Berry v. Sharp

Filing 36

ORDER RULING ON REPORT AND RECOMMENDATION: The Court agrees with the 30 recommendation of the Magistrate Judge. Respondent's 23 Motion for Summary Judgment is GRANTED and the Petition is DENIED. A certificate of appealability is DENIED. IT IS SO ORDERED. Signed by Honorable Donald C Coggins, Jr on 3/11/2025. (prou, )

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

)
)
Petitioner,
)
)
v.
)
)
Kenneth Sharp, Warden,
)
)
Respondent.
)
________________________________ )

Case No. 5:24-cv-00754-DCC

ORDER

Petitioner, represented by counsel, is seeking habeas corpus relief pursuant to 28
U.S.C. § 2254. ECF No. 1. Respondent filed a Motion for Summary Judgment and
Return and Memorandum on June 28, 2024. ECF Nos. 22, 23.

Petitioner filed a

Response in Opposition, and Respondent filed a reply. ECF Nos. 27, 28. In accordance
with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this matter was referred
to United States Magistrate Judge Kaymani D. West for pre-trial proceedings and a
Report and Recommendation (“Report”). On November 25, 2024, the Magistrate Judge
issued a Report recommending that the Motion for Summary Judgment be granted and
the Petition be denied. ECF No. 30. Petitioner filed objections, and Respondent filed a
reply. ECF Nos. 31, 32.
APPLICABLE LAW
The Magistrate Judge makes only a recommendation to this Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
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determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination of any portion of the Report of the
Magistrate Judge to which a specific objection is made. The Court may accept, reject, or
modify, in whole or in part, the recommendation made by the Magistrate Judge or
recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b).
The Court will review the Report only for clear error in the absence of an objection. See
Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating
that “in the absence of a timely filed objection, a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no clear error on the face of the
record in order to accept the recommendation.” (citation omitted)).
Petitioner’s claims are governed by 28 U.S.C. § 2254(d), which provides that his
petition cannot be granted unless the claims “(1) 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
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the presumption of correctness by clear and convincing evidence.”

28 U.S.C.

§ 2254(e)(1).
DISCUSSION
As an initial matter, the Magistrate Judge provides a thorough recitation of the
background facts and relevant law, which the Court incorporates by reference. Petitioner
raises four grounds in the Petition. Because Petitioner filed objections, the Court’s review
of the Report, the record, and the applicable law has been de novo.
Grounds One and Two
Grounds One and Two concern alleged errors by the South Carolina Court of
Appeals related to the search of the apartment Petitioner shared with his girlfriend.
Petitioner asserts that the South Carolina Court of Appeals erred both in failing to
suppress the evidence found during the search of the apartment because Petitioner had
a reasonable expectation of privacy in the apartment and in affirming the trial court’s
finding that Petitioner’s girlfriend voluntarily consented to the search of the apartment
when the consent was the result of coercion. The Magistrate Judge determined that these
claims are not cognizable on federal habeas review because Petitioner was given a full
and fair opportunity to litigate his Fourth Amendment claims in the state courts. In his
objections, Petitioner “still contends that the South Carolina Court of Appeals did not
provide him a full and fair opportunity to litigate his Fourth Amendment claims.” ECF No.
31 at 1. He argues that he “was left with mere case citations instead of an actionable
opinion from which he could develop further claims.” Id. at 1–2.
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The Court agrees with the recommendation of the Magistrate Judge. As noted in
the Report, Petitioner’s claims raised here were raised in a motion to suppress and were
also raised in his direct appeal. The South Carolina Court of Appeals issued an order
dismissing the appeal. Petitioner has not demonstrated that the South Carolina Court of
Appeals applied the incorrect standard in evaluating his appeal on these issues.
Moreover, the South Carolina Court of Appeals properly identified Petitioner’s challenges
to the trial court’s relevant evidentiary rulings, cited to appropriate caselaw, and included
parenthetical explanations pulling out the holdings germane to Petitioner’s case.
Therefore, because Petitioner had a full and fair opportunity to litigate his claims in the
state court, these claims are not cognizable on federal habeas review. See Stone v.
Powell, 428 U.S. 465, 494 (1976) (“[W]here the State has provided an opportunity for full
and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted
federal habeas corpus relief on the ground that evidence obtained in an unconstitutional
search or seizure was introduced at his trial.”).

Accordingly, summary judgment is

granted as to grounds One and Two.
Ground Three
In Ground Three, Petitioner asserts that trial counsel was ineffective for failing to
ensure Petitioner was properly advised of the State’s evidence against him prior to his
rejection of the final plea offer. This issue was raised to and ruled upon by the PCR court.
Here, the PCR court addressed trial counsel’s performance under the standard set
forth in Strickland. App. 995. The PCR court found that,
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Applicant argues Counsel was constitutionally ineffective for
failing to ensure Applicant was sufficiently aware of the State's
evidence before he rejected the second plea offer,
immediately prior to the start of the trial. The evidence
Applicant asserts Counsel failed to adequately review and
discuss with him is a series of three phone calls made from
and recorded by the detention center between Applicant and
Kayla, his girlfriend, and Applicant and Wallace. Applicant
does not deny he is the person speaking on the recordings.
Nonetheless, Applicant claims he was not sufficiently
apprised of the content of the recordings to make a decision
as to whether to accept or reject the plea offer, and Applicant
testified at the evidentiary hearing that he would have
accepted the offer had he known what was said on the calls.
This Court has reviewed the trial transcript and heard the
testimony of the witnesses at the evidentiary hearing and finds
this allegation is without merit. Applicant was present in the
courtroom and participated in a lengthy discussion between
the trial court, Counsel, and the solicitors regarding the plea
offer and the State's recent discovery of an additional phone
call it intended to introduce at trial, which the State specifically
noted was made by Applicant using another inmate's PIN or
account. Tr. pp. 189-95. Applicant claims he did not have
sufficient time to review the new evidence with Counsel before
determining whether to reject or accept the offer. However,
the record reflects Applicant was at least on notice of the
State's intention to use the newly discovered call at the time
he rejected the second fifteen-to-twenty year plea offer. Tr.
pp. 189-92. Additionally, Applicant has never denied he is in
fact the person speaking on the call. Tr. p. 575. Despite having
the opportunity to speak directly to the trial court, he never
informed the court he needed more time to make his decision,
that he had not heard the call or calls and wanted the
opportunity to do so before deciding whether to accept or
reject the offer, or that he felt Counsel had not properly
advised him on this issue. Tr. pp. 191-92.
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Moreover, the State has the right to withdraw its plea offer at
any time, absent a showing of detrimental reliance on the offer
by Applicant, which is not the issue in this case. Reed v.
Becka, 333 S.C. 676, 690, 511 S.E.2d 396, 404 (Ct. App.
1999) ("We adopt the rule the State may withdraw a plea
bargain offer before a defendant pleads guilty, provided the
defendant has not detrimentally relied on the offer."). "[I]t is
the prerogative of any person to waive his rights, confess, and
plead guilty, under judicially defined safeguards, which are
adequately enforced. However, a defendant has no
constitutional right to plea bargain." Id. at 685, 511 S.E. 2d at
401. Thus, the State was under no obligation to hold the offer
open, or even to make any offer at all. Applicant was aware of
the State's offer and of the fact the State had just discovered
at least one phone call the State considered beneficial to its
case and which it would use against him, should Applicant
choose to proceed to trial. As Applicant admitted at the
evidentiary hearing he made all three of the phone calls
ultimately admitted, Applicant clearly had knowledge of their
content at the time the State extended the offer and he
rejected it.
Accordingly, the Court finds Applicant's testimony he would
have accepted the offer had he known the content of the call
to be not credible. The Court further finds Applicant has failed
to meet his burden of proof as to either deficiency or prejudice
and denies relief. This allegation shall be dismissed with
prejudice.
App. 996–98. The PCR court’s denial of Petitioner’s ineffective assistance of counsel
claim was neither contrary to nor an unreasonable application of applicable Supreme
Court precedent. First, the PCR court applied the Strickland standard, which is the
applicable Supreme Court precedent. Second, the record fails to demonstrate the PCR
court confronted a set of facts that were materially indistinguishable from those
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considered in a decision of the Supreme Court but arrived at a result different from the
Supreme Court precedent.
In his objections, Petitioner argues that the Magistrate Judge misconstrued the
claim in that “[t]he crux of Petitioner’s claim was not that Petitioner was aware of the
contents of the calls, but that trial counsel wholly failed to listen to them and then failed to
advise Petitioner on the suitability of the plea offer and what impact it might have on the
trial.” ECF No. 31 at 2. Here, the Court’s review is limited by the appropriate habeas
standard. That is, the issue before the Court is not whether the undersigned agrees with
the PCR court, but instead, whether the PCR court’s decision was contrary to or involved
an unreasonable application of clearly established federal law or resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence
presented at the state court proceeding. Here, the PCR court’s ruling was supported by
the record. A review of the trial transcript shows that Petitioner was indeed present at the
hearing in which the phone calls were discussed, was on notice that the State had access
to those calls and was providing trial counsel with copies later that afternoon, and did not
inform the trial court that he needed more time to make a decision or that he felt trial
counsel had not properly advised him on this issue. App. 189–92. Further, Petitioner has
never denied he made the call so presumably he knew what was said.
Moreover, the PCR court’s credibility finding is entitled to deference. See Cagle v.
Branker, 520 F.3d 320, 324 (4th Cir. 2008) (“[F]or a federal habeas court to overturn a
state court's credibility judgments, the state court's error must be stark and clear.” (citing
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28 U.S.C. § 2254(e)(1))); see also Marshall v. Lonberger, 459 U.S. 422, 434 (“28 U.S.C.
§ 2254(d) gives federal habeas courts no license to redetermine credibility of witnesses
whose demeanor has been observed by the state trial court, but not by them”). The PCR
court determined that trial counsel’s testimony was credible and Petitioner’s testimony
was not credible. App. 998, 1000. The PCR court found, in light of the available evidence
and after witnessing Petitioner on the stand, that Petitioner’s testimony that he would have
accepted the plea offer had he known the contents of the call was not credible. Petitioner
has failed to put forward clear and convincing evidence to the contrary. Therefore, the
Court agrees with the Magistrate Judge that Petitioner has failed to show that the PCR
court’s denial of Petitioner’s ineffective assistance of counsel claim was either contrary to
or an unreasonable application of applicable Supreme Court precedent. Accordingly, he
has failed to meet his burden under § 2254 and summary judgment is granted as to this
Ground.
Ground Four
In Ground Four, Petitioner contends that trial counsel was ineffective for failing to
make a proper record and move for a continuance due to the matters in the recorded
phone calls and issues involving witness Wallace.
The first issue before the Court is whether this Ground was raised to and ruled
upon by the PCR court. This issue is noted by the Magistrate Judge but not squarely
addressed. As the Magistrate Judge proceeded to a review of the merits of this claim
and applied the deferential standard of review, it is presumed that she found this Ground
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was ruled upon by the PCR court. The only portion of Petitioner’s objections that could
assert an argument that this Ground was insufficiently ruled upon by the PCR court is the
following sentence: “Trial counsel also gave no tactical decision for her failure and the
PCR court failed to properly take notice of this ineffectiveness, rather focusing on the
admissibility of he phone calls, which is not the point.” ECF No. 31 at 3. As Petitioner is
represented by counsel, the Court is not required to liberally construe his filings;
accordingly, the Court finds that this is not a specific objection to the Magistrate Judge's
apparent dismissal of his argument that the PCR court did not rule on this claim.
Further, even if the Court considered this as a specific objection, the Court would
find that the PCR court did rule on this Ground. Upon review of the record, the issue of
whether trial counsel was ineffective for failing to request a continuance was clearly raised
to the PCR court. App. 848. In its ruling, the PCR court found as follows:
Applicant asserts Counsel failed to properly handle the issue
of the phone calls and the decision of Applicant's codefendant, Wallace, to invoke his Fifth Amendment right and
choose not to testify. Specifically, Applicant argues Counsel
should have moved for a continuance to have more time to
review the phone calls, or she should have argued more
effectively to keep the phone calls out of evidence. Applicant
asserts Counsel failed to properly argue the issue of
authentication of the Wallace phone call, which was made
from another inmate's account.
Based on this Court's review of the transcript, it appears the
parties initially expected Wallace to testify for the State.
However, the night before trial, Wallace and his attorney
notified the parties of Wallace's intention to invoke his Fifth
Amendment right against self-incrimination. The State then
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discovered a phone call between Applicant and Wallace from
the previous day in which Applicant asked Wallace to invoke
the Fifth Amendment in order not to testify against him. Tr. p.
195. The parties agreed not to mention Wallace in opening
statements or until they figured out what he was going to do,
and Counsel testified she did not feel this decision prejudiced
the defense.
The State proffered Wallace's testimony in camera, arguing
the testimony it was seeking was not incriminating, but
Wallace invoked the Fifth Amendment on the basis that
requiring him to admit he was with Applicant would potentially
open him up to additional grounds for revocation of his
probation. Tr. p. 332-33, 335-38. Counsel argued Wallace
could not selectively invoke the Fifth Amendment because
allowing him to do so would hamper the defense's ability to
cross-examine him, particularly if the State was allowed to
enter the post-Miranda statement he had previously given to
law enforcement. Tr. pp. 337-38, 340-42, 450. The trial court,
however, disagreed and indicated it understood the law to be
that the witness was allowed to determine what questions or
information he deemed incriminating and decide when to
assert the privilege, although the State could not call him to
the witness stand simply for the purpose of having him invoke
his right in front of the jury. Tr. pp. 344-45, 449. The State
further asserted Wallace's decision was based on his
conversation with Applicant, in which Applicant encouraged
Wallace not to testify against him. The trial court then
requested a transcript of the call and indicated the parties
would listen to the call together the next morning prior to the
jury arriving for the day, and the trial court would rule on
Wallace's right to invoke the Fifth, as well how the State would
be allowed to use the phone calls. Tr. p. 346.
Counsel testified at the evidentiary hearing that although she
anticipated Wallace would have been a friendly witness for the
defense, his expected testimony was not exculpatory for
Applicant. She also testified she realized the argument she
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was making regarding Wallace's ability to selectively invoke
the Fifth Amendment, if successful, would render Wallace
totally unavailable as a witness, but she felt it was important
to prevent the defense from being thwarted on crossexamination. Ultimately, Wallace did not testify in front of the
jury, and the court found the phone call between Wallace and
Applicant was admissible. Tr. pp. 2-4, 11, 542. Counsel
testified, and stated on the record at trial, that she agreed
portions of the phone calls were relevant and admissible. Tr.
p. 454.
Before the State introduced the phone calls, the parties made
further arguments to the trial court. Counsel objected to the
admission of the Wallace call on hearsay grounds, but the trial
court ruled hearsay was inapplicable because Wallace was
unavailable as a witness. Tr. pp. 532-33. Counsel did not
object to a four-minute phone call between Applicant and his
girlfriend, Kayla. However, she objected to portions a fifteenminute phone call between Applicant and Kayla on the
grounds of relevance and prejudice, particularly Applicant's
statement about needing to consult an attorney. Tr. pp. 53437. The State argued the statements were an admission or an
acknowledgment of guilt. Tr. p. 535. The trial court ruled the
entire call was admissible. Tr. pp. 538-39. All three phone
calls were admitted and played for the jury. Tr. pp. 542-43,
546.
The record reflects at least one of the phone calls—the one
between Applicant and Wallace—was not made from
Applicant's PIN or account, but from another inmate's. Tr. pp.
190, 575-76. The State introduced the recordings through a
witness from the detention center, who testified the recordings
were made and kept in the jail's regular course of business.
Tr. pp. 540-543. Applicant argues, however, since the
Wallace call was not made from his account, Counsel should
have further argued "authentication" or that the State did not
prove it was Applicant on the call.
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Again, Applicant admits he is the other person on the phone
call with Wallace. Moreover, Counsel testified she felt,
ethically, she could not make the argument it was not
Applicant on the call, and ultimately, the defense conceded it
was him in an effort to lessen the damage to the
defense's case. The Court finds this testimony credible.
This Court has had the opportunity to listen to the recordings
and finds Counsel's decision not to challenge the identity of
the second person as Wallace was reasonable. As the
investigator testified at trial, it is clear Applicant and Wallace
are discussing the facts of this case during the phone call. Tr.
p. 593. This Court finds the statements Applicant makes in the
phone calls are admissions or acknowledgments of guilt
admissible as statements against interest. Rule 804(b)(3).
Moreover, it was uncontested at trial that at least one of the
phone calls to Kayla was made by Applicant from Applicant's
PIN or account, and Applicant not argued that phone was not
properly authenticated. The jury could therefore authenticate
or identify Applicant's voice themselves by comparing that call
to the others. See State v. Vice, 259 S.C. 30, 190 S.E.2d 510
(1972) (comparison between recorded phone call and
recording of defendant's voice made during trial sufficient for
identification); Rule 901(b)(3) (comparison by trier of fact
sufficient for authentication or identification).
Accordingly, this Court finds Counsel was not deficient for not
objecting or not properly preserving her objection, nor was
Applicant prejudiced by Counsel's performance, as to
authentication because the call at issue—the Wallace call—
was properly authenticated by the combination of the
testimony of the officer from the detention center and the
comparison to at least one other call which was undisputedly
made by Applicant. Counsel cannot be deficient for failing to
make a non-meritorious objection, nor can Applicant be
prejudiced by such a "failure." Additionally, the Court finds
Counsel was not deficient for not moving for a continuance as
such a motion was unlikely to be successful where the record
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reflects Counsel had at least two days before the phone call
was introduced into evidence to listen to it, and a transcript of
the call was prepared for the parties and the Court to review
as well. This Court therefore denies relief and finds this
allegation shall be dismissed with prejudice.
App. 998–1001. While the majority of the PCR court’s discussion is spent on other
matters, he clearly determined that trial counsel was not ineffective for failing to move for
a continuance. Accordingly, the Court will proceed to a further review of this Ground.
The PCR court’s denial of Petitioner’s ineffective assistance of counsel claim was
neither contrary to nor an unreasonable application of applicable Supreme Court
precedent. First, the PCR court applied the Strickland standard, which is the applicable
Supreme Court precedent.

Second, the record fails to demonstrate the PCR court

confronted a set of facts that were materially indistinguishable from those considered in
a decision of the Supreme Court but arrived at a result different from the Supreme Court
precedent.
In his objections, Petitioner argues that trial counsel testified that she should have
requested a continuance, that trial counsel admitted she had concerns and failed to act
upon them, that she gave no tactical reason for her failure to act, and that such failure
was prejudicial. ECF No. 31 at 3. This objection overlooks the PCR court’s finding that
the continuance was unlikely to be granted based upon the fact that counsel had two days
to prepare. This conclusion is rooted in the evidence in the record. App. 192, 542, 869–
70. Therefore, the Court agrees with the Magistrate Judge that Petitioner has failed to
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show that the PCR court’s denial of Petitioner’s ineffective assistance of counsel claim
was either contrary to or an unreasonable application of applicable Supreme Court
precedent. Accordingly, he has failed to meet his burden under § 2254 and summary
judgment is granted as to this Ground.
CONCLUSION
Therefore, based on the foregoing, the Court agrees with the recommendation of
the Magistrate Judge. Respondent’s Motion for Summary Judgment is GRANTED and
the Petition is DENIED.
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

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for the issuance of a certificate of appealability has not been met. Therefore, a certificate
of appealability is DENIED.
IT IS SO ORDERED.
s/ Donald C. Coggins, Jr.
United States District Judge

March 11, 2025
Spartanburg, South Carolina

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