United States District Court, D. South Carolina, Charleston Division
Richard Mark Gergel United States District Court Judge
This matter is before the Court on the Report and Recommendation ("R. & R.") of the Magistrate Judge, recommending that the Court grant the Petitioner's writ of habeas corpus on the basis of Ground Two of the petition. (Dkt. No. 98.) After a careful review of the voluminous record in this matter, the decisions of the state courts, the briefs of the parties, and the relevant case law, the Court grants the Petitioner's writ of habeas corpus separately and independently on the bases of Grounds One and Two of the petition, setting aside the sentence of death and returning the matter to the Lexington County Court of General Sessions for resentencing within 180 days of this order. This decision is based upon the Court's strong conviction that the injection of race by the prosecutor into the sentencing phase of the trial and the seating of a racially biased juror "so infected the proceeding as to deny [Petitioner] due process of law." Miller v. United States, 583 F.2d 701, 707 (4th Cir. 1978).
Petitioner was indicted by the Lexington County Grand Jury in September 1993 for murder, kidnapping, armed robbery, and larceny. The State served notice of intent to seek the death penalty and notice of evidence in aggravation. The State's evidence at trial included testimony that Petitioner's victim had been stabbed more than 70 times with a Phillips-head screwdriver and had died as a result of internal bleeding. State v. Bennett, 493 S.E.2d 845, 846 (S.C. 1991) ("Bennett /'). After an October 9-18, 1995 trial, Petitioner was convicted on all charges. After a separate penalty proceeding, Petitioner was sentenced to death for murder. On December 1, 1997, the South Carolina Supreme Court affirmed Petitioner's criminal convictions, reversed Petitioner's death sentence, and remanded the case to the trial court for a new sentencing proceeding. The South Carolina Supreme Court's decision in Bennett I was based on the determination that the trial court had improperly allowed a juror to be qualified after he stated that he would "go with the majority of the jury" if he had doubts "as to whether the defendant should get the death penalty." Under those circumstances, the South Carolina Supreme Court concluded that Petitioner was "denied an independent decision as to his punishment." Bennett I, 493 S.E.2d at 847-48.
A second sentencing proceeding was conducted in the Lexington County Court of General Sessions on July 10-16, 2000, with Eleventh Circuit Solicitor Donald V. Myers again seeking the death penalty. Notably, the jury in the second sentencing proceeding was all-white, which had not been the case in the Petitioner's first sentencing proceeding. Both Petitioner and his victim were African-American. Unlike the first sentencing proceeding, the second sentencing proceeding involved repeated direct and indirect references to race made or elicited by Solicitor Myers and vigorous objections by defense counsel, who argued that the prosecutor was intentionally injecting race into the trial.
The first of these racial issues involved testimony elicited by the Solicitor from a witness who had been attacked and beaten by Petitioner in an incident that predated the murder for which Petitioner was then on trial. After the witness, Shannon Gilbert, who was white, testified that he had been attacked by Petitioner and was in a coma for approximately two weeks following the assault, the Solicitor asked him whether he had "any dreams or anything" while in a coma. Defense counsel immediately objected, arguing that he could not imagine how such testimony would be relevant. The Solicitor responded, "[h]e'll bring out the relevance." The witness then recounted his dream of "Indians were chasing me trying to kill me, and the thing I thought was they were black." (Dkt. No. 25-9 at 50-51.) Defense counsel again objected to the testimony and later moved for a mistrial. (Id. at 51, 63-64.) He observed that this type of racial reference had not occurred in the first trial where "we had a couple black jurors" but now with an all-white jury the prosecutor was "hit[ting] this jury with race, race, race." (Id. at 63.) Defense counsel argued that "there was no relevance" to the prior victim's dream testimony "except to inflame a white jury" and called the Solicitor's actions "a gross violation of this man's rights." (Id. at 63.) The state trial court denied defense counsel's motions regarding the "black Indian" dream testimony, erroneously finding that the State had not elicited the testimony. (Dkt. No. 25-13 at 185.)
The Solicitor further offered testimony that Petitioner had engaged in sexual relations with a female prison guard while incarcerated awaiting trial to support his argument that Petitioner continued to be engaged in misconduct after his crimes. Initially, the Solicitor did not introduce evidence regarding the race of the guard. However, while cross-examining a character witness for Petitioner, a fellow inmate, the Solicitor asked the witness about the relationship between the Petitioner and the female prison guard. The witness asked whether he was referring to "[t]he real big lady, " and the Solicitor responded, "[guard's name], you remember her, the blond-headed lady." (Dkt. No. 25-11 at 500-501.) Defense counsel promptly moved for a mistrial, arguing that the Solicitor had again intentionally injected race into the proceeding in front of an all-white jury by alerting the jury that the Petitioner's lover was a white woman. Calling the Solicitor's conduct "one of the most despicable performances I've ever seen a Solicitor where a Solicitor inserted race into this case, " defense counsel urged the court to declare a mistrial. (Dkt. No. 25-12 at 35-36.) The Solicitor argued that a reference to a blond-headed woman did not necessarily equate to a white women, in which defense counsel responded "[d]id anybody in this courtroom not think he was telling them that was a white woman. I think it is clear and I think the record will be clear on that." (Id. at 37.) The trial court again overruled defense counsel's motion, observing "maybe I'm just overly na'i've, but I'll be honest, maybe it just the way things are these days, but when somebody says blonde, I don't necessarily see a white woman." (Id. at 38.)
During closing argument, Solicitor Myers made repeated references to Petitioner's size (6' 7", 300 pounds) and his potential dangerousness because of his violent nature. (Dkt. No. 25-12 at 102.) Responding to the defense's evidence that Petitioner had been a compliant prisoner, the Solicitor argued that if "[i]f you give him life, the real Johnny will come back. You give him life and he'll come back out. Meeting him again will be like meeting King Kong on a bad day." (Id.). The Solicitor also referred to the Petitioner as a "monster, " a "caveman" and a "beast of burden" during his closing argument. (Id. at 85, 91, 103.) Defense counsel did not make an objection at the time of the Solicitor's argument but later moved for a mistrial because the King Kong reference was an appeal to racial prejudice. The trial court rejected the argument, finding that the "comment did not infect the trial with unfairness, did not prejudice the Defendant, and was not a denial of due process or fundamental fairness." (Dkt. No. 25-13 at 189.)
The jury in the second sentencing proceeding found the existence of four statutory aggravating factors, and Petitioner was again sentenced to death. On June 26, 2006, the South Carolina Supreme Court affirmed the death sentence. State v. Bennett, 632 S.E.2d 281 (S.C. 2006) (''Bennett IF). The United States Supreme Court denied certiorari on November 27, 2006. Bennett v. South Carolina, 549 U.S. 1061 (2006).
On September 7, 2006, Petitioner filed an application for post-conviction relief ("PCR"). During a 2007 interview, PCR counsel asked a juror in the second sentencing jury (identified herein as the "Juror"), "why did you think Mr. Bennett had killed the victim?" The Juror responded, "because he was just a dumb nigger." (Dkt. No. 25-16 at 18.) Testifying at the May 28, 2008 PCR evidentiary hearing, the Juror admitted that he made that statement. The Juror further testified, "I apologize for saying that word, but after going through that thing for an entire week and all the evidence piling up against him, that was just the way I felt about it." (Id. at 18-19.) On cross-examination by the State, the Juror testified that he was not prejudiced and Petitioner's race played no part in his decision imposing death. (Id. at 24.) The PCR trial court found that the Juror's expressed bias did not justify relief because it only came into existence sometime after the sentencing hearing and because it did not establish that the Juror "was racially biased at the time of the resentencing trial." (Dkt. No. 25-19 at 76.) Petitioner filed a motion to alter or amend the PCR court's judgment, which was denied by an order filed October 8, 2009, and a petition for a writ of certiorari with the South Carolina Supreme Court, which was denied on November 7, 2013 (remittitur issued November 25, 2013).
Petitioner then timely filed the present petition on November 3, 2014. Petitioner raises seven grounds for relief: (1) Petitioner's second sentencing proceeding was rendered fundamentally unfair by the Solicitor's repeated racial comments, (2) Petitioner's right to an impartial jury was violated by the seating of a juror who later testified that he voted to convict Petitioner because he was "just a dumb nigger, " (3) Petitioner's defense counsel at the second sentencing hearing was constitutionally ineffective in failing to challenge the State's purportedly race-based decision to seek the death penalty, (4) Petitioner's defense counsel was constitutionally ineffective for failing to voir dire veniremen on their racial biases, (5) Petitioner's defense counsel was constitutionally ineffective for failing to object to several jury instructions and statements by the Solicitor, (6) Petitioner's appellate counsel for his direct appeal from his second sentencing proceeding was constitutionally ineffective for failure to challenge the State's introduction of extrinsic evidence of a twelve-year-old cross-racial assault, and (7) Petitioner's Sixth Amendment rights were violated by denial of access to potential impeachment material on the State's witnesses.
Respondents moved for summary judgment on all asserted grounds for relief on January 23, 2015, and Petitioner moved for summary judgment on Ground One and Ground Two of the petition on March 16, 2015. (Dkt. Nos. 60, 67.) On January 11, 2016, the Magistrate Judge issued a Report and Recommendation recommending that the petition be granted as to Ground Two, regarding the allegedly racially biased juror, and denied as to all other asserted grounds for relief. (Dkt. No. 98.)
II. Legal Standard
A. Report and Recommendation of the Magistrate Judge
The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of those portions of the Report and Recommendation to which specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge. 28 U.S.C. § 636(b)(1).
When a proper objection is made to a particular issue, "a district court is required to consider all arguments directed to that issue, regardless of whether they were raised before the magistrate." United States v. George, 971 F.2d 1113, 1118 (4th Cir. 1992). However, "[t]he district court's decision whether to consider additional evidence is committed to its discretion, and any refusal will be reviewed for abuse." Doe v. Chao, 306 F.3d 170, 183 & n.9 (4th Cir. 2002). "[Attempts to introduce new evidence after the magistrate judge has acted are disfavored, " though the district court may allow it "when a party offers sufficient reasons for so doing." Caldwell v. Jackson, 831 F.Supp.2d 911, 914 (M.D. N.C. 2010) (listing cases).
B. Summary Judgment
Summary judgment is appropriate if a party "shows that there is no genuine dispute as to any material fact" and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In other words, summary judgment should be granted "only when it is clear that there is no dispute concerning either the facts of the controversy or the inferences to be drawn from those facts." Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). "In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities in favor of the nonmoving party." Health South Rehab. Hosp. v. Am.
Nat'l Red Cross, 101 F.3d 1005, 1008 (4th Cir. 1996). The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323(1986).
Once the moving party has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. Under this standard, "[c]onclusory or speculative allegations do not suffice, nor does a 'mere scintilla of evidence'" in support of the non-moving party's case. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002) (quoting Phillips v. CSX Transp., Inc., 190 F.3d 285, 287 (4th Cir. 1999)).
C. Habeas Corpus
1. Standard for Relief
Claims adjudicated on the merits in a state court proceeding cannot be a basis for federal habeas corpus relief unless the decision was "contrary to, or involved an unreasonable application of clearly established federal law as decided by the Supreme Court of the United States, " or the decision "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)(1), (2). Section 2254(d) codifies the view that habeas corpus is a '"guard against extreme malfunctions in the state criminal justice systems, ' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Id. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (stating that '"[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement'" (quoting Harrington, 562 U.S. at 103)).
Therefore, when reviewing a state court's application of federal law, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams v. Taylor, 529 U.S. 362, 410 (2000); see also White, 134 S.Ct. at 1702 (describing an "unreasonable application" as "objectively unreasonable, not merely wrong" and providing that "even clear error will not suffice" (internal quotation marks and citation omitted)). Moreover, review of a state court decision does not require an opinion from the state court explaining its reasoning. See Harrington at 98 (finding that "[t]here is no text in [§ 2254] requiring a statement of reasons" by the state court). If no explanation accompanies the state court's decision, a federal habeas petitioner must show that there was no reasonable basis for the state court to deny relief. Id. Pursuant to § 2254(d), a federal habeas court must (1) determine what arguments or theories supported or could have supported the state court's decision; and then (2) ask whether it is possible that fairminded jurists could disagree that those arguments or theories are inconsistent with the holding of a prior decision of the United States Supreme Court. Id. at 102. And state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
2. Procedural Default
A habeas corpus petitioner may obtain relief in federal court only after he has exhausted his state court remedies. 28 U.S.C. § 2254(b)(1)(A). "To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court." Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011);
see also In re Exhaustion of State Remedies in Criminal & Post-Conviction
Relief Cases, 471 S.E.2d 454, 454 (S.C. 1990) (holding that "when the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies"). To exhaust his available state court remedies, a petitioner must "fairly present to the state court both the operative facts and the controlling legal principles associated with each claim." Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (internal quotation marks and citation omitted).
Generally, a federal habeas court should not review the merits of claims procedurally defaulted (or barred) under independent and adequate state procedural rules. Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008). For a procedurally defaulted claim to be properly considered by a federal habeas court, the petitioner must "demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750(1991).
D. Ineffective Assistance of Counsel
When claiming habeas relief due to ineffective assistance of counsel at trial, a petitioner must show (1) that his trial counsel's performance fell below an objective standard of reasonableness, and (2) that a reasonable probability exists that but for counsel's error, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). The Court must apply a "strong presumption" that trial counsel's representation fell within the '"wide range of reasonable professional assistance, " and the errors must be "so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Harrington, 131 S.Ct. at 787. This is a high standard, one in which a habeas petitioner alleging prejudice must show that counsel's errors deprived him "of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. That the outcome would have been "reasonably likely" different but for counsel's error is not dispositive of the "prejudice" inquiry. Rather, the Court must determine whether the result of the proceeding was fundamentally unfair or unreliable. Harrington, 131 S.Ct. at 787-88; Strickland, 466 U.S. at 694.
The Supreme Court has cautioned that "'[s]urmounting Strickland's high bar is never an easy task[, ]'. .. [establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Harrington, 131 S.Ct. at 788 (quoting Padilla v. Kentucky, 130 S.Ct. 1473, 1485 (2010)). When evaluating an ineffective assistance of counsel claim, the petitioner must satisfy the highly deferential standards of 28 U.S.C. § 2254(d) and Strickland "in tandem, " making the standard "doubly" more difficult. Id. In such circumstances, the "question is not whether counsel's actions were unreasonable, " but whether "there is any reasonable argument that counsel satisfied Strickland's 'deferential standards.'" Id.
Courts are reluctant to characterize tactical or strategic decisions by trial counsel as ineffective assistance. Carter v. Lee, 283 F.3d 240, 249 (4th Cir. 2002). A "strong presumption" exists that counsel's actions were the function of trial tactics and not "sheer neglect." Harrington, 131 S.Ct. at 790. This rule, however, is not absolute where the purported strategic decision is based upon an error or ignorance of the law by trial counsel. Wilson v. Mazzuca, 570 F.3d 490, 502 (2nd Cir. 2009) (omissions based upon "oversight, carelessness, ineptitude or laziness" cannot be explained as "trial strategy"); Ramonez v. Berghuis, 490 F.3d 482, 488 (6th Cir. 2007) (a strategic choice made without a professionally competent investigation of the Petitioner's options is "erected upon ... a rotten foundation" and is not entitled to deference).
A. Ground One
Petitioner argues that his writ for habeas corpus should be issued because the Solicitor improperly injected race into the trial testimony and his closing argument, thereby denying the Petitioner due process of law at his second sentencing proceeding. It is well settled that the courts must engage in '"unceasing efforts' to eradicate racial prejudice from our criminal justice system." McCleskey v. Kemp, 481 U.S. 279, 310 (1987) (citing Batson v. Kentucky, 476 U.S. 79, 85 (1986)). Indeed, "[discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice." Rose v. Mitchell, 443 U.S. 545, 555 (1979). This vigor in eradicating racial discrimination from the criminal justice system is grounded on the premise that "the inestimable privilege of trial by jury ... is a vital principle, underlying the whole administration of criminal justice." Ex parte Milligan, 4 Wall 2, 123 (1866). "The risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence." Turner v. Murray, 476 U.S. 28, 35 (1986).
There is little question that a "prejudicial argument by the prosecutor poses a serious threat to a fair trial" because it can "undermine the jury's impartiality." Miller, 583 F.2d at 706. The Fourth Circuit has recognized that "a prosecutor's improper argument may so infect the trial with unfairness as to make the resulting conviction a denial of due process." United States v. Wilson, 135 F.3d 291, 297 (4th Cir. 1998). A court reviewing an alleged improper argument of a prosecutor "must consider whether the remarks were, in fact, improper, and, if so, whether the improper remarks so prejudiced the defendant's substantial rights that the defendant was denied a fair trial." Id. This is especially true where the prosecutor's remarks related to an appeal to racial prejudice related to sexual misconduct, because "few forms of prejudice are so virulent." Miller, 583 F.2d at 707.
In evaluating the issue of prejudice from improper prosecutorial argument, the Court should look to the following factors: "(1) the degree to which the prosecutor's remarks had a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters; (5) whether the prosecutor's remarks were invited by improper conduct of defense counsel; and (6) whether curative instructions were given to the jury." United States v. Scheetz, 293 F.3d 175, 186 (4th Cir. 2002).
The analysis concerning whether a prosecutor's improper remarks or submission of racially charged evidence are of such magnitude as to deny the defendant a fair trial is necessarily fact-driven. Some evidence may be improper but not prejudicial or simply inconsequential. In some instances, a judge's immediate and decisive instruction may effectively dispel any prejudicial effect. Miller, 583 F.2d at 707.
A federal court addressing a habeas petition from a state criminal proceeding must also be mindful of the limited standard of review. As earlier summarized in this order, a habeas petition should be granted only where the state court decisions are "contrary to, or involved an unreasonable application of clearly established federal law as decided by the United States Supreme Court" or "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)(1), (2).
The Solicitor's submission of the "black Indian" dream evidence, reference to the African-American Petitioner's prison guard lover as "the blonde-headed lady, " and description of Petitioner as "King Kong" have all been addressed by the state trial, appellate and PCR courts and found not to constitute an appeal to racial prejudice and as non-prejudicial. (Dkt. No. 25-13 at 185-191; Bennett II, 632 S.E.2d at 288-89; Dkt. No. 25-19 at 65-66.) The state trial court erroneously found that the prosecutor did not elicit the "black Indian" testimony where the record clearly indicates that is not correct. (Dkt. No. 25-9 at 50-51; 25-13 at 185.) The "blonde lady" comment was dismissed because not every blonde woman is white. (Dkt. No. 25-13 at 187.) The "King Kong" reference was characterized as an innocent effort to describe the large Petitioner and was not an appeal to the passions and prejudice of the jury. Bennett II, 632 S.E.2d at 231-32.
It is notable that none of the reviewing courts evaluated the potential impact of these various racially charged statements or evidence collectively, analyzing each in isolation. Further, no court addressed what was clearly the Solicitor's calculated effort to introduce the challenged evidence. The "black Indian" testimony was elicited by the Solicitor asking the witness whether he had any dreams when he was in a coma, clearly prompting the testimony. Defense counsel then objected, arguing that a prior crime victim's dream could not possibly constitute relevant evidence. The Solicitor then responded, "[h]e'll bring out the relevance." The Court overruled the objection and the "black Indian" dream was shared with the jury, creating the imagery of black "savages" chasing the white victim. (Dkt. No. 25-9 at 50-51.) Respondents now concede that testimony about a comatose dream is "unqualified evidence, " that it was "odd" for the Solicitor to elicit such testimony, that the trial court "probably" should have sustained the defense's objection to that testimony, and that its relevance could be "[n]othing other than to show the impact that the incident may have had on the victim in that case." (Dkt. No. 107 at 7:23-9:20.) The South Carolina Supreme Court, however, held that "the victim's testimony about his 'black Indians' dream was not 'victim impact' evidence." Bennett II, 632 at 287. Further, Respondents conceded at oral argument that they could not articulate any purpose for the "black Indian" testimony other than to invoke racialized imagery. (Dkt. No. 107 at 11:14-22.).
A similar scenario can be seen in the Solicitor's calculated questioning of an inmate character witness regarding Petitioner's white lover. The Solicitor asked the inmate about the prison guard who "loved" Petitioner and named her. The witness then asked if he was referring to the "real big lady, " a description without any racial reference. The Solicitor then gratuitously stated, "you remember her, the blonde-headed lady." (Dkt. No. 25-11 at 500-01.) The ...