United States District Court, D. South Carolina, Orangeburg Division
ORDER AND OPINION
Petitioner Montavis Gaines (“Petitioner”) filed this pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 alleging prosecutorial misconduct and ineffective assistance of counsel. (ECF No. 1). This matter is before the court on Petitioner’s Motion for Default Judgment (ECF No. 20) and Respondent’s Motion for Summary Judgment (ECF No. 22).
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02, the matter was referred to United States Magistrate Judge Kaymani West, for pre-trial handling. On February 3, 2016, the Magistrate Judge issued a Report and Recommendation (“Report”) recommending the court grant Respondent’s Motion for Summary Judgment, deny Petitioner’s Motion for Default Judgment, and deny the Petition. (ECF No. 42). This review considers Petitioner’s Motion in Opposition of Magistrate’s Report and Recommendation for Summary Judgment (“Objections”), filed February 25, 2016. (ECF No. 51), and Respondent’s Objection to Report and Recommendation (“Respondent’s Objection”), filed March 7, 2016 (ECF No. 53).
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. 42). The court will only recite herein facts pertinent to the analysis of Petitioner’s Objections.
Petitioner is currently incarcerated at the Turberville Correctional Institution within the South Carolina Department of Corrections (“SCDC”).
In November 2006, the Saluda County Grand Jury issued an indictment charging Petitioner with armed robbery, criminal conspiracy, and assault and battery with intent to kill. (ECF No. 42 at 2). A jury trial was held from July 24-26, 2007, before the Honorable William P. Keesley. (Id.). The jury found Petitioner guilty of armed robbery, criminal conspiracy, and the lesser-included offense of assault and battery of a high and aggravated nature (“ABHAN”). (Id.) Judge Keesley sentenced Petitioner to twenty-years imprisonment for the armed robbery conviction, five-years imprisonment for the criminal conspiracy conviction, and ten-years imprisonment for the ABHAN conviction, with all sentences running concurrently. (Id.). On July 21, 2008, 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 erred in allowing a police officer to testify that he recognized Petitioner in the videotape because the officer had contact with him in the past. (Id.) Petitioner also filed a pro se brief raising a number of issues regarding peremptory challenges and the identification of Petitioner by the officer. (Id. at 3). On October 2, 2009, the Court of Appeals affirmed Petitioner’s conviction and sentence in an unpublished opinion.
Subsequently, on November 6, 2009, Petitioner filed an Application for Post-Conviction Relief (“PCR”), which was dismissed on April 11, 2012, following an evidentiary hearing. (Id.). On April 24, 2012, Petitioner filed a motion to alter or amend the order of dismissal. (Id. at 7). The motion to alter or amend was denied on May 24, 2012. Petitioner, through counsel, timely filed a petition for writ of certiorari. On December 3, 2014, the South Carolina Court of Appeals denied the petition.
Prior to exhausting his state remedies in the initial PCR, Petitioner filed a second PCR on January 16, 2013. (Id. at 8). In the second PCR, Petitioner raised issues of prosecutorial misconduct and ineffective assistance of counsel. On February 6, 2014, Chief Administrative Judge Thomas Russo issued a Conditional Order of Dismissal finding that the second PCR was successive and untimely. (Id.) Petitioner filed an objection to the Conditional Order arguing that the State failed to provide information to Petitioner during his first PCR action. Petitioner attached a police incident report to the objection dated December 4, 2006, indicating that Officer Turner interviewed Jerome Rhoads-Petitioner’s co-defendant-who was “willing to testify for leniency from the State.” (Id. at 9). On September 12, 2014, a Final Order of Dismissal was entered whereby the court found that Petitioner had not established “a prima facie newly discovered evidence allegation to overcome the procedural bars regarding successive and untimely PCR actions.” (Id.) Subsequently, on September 18, 2014, Petitioner filed a notice of appeal, as well as a Motion to Consolidate Pursuant to Rule 214 S.C.A.C.R. (Id.) On October 3, 2014, the South Carolina Supreme Court dismissed Petitioner’s PCR appeal.
During the pendency of Petitioner’s second PCR action, Petitioner filed a Motion for Leave to File Rule 60(b) Motion with the South Carolina Supreme Court. In the motion, Petitioner, through appellate counsel, requested that the South Carolina Supreme Court set aside the Order of Dismissal in the first PCR action and grant Petitioner a new trial. (Id. at 10). On November 7, 2013, the South Carolina Supreme Court denied Petitioner’s motion. (Id.)
Petitioner filed the instant habeas Petition on December 10, 2014, alleging four grounds for relief: (1) prosecutorial misconduct for failing to disclose the details of a deal made between the state and Jerome Rhoads, who testified during Petitioner’s trial; (2) prosecutorial misconduct for providing perjured testimony during Petitioner’s first PCR hearing; (3) ineffective assistance of counsel for failing to object to testimony by police officers who gave identification testimony indicating that they were able to identify Petitioner by his mannerisms due to previous encounters with Petitioner; and (4) ineffective assistance of counsel for failing to discover the deal between the State and the co-defendant. (ECF No. 1 at 6-11). On March 30, 2015, Petitioner filed a Motion for Default Judgment. (ECF No. 20). That same day, Respondent filed a Motion for Summary Judgment and Return and Memorandum of Law in Support of Motion for Summary Judgment. (ECF Nos. 21, 22). On March 31, 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. 24). Petitioner filed a response in opposition on July 2, 2015. (ECF No. 37).
On February 3, 2016, the Magistrate Judge issued the Report recommending the court grant Respondent’s Motion, dismiss the Petition, and deny Petitioner’s Motion for Default Judgment. (ECF No. 42.) The Magistrate Judge found that to the extent that Grounds One and Four are procedurally barred, the Petitioner has established cause for failing to raise the claims in prior state actions. (Id. at 23). With respect to Ground One-prosecutorial misconduct for Brady Violation- the Magistrate Judge determined that although the incident report was favorable to Petitioner and the State withheld it, Petitioner cannot demonstrate prejudice in the result stemming from the suppression of the incident report. The Magistrate Judge found that based on the evidence presented against Petitioner, he cannot demonstrate that the result would be different even if the incident report had been disclosed and available to use to impeach Rhoads’ testimony. The Magistrate Judge also found that Petitioner’s trial counsel argued in his closing that the co-defendant was in plea negotiations with the State. Furthermore, the Magistrate Judge determined that the incident report only indicated that the officer spoke with the Solicitor’s office on Jerome Rhoads’ behalf, but it does not provide any detail that the Solicitor’s office and Rhoads entered into a deal. Thus, Petitioner was unable to demonstrate that a Brady violation occurred. Therefore, the Magistrate Judge determined that Ground One should be dismissed.
With respect to Ground Two-perjured prosecutor testimony during PCR hearing-the Magistrate Judge determined that the claim is not cognizable on federal habeas review. An error during a PCR proceeding is not a viable ground on which to grant federal habeas relief. Accordingly, the Magistrate Judge determined that Ground Two should be dismissed.
In Ground Three, Petitioner alleges that his counsel was ineffective for failing to object to the police officers’ testimony identifying Petitioner by his mannerisms, which the officers each indicated that they learned from previous encounters with Petitioner. Petitioner asserts that this testimony is improper “prior bad acts” testimony, which prejudiced him because it could be inferred that the previous encounters with the officers were of a criminal nature with Petitioner being the suspect. The PCR court determined that the officers’ testimony did not refer to any bad acts, and although trial counsel did not object, the objection would have likely been overruled because the testimony did not refer to any bad acts. The Magistrate Judge determined that neither of the police officers gave testimony that contained evidence of Petitioner’s prior bad acts. Accordingly, the Magistrate judge found that the PCR court appropriately applied the Strickland standard, and that Ground Three should be dismissed.
In Ground Four, Petitioner asserts that his trial counsel was ineffective for failing to discover the leniency deal reached between the State and Jerome Rhoads. The Magistrate Judge found that the incident report only indicates that Rhoads had preliminary discussions with Officer Turner regarding a lighter sentence should he testify. However, the Magistrate Judge noted that all the other evidence indicates that no firm plea agreement was reached until after Petitioner’s trial. Accordingly, the Magistrate Judge found that the PCR court did not ...