United States District Court, D. South Carolina, Aiken Division
Keith A. Sims, #314569, Petitioner,
Robert Stevenson, Warden, Broad River Correctional Institution, Respondent.
ORDER AND OPINION
Petitioner Keith Sims (“Petitioner”) filed this pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 alleging ineffective assistance of counsel, defective indictment, and lack of subject matter jurisdiction. (ECF No. 1). This matter is before the court on Respondent’s Motion for Summary Judgment (ECF No. 17) and Petitioner’s Motion to Amend Petition for Writ of Habeas Corpus (ECF No. 21).
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to United States Magistrate Judge Shiva Hodges, for pre-trial handling. On November 30, 2015, the Magistrate Judge issued a Report and Recommendation (“Report”) recommending the court grant Respondent’s Motion for Summary Judgment and deny the Petition. (ECF No. 40). This review considers Petitioner’s Objections to Report and Recommendation (“Objections”), filed February 12, 2016. (ECF No. 49).
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
The court concludes upon its own careful review of the record that the factual and procedural summation in the Magistrate Judge’s Report is accurate, and the court adopts this summary as its own. (See ECF No. 40). The court will only recite herein facts pertinent to the analysis of Petitioner’s Objections.
Petitioner is currently incarcerated at the Broad River Correctional Institution within the South Carolina Department of Corrections (“SCDC”).
In February 2004, the Richland County Grand Jury issued an indictment charging Petitioner with murder. (ECF No. 40 at 3). A jury trial was held on March 20-24, 2006, before the Honorable G. Thomas Cooper, Jr. (Id.). The jury found Petitioner guilty as charged, and Petitioner was sentenced to 40 years imprisonment. (Id.) On October 22, 2007, Petitioner, represented by appellate counsel, filed a direct appeal of his conviction and sentence in the South Carolina Court of Appeals raising only one issue: whether the trial judge committed reversible error by allowing a State’s witness to testify that a third party told her Petitioner “murdered somebody.” (Id.) On April 17, 2008, the Court of Appeals filed a decision affirming the conviction. Subsequently, on May 22, 2008, the Court of Appeals denied Petitioner’s request for rehearing. (Id. at 4). On August 12, 2008, Petitioner filed a petition for writ of certiorari. The South Carolina Supreme Court granted certiorari on March 19, 2009. The Supreme Court issued an order on May 17, 2010, affirming in result the Court of Appeals decision affirming Petitioner’s conviction. (Id.)
Subsequently, on March 21, 2011, Petitioner filed an Application for Post-Conviction Relief (“PCR”), which was dismissed on October 18, 2012, following an evidentiary hearing. (Id.). On November 15, 2012, Petitioner filed a motion to alter or amend the order of dismissal. (Id. at 5). The motion to alter or amend was denied on February 13, 2013. Petitioner, through counsel, timely filed a Johnsonpetition for writ of certiorari. Petitioner also filed a pro se brief on November 14, 2013, raising additional issues. (Id.) On September 11, 2014, the South Carolina Supreme Court issued an order denying the petition and relieving counsel of the duty to represent Petitioner. (Id. at 6)
Petitioner filed the instant habeas Petition on December 9, 2014, alleging nine grounds for relief: (1) due process violation and ineffective assistance of counsel for allowing a state’s witness to testify to a non-testifying third party’s hearsay statement; (2) due process violation and ineffective assistance of counsel for Petitioner being constitutionally deprived of the ability to put forth a complete defense; (3) ineffective assistance of counsel for failing to object to the State’s closing argument which evaluated the credibility of witnesses against the defendant; (4) defective indictment and prosecutorial misconduct; (5) ineffective assistance of counsel for failing to object to admission of irrelevant evidence and failure to move for a mistrial after evidence was disallowed; (6) ineffective assistance of counsel for failing to object to a burden shifting jury instruction; (7) ineffective assistance of counsel for failing to object to testimony on Petitioner’s invocation of his constitutional rights; (8) ineffective assistance of counsel for failing to move to dismiss the case for lack of subject matter jurisdiction and personal jurisdiction; and (9) ineffective assistance of post-conviction relief counsel for failure to pursue certain claims. (ECF No. 1 at 6-11, 16-20). Respondent filed a Motion for Summary Judgment and Return and Memorandum of Law in Support of Motion for Summary Judgment on April 20, 2015. (ECF Nos. 17, 18). On August 12, 2015, the court entered an order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the summary judgment procedures and the time period for filing a response. (ECF No. 30). Petitioner filed a response in opposition on August 12, 2015. (ECF No. 39).
On November 30, 2015, the Magistrate Judge issued the Report recommending the court grant Respondent’s Motion, dismiss the Petition, and deny Petitioner’s Motion to Amend. (ECF No. 40.) The Magistrate Judge found that Grounds One, Two, and Eight are procedurally barred because Petitioner failed to raise them properly throughout earlier stages of review. (Id. at 17). Specifically, the Magistrate Judge found that Grounds One and Two are challenges to evidentiary rulings by the trial court, and because Petitioner failed to raise them on direct appeal, they are procedurally barred from federal habeas review. Alternatively, the Magistrate Judge found that Grounds One and Two are procedurally barred because they address state law issues. The Magistrate Judge also found that Ground Eight is procedurally barred because Petitioner did not raise it in his PCR appeal. (Id. at 18). The Magistrate Judge determined that Petitioner could not demonstrate prejudice for the default or that a miscarriage of justice would result from the court’s failure to review Petitioner’s procedurally defaulted claims. (Id. at 19-20).
With respect to Ground Three-ineffective assistance of counsel for failing to object to the solicitor’s closing argument-the Magistrate Judge determined that Petitioner cannot demonstrate that the PCR court unreasonably misapplied the law in rejecting Petitioner’s claims for ineffective assistance of counsel. Further, the Magistrate Judge determined that in light of the weight of the evidence and the extent of the solicitor’s comments, the comments made by the solicitor did not render Petitioner’s trial fundamentally unfair. Additionally, the Magistrate Judge noted that Petitioner has failed to establish that there is a reasonable probability that the result of the proceeding would have been different if trial counsel objected. (Id. at 23). Thus, the Magistrate Judge found that Petitioner failed to carry his burden to demonstrate that the PCR court misapplied the law regarding ineffective assistance of counsel.
In Ground Four, Petitioner alleges that his indictment was defective because the grand jury did not meet during the term of court stamped on the indictment. The Magistrate Judge determined that state indictments and state court subject matter jurisdiction are not cognizable on federal review. (Id.) Thus, the Magistrate Judge recommends that this court grant summary judgment in favor of Respondent as to Ground Four. (Id. at 24).
In Ground Five, Petitioner asserts that his trial counsel was ineffective for failing to object to the trial court’s admission of irrelevant evidence and for failing to move for a mistrial once the evidence was disallowed. The Magistrate Judge’s review of the record indicates that trial counsel testified that she objected when the solicitor introduced the ammunition into evidence, but the evidence was admitted over her objection. (Id. at 24). Further, the Magistrate Judge agreed with the PCR court’s determination that trial counsel’s failure to request a curative instruction or move for a mistrial was not objectively unreasonable. (Id. at 26). The Magistrate Judge determined that the Petitioner cannot carry his burden to demonstrate that the PCR court unreasonably applied federal law in deciding his ineffective assistance of counsel claim. (Id. at 26).
In Ground Six, Petitioner alleges that his counsel was ineffective for failing to object to a burden shifting jury instruction that allowed the jury to infer malice from the use of a deadly weapon. (Id. at 27). The PCR court determined that the charge was appropriate based on the law in place at the time of Petitioner’s trial. (Id. at 28). The Magistrate Judge agreed, and determined that Petitioner cannot show that the PCR court’s analysis of the issue misapplied clearly established federal law. (Id. at 29).
With respect to Ground Seven-ineffective assistance of counsel for failing to object to testimony on Petitioner’s invocation of his constitutional rights-the Magistrate Judge found that the PCR court did not unreasonably apply federal law. The PCR court found that trial counsel’s decision not to object to witness testimony indicating Petitioner asked for a lawyer was a reasonable trial strategy because it “bolstered Petitioner’s defense theory that he was traumatized and shot the victim out of fear for his life.” (Id. at 31). The Magistrate Judge determined that courts must be wary of second guessing trial counsel’s tactics where counsel articulates a valid reason for employing the strategy and the conduct is not objectively reasonable under the circumstances. (Id.) Accordingly, ...