United States District Court, D. South Carolina, Orangeburg Division
Timothy M. Cain United States District Judge
Santiago Rios, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02, D.S.C., this matter was referred to a magistrate judge for pretrial handling. Before the court is the magistrate judge’s Report and Recommendation (“Report”), recommending that Respondent’s motion for summary judgment (ECF No. 141) be granted, and Rios’s petition be denied. (ECF No. 24). Rios filed timely objections. (ECF No. 26). He also filed a motion for an extension of time to file his objections. (ECF No. 28).
The Report has no presumptive weight and the responsibility to make a final determination in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In that case, the court reviews the Report only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
Rios objects to three portions of the Report. (ECF No. 26). In his first objection, Rios claims that the magistrate judge erred by recommending the court to find that he procedurally defaulted on grounds two and three of his petition. (ECF No. 26 at 3-4). Grounds two and three allege that the trial court committed error by failing to instruct the jury on involuntary manslaughter and self-defense. (ECF No. 1 at 2). The magistrate judge recommended finding grounds two and three procedurally defaulted because the South Carolina Court of Appeals decided these grounds under independent and adequate state procedural rules. (ECF No. 24 at 14). Rios claims that the magistrate judge erred by failing to consider cause and prejudice under the standard set forth in Martinez v. Ryan, 132 S.Ct. 1309 (2012). (ECF No. 26 at 3).
The Court in Martinez carved out a narrow exception to the procedural-default rule by providing that the procedural-default doctrine “will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” Id. at 1320. Grounds two and three assert that the trial court committed error by declining to instruct the jury on involuntary manslaughter and self-defense. (ECF No. 1 at 7-9). These grounds do not fall within the purview of the Martinez exception because they are not based on ineffective assistance of counsel by his trial counsel or his PCR counsel.
“Federal habeas review of a state prisoner's claims that are procedurally defaulted under independent and adequate state procedural rules is barred unless the prisoner can show cause for the default and demonstrate actual prejudice as a result of the alleged violation of federal law, or prove that failure to consider the claims will result in a fundamental miscarriage of justice.” Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008) (quoting McCarver v. Lee, 221 F.3d 583, 588 (4th Cir. 2000)). To establish cause to present grounds two and three in his habeas petition, Rios had to “show that some objective factor external to the defense impeded counsel’s efforts to comply with” the contemporaneous objection rule. Richmond v. Polk, 375 F.3d 309, 324 (4th Cir. 2004) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). To show a fundamental miscarriage of justice, Rios had to introduce evidence showing that he was “‘actually innocent’ of the substantive offense.” Id. (quoting Dretke v. Haley, 541 U.S. 386, 393 (2004)). The court finds that Rios has failed to meet his burden in showing cause and actual prejudice or that he is “actually innocent” of the underlying offense.
In his second objection, Rios contends that the magistrate judge erred in recommending the court to find that he was not prejudiced by his trial counsel’s failure to preserve a jury instruction on self-defense. The court finds that Rios has failed to meet his burden to show that there is a “reasonable likelihood of a more favorable outcome on appeal had the claim been preserved.” Davis v. Sec’y for Dep’t of Corrs., 341 F.3d 1310, 1316 (11th Cir. 2003). Under South Carolina law, a “self-defense charge is not required unless it is supported by the evidence.” State v. Light, 664 S.E.2d 465, 469 (S.C. 2008) (citation omitted).
To establish self-defense in South Carolina, four elements must be present: (1) the defendant must be without fault in bringing on the difficulty; (2) the defendant must have been in actual imminent danger of losing his life or sustaining serious bodily injury, or he must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury; (3) if his defense is based upon his belief of imminent danger, the defendant must show that a reasonably prudent person of ordinary firmness and courage would have entertained the belief that he was actually in imminent danger and that the circumstances were such as would warrant a person of ordinary prudence, firmness, and courage to strike the fatal blow in order to save himself from serious bodily harm or the loss of his life; and (4) the defendant had no other probable means of avoiding the danger.
Id. (citation omitted).
Rios, who did not testify at his trial, provided two different accounts about how his wife was shot and killed. (ECF No. 13-4 at 2). In his first statement, Rios claimed that three people broke into his house and killed his wife. (ECF No. 13-4 at 2). Under this factual scenario, Rios is not entitled to a self-defense jury instruction because Rios did not kill his wife.
In his second statement provided to police, Rios changed his story. He stated that the altercation with his wife began when she would only serve him his uneaten lunch for dinner instead of turkey on Thanksgiving. (ECF No. 24 at 21). Rios ended up shoving his wife. (ECF No. 24 at 21). She pushed him back and went into the bedroom to pack her belongings to leave him. (ECF No. 24 at 21). Rios followed her into the bedroom, where he claims that she attacked him. (ECF No. 24 at 21-22). At some point, she grabbed a gun. (ECF No. 24 at 22). Rios claims that a struggle ensued for the gun, during which his wife had her finger on the trigger and he had his hand on the barrel of the gun. (ECF No. 13 at 28). The gun was fired, killing his wife. (ECF No. 13 at 28). In his statement, he says that he acted in self-defense. (ECF No. 13 at 28).
As to his second version of what occurred, Rios has failed to show a reasonable likelihood of reversal for two reasons. First, the evidence of the case shows that Rios was the initial provocateur of the situation. Under South Carolina law,
[O]ne who provokes or initiates an assault cannot escape criminal liability by invoking self defense . . . Any act of the accused in violation of law and reasonably calculated to produce the occasion amounts to bringing on the difficulty and bars his right to assert self-defense as a justification or excuse for a homicide.
State v. Bryant, 520 S.E.2d 319, 322 (S.C. 1999) (citations and internal quotation marks omitted). “[I]f, after commencing the assault, the aggressor withdraws in good faith from the conflict and announces in some way to his adversary his intention to retire, he is restored to his right of self defense . . . .” Id. (quoting Ferdinand S. Tinio, Comment Note: Withdrawal, AfterProvocation of Conflict, As Reviving Right Of Self-Defense, 55 A.L.R.3d 1000, 1003 (1974)). Rios was the initial aggressor and he did not “withdraw from the conflict and communicate his withdrawal by word or act to his ...