Zeigler v. Bush
ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 24 Motion for Summary Judgment. Petitioner's Petition for Writ of Habeas Corpus (ECF No. 1) is DISMISSED without an evidentiary hearing. Certificate of appealability is denied. Signed by Honorable J Michelle Childs on 9/21/2015.(cwhi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Civil Action No. 9:14-cv-01162-JMC
Petitioner brought this action seeking relief pursuant to 28 U.S.C. § 2254. This matter is
before the court for review of the Magistrate Judge's Report and Recommendation (“Report”)
(ECF No. 33), filed on March 3, 2015, recommending that Respondent’s Motion for Summary
Judgment (ECF No. 24) be granted and Petitioner’s Petition for Writ of Habeas Corpus (ECF
No. 1) be dismissed with prejudice. Petitioner filed an Objection to the Magistrate Judge’s
Report and Recommendation (the “Objection”). (ECF No. 36.) For the reasons set forth below,
the court GRANTS Respondent’s Motion for Summary Judgment (ECF No. 24) and
DISMISSES Petitioner’s Petition for Writ of Habeas Corpus (ECF No. 1) without an evidentiary
This court has jurisdiction over this matter pursuant to 28 U.S.C. § 2254, which provides
that a federal district court has jurisdiction to entertain a § 2254 petition when the petitioner is in
custody of a state court in violation of the Constitution, laws, or treaties of the United States.
II. FACTUAL AND PROCEDURAL BACKGROUND
The Report contains a thorough recitation of the relevant factual and procedural
background of the matter. (See ECF No. 33 at 1–5.) The court concludes upon its own careful
review of the record that the Report’s factual and procedural summation is accurate, and the
court adopts this summary as its own.
III. LEGAL STANDARD
A. The Magistrate Judge’s Report and Recommendation
The Report is made in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02
for the District of South Carolina. The Magistrate Judge makes only a recommendation to this
court. The court reviews de novo only those portions of a Magistrate Judge’s recommendation to
which specific objections are filed. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315
(4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983); Orpiano v. Johnson, 687
F.2d 44, 47 (4th Cir. 1982). She reviews those portions which are not objected to—including
those portions to which only “general and conclusory” objections have been made—for clear
error. Id. The court may accept, reject, or modify—in whole or in part—the recommendation of
the Magistrate Judge or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
B. Relief under 28 U.S.C. § 2254
The Antiterrorism and Effective Death Penalty Act of 1996, as codified in 28 U.S.C. §
2254, governs Petitioner’s federal habeas claims. Petitioners seeking relief pursuant to § 2254
usually must exhaust all available state court remedies before seeking relief in federal court. §
2254(b). Federal courts may not thereafter grant habeas corpus relief unless the underlying state
adjudication comports with § 2254(d), which provides:
[a]n application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim—(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.
§ 2254(d) (emphasis added).
A state court’s decision is contrary to clearly established federal law when it “applies a
rule that contradicts the governing law set forth” by the United States Supreme Court or
confronts facts essentially indistinguishable from a prior Supreme Court decision and
“nevertheless arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor,
529 U.S. 362, 405–06 (2000). In contrast, a state court’s decision involves an “unreasonable
application” of “clearly established” federal law 1) “if the state court identifies the correct
governing legal rule from this [Supreme] Court’s cases but unreasonably applies it to the facts of
the particular state prisoner’s case” or 2) “if the state court either unreasonably extends a legal
principle from [Supreme Court] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407.
In line with Williams, the Fourth Circuit has noted that an “unreasonable application” is
not necessarily an “incorrect application” of federal law, explaining that “an incorrect application
of federal law is not, in all instances, objectively unreasonable.” Humphries v. Ozmint, 397 F.3d
206, 216 (4th Cir. 2005) (citing Williams, 529 U.S. at 413). Thus, to grant a habeas petition, a
federal court must determine that the state courts’ adjudication of a petitioner’s claims was “not
only incorrect, but that it was objectively unreasonable.” McHone v. Polk, 392 F.3d 691, 719
(4th Cir. 2004).
In making this determination, a federal court’s habeas review focuses on the state court
decision that already addressed the claims, not “the petitioner’s free-standing claims
themselves.” McLee v. Angelone, 967 F. Supp. 152, 156 (E.D. Va. 1997), appeal dismissed, 139
F.3d 891 (4th Cir. 1998). And a Petitioner who brings a habeas petition in federal court must
rebut facts relied upon by the state court with “clear and convincing evidence.” 28 U.S.C. §
2254(e)(1); 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 28 U.S.C. § 2254(e)(1))).
C. Procedural Bar of Claims for Federal Review
A habeas petitioner must properly raise and preserve an issue on direct appeal to avoid
that issue being barred from further state collateral review. See, e.g., Whiteley v. Warden, Wyo.
State Penitentiary, 401 U.S. 560, 562 n. 3 (1971); Ingram v. State of S.C., No. 97-7557, 1998
WL 726757, at *1 (4th Cir. Oct. 16, 1998); Josey v. Rushton, No. 00-547, 2001 WL 34085199, at
*2 (D.S.C. Mar. 15, 2001). For a federal court to be appropriate in ignoring a state procedural
bar, a petitioner would need to demonstrate 1) cause for his failure to raise the claim in the state
courts, and 2) actual prejudice resulting from the failure. Wainwright v. Skykes, 433 U.S. 72
(1977); see also Reed v. Ross, 468 U.S. 1, 10–11 (1984) (noting that state procedural bars
promote “the finality of [judicial] decisions”). Alternatively, a petitioner can demonstrate that a
federal court’s failure to consider the claims, regardless of their procedural bar, would result in a
“fundamental miscarriage of justice.” Engle v. Isaac, 456 U.S. 107, 135 (1982) (“[W]e are
confident that victims of a fundamental miscarriage of justice will meet the cause-and-prejudice
standard.” (citing Wainwright, 433 U.S. at 91)).
A. Report and Recommendation Summary
The Report addresses the following of Petitioner’s habeas allegations, quoted verbatim:
Ground One: Whether trial court failed to grant a new trial based on juror
Ground Two: Whether Trial Counsel Was Ineffective for failing to Move For
Ground Three: Whether Trial Court Failed to Grant Directed Verdict Motion Was
Ground Four: Whether State Failure to prove guilt beyond a Reasonable doubt
was based on juror misconduct.
(ECF No. 1 (excluding “supporting facts”).)
The Magistrate Judge first concluded that Ground Three was procedurally barred because
Petitioner had not properly raised and preserved this issue in his direct appeal to the South
Carolina State Supreme Court for discretionary review. (ECF No. 33 at 6–7) (citing supporting
United States Supreme Court and Fourth Circuit case law).). Neither did Petitioner show cause
for his failure to raise the claim in the state courts or actual prejudice resulting from the failure.
(Id. No. 8 (citing Rodriguez v. Young, 906 F.2d 1153, 1159 (7th Cir. 1990), cert. denied, 498
U.S. 1035 (1991) and Wainwright v. Skykes, 433 U.S. 72 (1977)).) The Magistrate Judge thus
concluded that this failure precludes the claims’ federal habeas review. (Id. at 7.)
As for Ground One and Ground Four, the Magistrate Judge concluded that he could
“discern no reversible error” in the state courts’ findings that there was no juror misconduct. (Id.
at 13.) As part of this conclusion, the Magistrate Judge applied Tanner v. United States, 483
U.S. 107, 119–21 (1987) (emphasizing the “extraneous influence” exception to not admitting
jury testimony and holding that an evidentiary hearing is required where “extrinsic influence or
relationships have tainted the [jury] deliberations”). He determined that in this case, “there is no
evidence of extraneous influence, or impropriety in the process of not going through the give and
take of jury deliberations” and therefore no evidence to justify allowing jury testimony to
impeach its verdict or evidence that requires a new trial. (Id. at 13.) The Magistrate Judge
moreover referenced the policy considerations supporting “‘the common law rule against the
admission of jury testimony to impeach a verdict.’” (Id. at 13. (citing Tanner, 483 U.S. at 119).)
He accordingly concluded that the juror’s statements during the post-trial investigation in this
case did not suggest any “improper consideration” in the jury’s rendering of the verdict against
Petitioner. (Id. at 16.)
The Magistrate Judge then evaluated the state court’s application of Strickland v.
Washington, 466 U.S. 668 (1984) to Petitioner’s claim of ineffective assistance of trial counsel in
support of Ground 2 of his habeas petition. (ECF No. 33 at 17–23.) Under Strickland, Petitioner
needed to have shown not only that counsel’s performance was deficient under an objective
reasonableness standard, but also that this deficiency prejudiced his defense. Strickland, 466
U.S. at 668, 687, 694. Citing relevant portions of the record below, the Magistrate Judge
concluded that the state court reasonably concluded that Petitioner’s claims failed under
Strickland—that is, the state court’s “findings and rulings” in application of Strickland, as clearly
established federal law, was not objectively unreasonable under § 2254(d) such that Petitioner’s
habeas petition should be granted. (ECF No. 33 at 22.)
B. The Court’s Review of Petitioner’s Objections
After a thorough review of the Report and the record in this case, this court determines
that Petitioner’s objections, as identified and discussed below, fail.
1. Procedural Bar of Ground 3 of Habeas Petition
Petitioner first objects to the Report by arguing that Petitioner failed to “conduct a sec.
2254(d)(2) review of this [directed verdict] claim.” Petitioner appears to object specifically to
the fact that the Report did not consider particular trial testimony “in pari materia since it is the
only evidence state has produced establishing a reasonable hypothesis supporting an inference of
guilt.” (ECF No. 36 at 6–7.)
Petitioner’s objection, however, is irrelevant—the failure to preserve the directed verdict
issue for appeal results in it being procedurally barred under state law. See, e.g., Whiteley v.
Warden, Wyo. State Penitentiary, 401 U.S. 560, 562 n.3 (1971); Ingram v. State of S.C., No. 977557, 1998 WL 726757, at *1 (4th Cir. Oct. 16, 1998); Josey v. Rushton, No. 00-547, 2001 WL
34085199, at *2 (D.S.C. Mar. 15, 2001). For this federal court to be appropriate in ignoring a
state procedural bar, Petitioner would need to demonstrate 1) cause for his failure to raise the
claim in the state courts, and 2) actual prejudice resulting from the failure. Wainwright v. Skykes,
433 U.S. 72 (1977). Alternatively, Petitioner would have to demonstrate that this court’s failure
to consider the claims, regardless of their procedural bar, would result in a “fundamental
miscarriage of justice.” Engle v. Isaac, 456 U.S. 107, 135 (1982) (“[W]e are confident that
victims of a fundamental miscarriage of justice will meet the cause-and-prejudice standard.”
(citing Wainwright, 433 U.S. at 91)). Since defendant fails to show either, the Magistrate Judge
was correct in deeming Ground 3 of Petitioner’s habeas claim procedurally barred, and
Petitioner’s objections are moot.
2. Juror Misconduct in Ground One and Ground Four of Habeas Petition
Petitioner next objects to the Magistrate Judge’s conclusions regarding the juror
misconduct habeas claims, stating verbatim:
Contrary to the state court and magistrate conclusions it is reasonable to conclude
that based on evidence obtained at my trial. These Jurors who expressed concern
about why me and co-defendant did not testify is enough to convene a hearing to
determine what kind of difference my testimony would have on verdict as court did
in State v. Bryant. See Barnes v. Joyner, 751 F.3d 229 (4th Cir. 2014)
(ECF No. 36 at 17.) Petitioner further cites Tanner v. United States, 485 U.S. 107 (1987)
for the proposition that “a jury verdict can be impeached to protect [his] due process
rights as well as to ensure Process was not fundamentally unfair.” (Id. at 16.) He argues
as part of his objection that a “sec. 2254(d)(2) analysis requires court look at facts both
lower court and magistrate did not.” (Id. at 18–19 (quoted verbatim).)
As an initial matter, Petitioner is correct that Tanner applies to his habeas claims
of juror misconduct. See Tanner, 485 U.S. at 120 (holding that an evidentiary hearing is
required where “extrinsic influence or relationships have tainted the [jury]
In this case, the record shows that prior to returning the verdict, the jury
had sent a note to the trial court asking, “Is it a possibility that the defendants go under
oath and tell their side of the story?”, to which the trial court answered in the negative
and further clarified that the jury was not to consider the fact that the defendants, one of
whom was Petitioner, did not testify.
(ECF No. 25-3 at 203, 205–06.) Upon the
rendering of the guilty verdict, the trial counsel further investigated the potential juror
misconduct, and she moved to set aside the guilty verdict based on her investigative
findings. (Id. at 348–50.) The PCR court made a number of findings regarding the
extent to which individual jurors considered the fact that Petitioner did not testify. (See
ECF No. 25-6 at 1–2.)
However, contrary to Petitioner’s objections as to what these PCR court findings
suggest, (See ECF No. 36 at 14–19), there simply is no evidence of the type of
“extraneous influence” on any of the jurors that Tanner forbids. See, e.g., United States
v. Rodriquez, 116 F.3d 1225, 1227 (8th Cir. 1997) (considering Tanner and stating: “That
[Defendant] did not testify is not a fact the jurors learned through outside contact,
communication, or publicity. It did not enter the jury room through an external,
prohibited route. It was part of the trial, and was part of the information each juror
collected. It should not have been discussed by the jury, and indeed was the subject of a
jury instruction to that effect. But it was not ‘extraneous information’”); Raley v. Ylst,
479 F.3d 792, 803 (9th Cir. 2006) (finding that a jury’s discussion of the defendant’s
decision not to testify is “part of the trial, not extrinsic to it”). Therefore, the Magistrate
Judge was correct in his conclusion, and Petitioner’s objections fail.
3. Ineffective Assistance of Counsel in Ground Two of Habeas Petition
Petitioner finally objects to the Magistrate Judge’s consideration of his ineffective
assistance of counsel claim for failing to move to sever his trial from his co-defendant’s trial.
(ECF No. 36 at 8–14.) He specifically argues that the Magistrate Judge did not consider that
“under sec. 2254(d)(2) if assuming arguendo [his] trial was severed from [co-defendant] would
statement [witness] say he made be admissible at [his] trial, and thus if evidence was unavailable
too Jury could they find me Guilty.” (ECF No. 36 at 9 (quoted verbatim).)
Under Strickland v. Washington, 466 U.S. 668, 687, 694 (1984), Petitioner needed to
have shown not only that counsel’s performance was deficient under an objective reasonableness
standard, but also that this deficiency prejudiced his defense. Applying Strickland, Petitioner
argues that his counsel’s “failure to sever trials was below objective standard of reasonableness,”
particularly given the information the trial counsel had in deciding not to do so. (Id. at 10–11.)
Petitioner further argues that under Strickland’s second requirement of a showing of prejudice,
the court should conclude that “not severing trials allowed evidence of [co-defendant]’s guilt too
spill-over to [him]. (Id. at 11–12.)
This court rejects Petitioner’s arguments. As the Report noted, (See ECF No. 33 at 20.),
Petitioner’s trial counsel articulated rational reasons for not moving to sever the trials, including,
among other reasons, the belief at the time of the trial that the co-defendants actually could
strengthen each other’s cases. (See ECF No. 25-3 at 357–59.) In light of this testimony and
Petitioner’s further failure to provide evidence supporting the assertion that a motion for
severance was required or even would have been granted, the PCR court’s conclusion that
Petitioner could not prove that his counsel was ineffective under Strickland was not
unreasonable. And as for Petitioner’s specific argument that prejudice under Strickland can be
demonstrated by the fact that his trial counsel sacrificed his right to cross-examine his codefendant, (ECF No. 36 at 13 (citing Bruton v. United States, 391 U.S. 123 (1968)).), this court
reiterates the Report’s apt clarification that Petitioner was not expressly implicated in his codefendant’s statement, as Bruton requires. See State v. Spears, 393 S.C. 466, 475–76 (“An
example of a specific trial right that may be prejudiced from a joint trial is the constitutional right
to cross-examination when one codefendant's confession expressly implicates another
codefendant but the confessor does not take the witness stand.” (citing Bruton, 391 U.S. at 135–
The Antiterrorism and Effective Death Penalty Act, as codified in 28 U.S.C. § 2254,
ultimately charges this court with determining whether that state court determination under
Strickland was reasonable.
And Petitioner simply fails to offer the “clear and convincing
evidence” in his habeas petition and objections to the Report to overcome the presumption that
the PCR court determination under Strickland was reasonable. 28 U.S.C. § 2254(e)(1). Indeed,
even with such evidence, it remains difficult for a federal court to establish that a state court’s
application of Strickland was unreasonable under § 2254(d); when both Strickland and § 2254(d)
apply, as in this case, federal review is “doubly” deferential. Harrington v. Richter, 562 U.S. 86,
105 (2011) (citing Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).
For the reasons set forth above, the court ADOPTS the Magistrate Judge’s Report and
Recommendation (ECF No. 20).
It is therefore ORDERED that Respondent's Motion for
Summary Judgment (ECF No. 10) is GRANTED and Petitioner's Petition for Writ of Habeas
Corpus (ECF No. 1) is DISMISSED without an evidentiary hearing.
CERTIFICATE OF APPEALABILITY
The law governing certificates of appealability 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 this 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, Petitioner has not met the legal standard for the
issuance of a certificate of appealability.
IT IS SO ORDERED.
United States District Judge
September 21, 2015
Columbia, South Carolina
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