Flood v. Warden Lieber Correctional Institution
ORDER adopting Report and Recommendations of Magistrate Judge Bristow Marchant; granting 15 Motion for Summary Judgment. Certificate of appealability is denied. Signed by Honorable Bruce Howe Hendricks on 1/3/2017.(cwhi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Cedric Flood, #217089,
Warden, Lieber Corr. Inst.,
Civil Action No. 9:16-1877-BHH
This matter is before the Court on Petitioner Cedric Flood (“Flood” or “Petitioner”)
pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In accordance
with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), the matter was
referred to a United States Magistrate Judge for initial review. On September 19, 2016,
Magistrate Judge Bristow Marchant filed a Report and Recommendation (“Report”),
outlining the issues and recommending that the Court grant Respondent’s motion for
summary judgment and dismiss this action with prejudice. Petitioner filed objections to the
Report on September 29, 2016, and Respondent filed a reply on October 17, 2016.
Petitioner was indicted in Orangeburg County in February 2010 for kidnapping and
criminal sexual conduct, first degree. Douglas Mellard, Esq., and Mark Wise, Esq.,
represented Petitioner at trial. On July 21, 2011, the jury found Petitioner guilty of
kidnapping but acquitted him of criminal sexual conduct, first degree. Petitioner was
sentenced to life imprisonment pursuant to S.C. Code Ann. § 17-25-45, based on his prior
convictions from 1994 for kidnapping and criminal sexual conduct, second degree.
Petitioner filed a direct appeal and was represented by Susan Hackett, Esq., of the
South Carolina Commission on Indigent Defense, who raised the following issue:
Whether the trial court judge erred when he improperly coerced the jury into
rendering a guilty [verdict] after sending them back to deliberate a second
time, and having given them a second, coercive jury charge, after they
insisted they were deadlocked, in violation of S.C. Code § 14-7-1330 (1976)?
(ECF No. 14-4 at 75.)
On April 10, 2013, the South Carolina Court of Appeals affirmed Petitioner’s
conviction and sentence. State v. Flood, No. 2013-UP-140 (S.C. Ct. App. April 10, 2013).
The remittitur was issued on June 5, 2013.
On July 29, 2013, Petitioner filed an application for post-conviction relief (“PCR”).
Flood v. State of South Carolina, No. 2013-CP-38-875. In his PCR application, Petitioner
raised the following issues:
Ineffective Assistance of Counsel – Issue One
Trial counsel rendered the ineffective assistance of counsel in violation of
[Petitioner’s] rights guaranteed him by the Sixth and Fourteenth Amendments
to the United States Constitution, and Article 1, §§ 3 and 14 of the South
Carolina State Constitution for his failure to object to a coercive supplemental
charge being given to the jury, after the jury advised the trial judge that they
could not reach a unanimous decision on either charge, and after the trial
judge had given an Allen charge.
Ineffective Assistance of Counsel – Issue Two
Trial counsel rendered the ineffective assistance of counsel in violation of
[Petitioner’s] rights guaranteed by the Sixth and Fourteenth Amendments to
the United States Constitution, and Article I, § 3 and 14 of the South Carolina
State Constitution for failing to object to the trial judge not comporting with
South [Carolina] Code § 14-7-1330 (1976).
(ECF No. 14-3 at 177.) Jonathan D. Waller, Esq., represented Petitioner at an evidentiary
hearing held on May 27, 2014. In an order filed September 4, 2014 (and dated August 27,
2014), the PCR judge denied Petitioner’s PCR application.
Petitioner filed a timely appeal of the PCR court’s order, and he was represented by
Kathrine H. Hudgins, Esq., Appellate Defender of the Division of Appellate Defense, who
raised the following issue on appeal:
The PCR judge erred in refusing to find counsel ineffective for failing to move
for a mistrial pursuant to S.C. Code §§ 14-7-1330 when the jury indicated
they were deadlocked a second time after receiving an Allen charge, and
failing to object to the judge’s coercive second instruction to continue
(ECF No. 14-8 at 2.) The South Carolina Supreme Court denied certiorari on March 25,
2016, and the remittitur was filed on April 12, 2016.
Petitioner then filed the instant petition pursuant to § 2254 on June 9, 2016,
asserting the following claims:
GROUND ONE: The PCR court erred in finding that trial counsel was not
ineffective for failing to move for a mistrial pursuant to S.C. Code § 14-7-1330
when the jury indicated they were deadlocked a second time after receiving
an Allen [charge] thus depriving Petitioner of his 6 th and 14 th Amendment
[rights] to effective assistance of counsel and a fair trial.
GROUND TWO: The PCR court erred in finding that trial counsel was not
ineffective for failing to object to the trial judge’s coercive second instruction
to continue deliberations, thus, denying Petitioner his 6 th and 14 th
Amendment rights to effective assistance of counsel and a fair trial.
(ECF No. 1 at 7, 13.)
STANDARDS OF REVIEW
The Magistrate Judge’s Report
The Magistrate Judge makes only a recommendation to the Court.
recommendation has no presumptive weight, and the responsibility to make a final
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 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).
To grant a motion for summary judgment, this Court must find that “there is no
genuine issue as to any material fact.” Fed. R. Civ. P. 56(c). The Court is not to weigh the
evidence, but rather to determine if there is a genuine issue of fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). If no material factual disputes remain, then
summary judgment should be granted against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on
which the party bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
All evidence should be viewed in the light most favorable to the non-moving party. See
Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
Because Petitioner filed his petition after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), review of his claims is governed by 28
U.S.C. § 2254(d), as amended. Lindh v. Murphy, 521 U.S. 320 (1997); Breard v. Pruett,
134 F.3d 615 (4th Cir. 1998). Under the AEDPA, federal courts may not grant habeas
corpus relief unless the underlying state adjudication
(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).
In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court explained that §
2254(d)(1)’s “contrary to” and “unreasonable application” clauses have independent
meaning. Id. at 404-05. A federal habeas court may issue the writ under the “contrary to”
clause if the state court applies a rule different from the governing law set forth in
controlling cases, or if it decides a case differently than the Supreme Court has done on
a set of materially indistinguishable facts. Id. at 405-06. A federal habeas court may grant
relief under the “unreasonable application” clause if the state court correctly identifies the
governing legal principle from Supreme Court decisions but unreasonably applies it to the
facts of the particular case. Id. at 407-08. Factual determinations made by the state “shall
be presumed to be correct,” and “[t]he applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
Ineffective Assistance of Counsel
The Sixth Amendment requires that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his defense,” and that such
assistance be effective. U.S. Const. Amend. VI; Strickland v. Washington, 466 U.S. 668,
686 (1984). A meritorious ineffective assistance claim must demonstrate two things: first,
that counsel’s performance was deficient and, second, that counsel’s deficient performance
prejudiced the defense. Id. at 687-98. The first part of the test, a court’s evaluation of
counsel’s performance, must be “highly deferential” under this standard, so as not to
“second-guess” the performance. Id. at 689. “[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, under the circumstances, the
challenged action might be considered sound trial strategy.” Id. (internal quotation marks
and citation omitted); see also Fields v. Attorney Gen. of Maryland, 956 F.2d 1290, 1297-99
(4th Cir. 1992); Roach v. Martin, 757 F.2d 1463, 1476 (4th Cir. 1985). To establish
prejudice and thereby fulfill the second prong of the ineffective assistance test, the
challenging defendant must show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694-95.
The Magistrate Judge’s Report
In his Report, the Magistrate Judge first determined that Petitioner properly
exhausted his claims for relief. Next, the Magistrate Judge outlined the PCR court’s
findings on Petitioner’s claims. (See ECF No. 20 at 5-10.) The Magistrate Judge then
reviewed the state court’s findings under the deferential standard of review set forth in 28
U.S.C. § 2254(d) and ultimately determined that Petitioner failed to meet his burden of
showing that counsel was ineffective.
Specifically, with respect to ground one, where Petitioner alleges that counsel was
ineffective for failing to more for a mistrial pursuant to S.C. Code § 14-7-1330 when the jury
indicated it was deadlocked after receiving an Allen charge, the Magistrate Judge found no
error in the PCR court’s finding that counsel was not ineffective for failing to object to the
trial court’s instruction. The Magistrate Judge stated:
In this case, the record reflects that the jury did not voice any objections
when the trial judge sent them back to deliberate a second time.
Furthermore, the judge specifically reminded the jurors when he sent them
back to deliberate “to make that decision without compromising any of your
convictions or your beliefs.” In the trial court’s instruction, he did not speak
directly to the minority juror (who Petitioner apparently contends was in favor
of “not guilty” on all charges), but addressed the jury as a whole.
Accordingly, Petitioner has not shown that the State court’s determination
that the jury’s consent to continue deliberating was implied based upon the
record as a whole. Therefore, Petitioner has not shown that even if
Petitioner’s counsel had objected, that there was any basis for such objection
in light of Edwards. Further, to the extent Petitioner’s claim is that the state
court erred in finding that § 14-7-1330 had not been violated, that by itself is
not even a federal claim, as claims involving the application and interpretation
of a state statute are not cognizable in federal habeas actions absent a
showing of a federal constitutional violation. There has been no showing of
a federal constitutional violation in this case.
Counsel testified that although they and Petitioner specifically discussed
moving for a mistrial, they made a conscious decision not to make such a
motion because they all believed that the jury may have been more favorable
to the Petitioner than another jury might be. Indeed, Petitioner also testified
at his PCR hearing that he believed that the jury was favorable to him and
that he did not want to stop the trial, and in fact the jury did return a favorable
verdict for the Petitioner of not guilty on the CSC charge. Accordingly,
Petitioner has not carried his burden of showing a federal violation, or that his
counsel was ineffective for not objecting to the court’s second charge based
on the state statute or for failing to move for a mistrial.
(ECF No. 20 at 13-14 (internal citations omitted).) Accordingly, the Magistrate Judge
determined that ground one is without merit.
Next, with respect to ground two, where Petitioner contends that trial counsel was
ineffective for failing to object to the trial judge’s “coercive” second instruction, the
Magistrate Judge reviewed the PCR court’s findings and determined that Petitioner failed
to carry his burden of showing that counsel was ineffective. The Magistrate Judge stated:
In this case, the record reflects that the jury began deliberations at 4:25 p.m.
on July 20, 2011. After receiving a question from the jury (approximately 30
minutes after they were charged) regarding the definition of kidnapping and
criminal sexual conduct and apparently a desire to see a chart used by
counsel, the trial court informed the jury that the chart was not evidence, but
that he could recharge them on the definitions of kidnapping and criminal
sexual conduct, which he did. The jury then later asked to get a transcript of
the victim’s testimony. The trial court told counsel that there was no copy of
the transcript and that the only alternative was to replay the victim’s
testimony for the jury. After the Court discussed the matter with counsel and
Petitioner’s counsel objected to the victim’s testimony being replayed, the
Court excused the jury for the night at approximately 9:30 p.m. In the
morning, the Court addressed and overruled defense counsels’ objection
about playing the victim’s testimony for the jury and questioned the jury as
to whether they had heard or seen certain media coverage, which they
affirmed that they had not. The Court then played the victim’s testimony
again for the jury and they returned to the jury room to further deliberate.
The jury later sent a note stating that they could not come to a unanimous
decision on either charge. The Court stated that they probably had not had
enough time so he brought them out and gave them an Allen charge. During
this Allen charge, the trial court charged them not to “give up your firmly held
beliefs merely to be in agreement with your fellow jurors. The majority should
consider the minority’s position, and the minority should consider the
majority’s position.” Subsequently, the jury sent out the two notes previously
discussed, indicating that they had not been able to reach a unanimous
decision. Both notes basically stated the same thing: “We have a juror that
has said for the past two days of deliberation that he will ‘never’ change his
mind.” It is at that point that the trial judge gave the charge at issue. After
receiving that charge at approximately 2:50 p.m. on July 21, 2011, the jury
returned to the jury room, deliberated, and returned a verdict at 5:00 p.m.
Therefore, viewing the totality of the charge, the judge specifically told the
jurors in the first Allen charge not to give up their firmly held beliefs merely
to be in agreement with their fellow jurors and asked the majority to consider
the minority’s position as well as vice versa. When the jury was sent out
again, the trial judge discussed how everyone had worked on the case, that
he knew they were being asked to make a very hard decision, and again
asked them all to try and make a decision “without compromising any of your
convictions or your beliefs.” He also referenced that it was early in the day,
apologized to them and asked them to treat it as a work day, but with no
threat that they would not be released if they could not make a decision.
Then, the trial court asked them “to return to your deliberations and bring
back a fair, just and impartial verdict. Okay? Thank y’all very much.”
Despite the acknowledged outspokenness of the jury in this case, there was
no objection from any of the jurors to returning to further deliberate.
Furthermore, the Judge did not speak solely to the minority juror, but
addressed the jury as a whole, and all of the jurors at the end of the trial
stated and affirmed in open court that the verdict they returned was their
(ECF No. 20 at 16-18.)
Ultimately, the Magistrate Judge found no error in the state court’s finding that the
record does not reflect an unduly coercive charge. The Magistrate Judge also found no
error in the state court’s finding that counsel’s decision not to object to the second charge
was a tactical and strategic choice made after due consideration and consultation with
Petitioner, such that Petitioner failed to establish that counsel rendered constitutionally
deficient assistance. As such, the Magistrate Judge determined that ground two is without
In his objections, Petitioner does not object to the Magistrate Judge’s recitation of
the procedural background and history of this case; however, he does object to the
Magistrate Judge’s recommendation that the Court grant summary judgment in favor of
Respondent on his claims. Specifically, Petitioner contends the Magistrate Judge erred in
concluding that Petitioner failed to meet his burden of showing that trial counsel was
ineffective for failing to move for a mistrial after the trial court gave the jury a second Allen
charge and for failing to object to the trial judge’s “coercive” second instruction.
After a de novo review of the portions of the Magistrate Judge’s Report to which
Petitioner objects, the Court finds Petitioner’s objections wholly without merit. Although
Petitioner disagrees with the Magistrate Judge’s findings, he points to no legal or factual
error sufficient to alter the outcome of this matter, and this Court agrees with the Magistrate
Judge’s findings and conclusions. Specifically, the Court completely agrees with the
Magistrate Judge that Petitioner has failed to show that the PCR court’s findings on
Petitioner’s claims of ineffective assistance resulted in a decision that 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 other words,
the Court agrees with the Magistrate Judge that Petitioner has not shown that counsel’s
performance was deficient for failing to move for a mistrial after the trial court gave the jury
a second Allen charge or for failing to object to the trial court’s allegedly “coercive” second
instruction. In addition, despite Petitioner’s conclusory allegation that he suffered prejudice
due to his counsel’s performance, and his equally unsupported allegation that there is a
reasonable probability that he would have prevailed on appeal had counsel objected, the
Court finds that Petitioner has failed to establish prejudice. As the Magistrate Judge noted:
Although Petitioner now speculates that if counsel had objected to the jury
charge, that would have affected the outcome of the case and he could have
received a more favorable result, this conclusory and wholly unsupported
contention is insufficient to show his counsel was ineffective. The record
does not reflect an unduly coercive charge under Tucker, and the decision
not to object to the second charge was a tactical and strategic choice made
by counsel after due consideration and consultation with the Petitioner.
(ECF No. 20 at 18-19.) Accordingly, the Court agrees with the Magistrate Judge that
Respondent is entitled to summary judgment on Petitioner’s claims.
Based on the foregoing, the Court adopts and incorporates herein by specific
reference the Magistrate Judge’s Report (ECF No. 20), and the Court grants Respondent’s
motion for summary judgment (ECF No. 15).
AND IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
January 3, 2017
Charleston, South Carolina
CERTIFICATE OF APPEALABILITY
The governing law provides:
(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). Here, the Court finds that the legal
standard for the issuance of a certificate of appealability has not been met. Therefore, a
certificate of appealability is denied.
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