to the Fifth Amendment of the United States Constitution, the United States
Supreme Court has held that a defendant’s trial ends in an acquittal when a trial court rules that
the State has failed to produce sufficient evidence of his guilt, and, thus, the Double Jeopardy
Clause bars retrial for the offense. See Evans v. Michigan, 133 S. Ct. 1069, 1081 (2013). In
Evans, the defendant moved for a directed verdict of acquittal in the state trial court, arguing that
the prosecution had failed to prove a burned building was a dwelling—an alleged element of the
charged offense—and the trial court granted the motion. Id. at 1073. However, the prosecution
only contested whether the element was required and did not appear to request a charge of a
lesser included offense. Id. at 1073 (citing People v. Evans, 810 N.W.2d 535, 539 (Mich. 2012)).
Here, the solicitor requested a charge for the lesser included offense of attempted
burglary before the trial court ruled on the motion of Petitioner’s defense counsel for a directed
verdict. The trial court considered both issues together, relying upon South Carolina statutes and
common law, and specifically ruled, “I am going to submit the case to the jury on the lesser

8

included offense of attempted burglary in the first degree and not on burglary in the first degree. .
. . All right, that will be the Court’s ruling.” ECF No. 16-10 at 165. Thus, the trial court issued its
final decision on each issue after giving them due consideration by first ruling that a charge of
the lesser included offense would be given and, second, that Petitioner was entitled to a directed
verdict on the greater offense. See Smith v. Massachusetts, 543 U.S. 462, 469 n.4 (2005)
(referencing Swisher v. Brady, 438 U.S. 204 (1978) and recognizing “that the initial jeopardy
does not end until there is a final decision”); see also S.C. R. Crim. P. 19 (implying a motion for
directed verdict does not need to be immediately ruled upon). The United States Supreme Court
has “held that the Double Jeopardy Clause is violated when a defendant, tried for a greater
offense and convicted of a lesser included offense, is later retried for the greater offense,” which
is different than a defendant may not be convicted of a lesser included offense at the conclusion
of a trial as Petitioner seems to contend. Blueford v. Arkansas, 132 S. Ct. 2044, 2052 (2012).
Moreover, jeopardy may terminate on some counts even as it continues on others. Smith v.
Massachusetts, 543 U.S. 462, 465–70 (2005).
Here, Petitioner was not subjected to a second trial or prosecution nor was additional
evidence being surmounted against him to convict him of attempted burglary. The prosecution
merely moved for the trial judge to instruct the jury on a lesser included offense, which was
granted, before the trial judge granted the motion of Petitioner’s defense counsel to acquit him of
the greater offense.
As to Petitioner’s due process argument, the United States Supreme Court has previously
declined “to hold that the Due Process Clause provides greater double-jeopardy protection than
does the Double Jeopardy Clause.” Sattazahn v. Pennsylvania, 537 U.S. 101, 116 (2003). The
South Carolina Supreme Court recently articulated, “Due process requires that a lesser included

9

offense instruction be given only when the evidence warrants such an instruction. The jury’s
discretion is thus channeled so that it may convict a defendant of any crime fairly supported by
the evidence.” Cook v. State, 784 S.E.2d 665, 669 (S.C. 2015) (internal citations and quotations
omitted) (emphasis in original). As discussed above, Petitioner’s right to due process was not
violated by instruction of the lesser included charge, which appears to be a standard procedure in
state and federal courts. See, e.g., United States v. Walkingeagle, 974 F.2d 551, 553 (4th Cir.
1992) (holding a district court retained jurisdiction over the lesser included offense after it
granted judgment of acquittal on the statutory felony counts as the rule allowing a court to
submit an uncharged lesser included offense to the jury was a matter of procedure that “was
originally intended to aid prosecutors whose proof of the charged offense failed, [but] defendants
more often invoke the procedure as a means of giving the jury a less serious alternative”).
Thus, the charge of attempted burglary was deemed to be a lesser included offense of
burglary and the issue was raised before the trial judge ruled on the motion for a directed verdict
on the greater offense. Moreover, the lesser included charge was not required to be listed on the
indictment or presented to a grand jury for this state charge. Petitioner’s right under the Fifth
Amendment was not violated as he was not acquitted of the greater offense until after the trial
judge decided he would instruct the jury on the lesser included offense so double jeopardy had
not attached. Finally, Petitioner’s right to due process was not violated as he was on notice of the
elements of the greater offense.
Therefore, the state courts’ decisions did not result “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” nor were they “based on an unreasonable determination of

10

the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254.
Furthermore, Petitioner’s objections are overruled and Grounds One and Two are dismissed.
B. Ground Three
Petitioner’s third ground is “Ineffective Assistance of Counsel,” and he claims his lawyer
“allowed Improper admission of here say” and was “not prepare[d] for attempted burglary, or
less[er] included offense.” ECF No. 1 at 8. Regarding Ground Three, the Magistrate Judge
recommended that the hearsay issue was procedurally barred because it was not raised to and
ruled upon by the PCR court nor raised in the appeal from Petitioner’s PCR dismissal. ECF No.
30 at 20. Thus, the Magistrate Judge recommended this portion of Ground Three be dismissed
without review on the merits. Id. at 20–21. As to the lawyer’s preparedness for attempted
burglary being charged, the Magistrate Judge recommended that the PCR court did not
unreasonably misapply clearly established federal law in rejecting Petitioner’s ineffectiveassistance-of-counsel claim nor did the PCR court make objectively unreasonable factual
findings. Id. at 22–23.
Petitioner objects to the Report’s recommendation and argues that his lawyer was not
effective because the lawyer acknowledged that he was not fully prepared “to take on the task at
hand.” ECF No. 33 at 2.
1. Counsel’s Effectiveness Regarding Hearsay Objection
To the extent that Petitioner’s objection is construed as an objection to the entire
recommendation for Ground Three, the Magistrate Judge correctly concluded that whether
Petitioner’s counsel allowed hearsay testimony was not preserved for review and is procedurally
barred as this issue was not raised to the PCR court nor was it raised on appeal from its

11

dismissal. In addition, Petitioner has not argued that the procedural default is excused by cause
and prejudice or actual innocence.
Moreover, should this portion of Ground Three not be barred, Petitioner has failed to
show how counsel’s performance was deficient and resulted in prejudice. Hearsay “is a
statement, other than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” S.C. R. Evid. 801(c); accord Fed. R. Evid.
801(c) (“‘Hearsay’ means a statement that: (1) the declarant does not make while testifying at the
current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted
in the statement.”). The victim’s statements as to what she observed during the crime and her
identification of him are not hearsay.11
Thus, the performance of Petitioner’s counsel in failing to object to this evidence as
hearsay could not have been deficient, and, if not procedurally barred, this portion of Ground
Three would fail on the merits.
2. Counsel’s Effectiveness Regarding Attempted Burglary Charge
With regard to the second portion of Ground Three—claiming his lawyer was not
prepared to address attempted burglary—the Court agrees with the Magistrate Judge’s
recommendation that the PCR court did not unreasonably apply clearly established federal law in
rejecting Petitioner’s ineffective-assistance-of-counsel claim nor did the PCR court make
objectively unreasonable factual findings. Id. at 22–23.

11

In Ground Three—as to the hearsay issue—it is unclear how it arose as the victim testified as to what
she saw and her conduct whereas hearsay is defined as a “statement that . . . the declarant does not make
while testifying at the current trial . . . and . . . a party offers in evidence to prove the truth of the matter
asserted in the statement.” FRE 801.
12

Petitioner objects to the Report’s recommendation and argues that his lawyer was not
effective because the lawyer acknowledged that he was not fully prepared “to take on the task at
hand.” ECF No. 33 at 2.12
During the PCR hearing, Petitioner testified that his trial counsel met with him two to
three times and discussed the evidence as well as possible defenses with him. ECF No. 16-11 at
46–47, 49. Trial counsel testified that he met with Petitioner four to five times prior to trial,
moved for discovery as well as reviewed it with Petitioner, and conducted an investigation even
though Petitioner did not provide him with any witnesses to interview on his behalf. ECF No. 1611 at 52–54. Moreover, trial counsel explained that he moved for a directed verdict on the
burglary charge, which the trial judge granted, and trial counsel objected to the jury considering
attempted burglary. Id. at 53. Trial counsel testified that he felt prepared for trial, but, as to the
“defense of no presence,” the witness was “a hundred percent certain [Petitioner] was there” and
Mr. Green, who claimed to be home alone, decided not to take the stand due to his extensive
record. ECF No. 16-11 at 55. During his closing at trial, trial counsel did argue Petitioner was
not present at the victim’s house at the time of the attempted burglary. ECF No. 16-11 at 59;
ECF No. 16-10 at 169–76.13 Trial counsel also testified that he spoke “with the Solicitor and
there was no discussion from the Solicitor’s Office about charging him with the attempt so when
they came with that, it was kind of a surprise to us”; however, trial counsel did object to the
attempted burglary charge and was overruled. ECF No. 16-11 at 60–61. Finally, when asked if
As to Petitioner’s contention that his trial counsel was ineffective for failing to raise the defense of no
presence at the alleged location (ECF No. 16-11 at 41), trial counsel provided an explanation as to why
this defense was not strongly raised. During the PCR hearing, trial counsel explained that the victim knew
Petitioner very well, was able to see him through the peephole as well as her window, and was able to
positively identify him as the suspect. ECF No. 16-11 at 54–55. Moreover, Petitioner did not provide trial
counsel with any witnesses to vouch for his location because he claimed that he was home alone sleeping
in his bed, Petitioner chose not to testify at the trial, and Petitioner stated that he never discussed putting
forth the defense with his attorney. ECF No. 16-11 at 42, 49–50, 52–53.
13
A copy of the trial transcript was before the PCR court at the time of its ruling. ECF No. 16-11 at 72.
12

13

his defense strategy would have changed if he had known Petitioner would be facing attempted
burglary, trial counsel answered, “Probably not because I felt that there was absolutely no
evidence that he was there, that they could prove that and that they did prove that. So we
probably – the strategy would not have changed.” ECF No. 16-11 at 63.
During the PCR hearing, the PCR judge stated, “It’s clear from the transcript that [trial
counsel] did everything he could do to try to win this case for [Petitioner]. ECF No. 16-11 at 64.
The PCR judge stated that trial counsel “did a great job” and “there [is] no basis for a PCR in this
case.” Id. at 68–69. Notably, the PCR court found trial counsel’s testimony credible and
Petitioner’s testimony not credible. ECF No. 16-11 at 75.
To the extent that Petitioner objects because trial counsel was not fully prepared for trial,
it appears to rest solely on trial counsel’s surprise by the attempted burglary charge. However, as
discussed above, trial counsel was prepared for trial and obtained a directed verdict on the charge
upon which Petitioner was indicted. With regard to trial counsel’s surprise as to the attempted
burglary charge request, trial counsel stated that he had researched the issue and did not believe
it was a lesser included offense of burglary or proper for the jury to consider it. ECF No. 16-10 at
157–58. Trial counsel objected to the attempted burglary charge, and the trial court overruled
Petitioner’s objection. ECF No. 16-10 at 164–66. In addition, trial counsel specifically stated that
he would not have changed his strategy because he maintained that Petitioner did not enter the
home and was not present during the attempted burglary.
The PCR court found that trial counsel’s actions were reasonable, and even if they were
not, Petitioner could not show prejudice “as there was clear overwhelming evidence of guilt” due
to the positive identification. ECF No. 16-11 at 77. Thus, the Magistrate Judge correctly
recommended that Petitioner failed to demonstrate the PCR court unreasonably applied the

14

Strickland/Hill test or clearly established federal law. ECF No. 30 at 23. Moreover, the
Magistrate Judge was correct to recommend that the PCR court did not make objectively
unreasonable factual findings. Id.
Therefore, a portion of Ground Three is procedurally barred and not excused due to the
failure to show cause and prejudice or actual innocence nor would it be successful on the merits.
Furthermore, Respondent is entitled to summary judgment on the remaining portion of Ground
Three as it is unsuccessful on the merits and Petitioner’s objections are overruled. Moreover, the
state courts’ decisions did not result “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” nor were they “based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254.
IV.

CONCLUSION

After a careful review of the record, the applicable law, the Report and the objections
thereto, this Court finds that the Magistrate Judge’s recommendation is proper. Accordingly, the
Court ADOPTS and incorporates by reference the Report and Recommendation, as modified, of
the Magistrate Judge. ECF No. 30. It is therefore ORDERED that Respondent’s motion for
summary judgment (ECF No. 17) is GRANTED and Petitioner’s petition for writ of habeas
corpus (ECF No. 1) is DENIED.

15

Further, because Petitioner has failed to make “a substantial showing of the denial of a
constitutional right,” a certificate of appealability is DENIED. 28 U.S.C. § 2253(c)(2).14
IT IS SO ORDERED.

July 14, 2017
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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) (2012). 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); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676, 683–84 (4th
Cir. 2001). In the instant matter, the Court finds that Petitioner has failed to make “a substantial showing
of the denial of a constitutional right.”
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