United States District Court, D. South Carolina
Timothy T. Kinard, #304285, Petitioner,
Joseph Battle, Administrator, Abbeville County Detention Center, Respondent.
OPINION AND ORDER
Bruce Howe Hendricks United States District Judge
Petitioner, Timothy T. Kinard, (“Petitioner”), proceeding pro se, filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2)(d), D.S.C., the action was referred to United States Magistrate Judge Kaymani D. West, for pretrial handling and a Report and Recommendation (“Report”). Magistrate Judge West recommends that Respondent’s Motion for Summary Judgment be granted and Petitioner’s § 2254 petition be dismissed. (ECF No. 40.) The Report sets forth in detail the relevant facts and standards of law on this matter and the Court incorporates them without recitation.
Petitioner filed this action against Respondent alleging ineffective assistance of counsel. On January 28, 2016, the Magistrate Judge issued a Report; and on March 8, 2016, Petitioner filed his Objections. (ECF No. 50.) Having carefully reviewed the record, the Court finds that the Magistrate Judge has accurately and adequately summarized the disputed and undisputed facts relevant to this action. The Court has reviewed the objections, but finds them to be without merit. Therefore, it will enter judgment accordingly.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to the district court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the district court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). 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 the absence of a timely filed, specific objection, the Magistrate Judge’s conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
In reviewing these pleadings, the Court is mindful of the petitioner’s pro se status. When dealing with a pro se litigant, the Court is charged with liberal construction of the pleadings. See, e.g., De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003). The requirement of a liberal construction does not mean, however, that the Court can ignore a petitioner’s clear failure to allege facts that set forth a cognizable claim, or that the Court must assume the existence of a genuine issue of material fact where none exists. See United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012).
Affording Petitioner the requisite liberal construction of his filings, the Court found that certain portions of Petitioner’s objections invoked de novo review, which the Court has conducted accordingly. The Magistrate Judge first found that Ground One failed on the merits and the Court agrees. Ground One alleges that trial counsel was ineffective for failing to object to erroneous jury instructions. (ECF No. 1 at 5.) This Ground also alleges that the South Carolina Court of Appeals erred in holding that the trial court “properly charged the jury regarding malice aforethought [and was] without error.” (ECF No. 1-1 at 5.) In her exceptionally thorough thirty-eight page Report, the Magistrate Judge engaged in a thoughtful and comprehensive analysis of this claim. She correctly found that the ruling of the state court was reasonable and that Petitioner failed to carry his burden of establishing counsel was ineffective as required by Strickland v. Washington, 466 U.S. 886 (1984), and its progeny. (ECF No. 40 at 20-26.) She further found that Petitioner’s allegation concerning the trial court’s application of criminal law did not warrant habeas relief. As she correctly stated, “[i]t is not the province of this court to re-examine state law determinations on state-law questions.” (Id. at 21); See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”); see also Chance v. Garrison, 537 F.2d 1212, 1215 (4th Cir. 1976) (“Normally, instructions to the jury in state trials are purely matters of state law and procedure and it is only in circumstances where the instructions impugn fundamental fairness or infringe upon specific constitutional protections that a federal question is presented.”).
Petitioner objects here that “the state collateral court unreasonably applied Strickland” and indicates that the Magistrate Judge’s analysis of Strickland was flawed as well. (ECF No. 50 at 5-18.) He argues that the PCR court and the Magistrate Judge erred by failing to apply State v. Belcher, 685 S.E.2d 802 (S.C. 2009), retroactively, citing Teague v. Lane, 489 U.S. 288 (1989) in support. (Id. at 7.) The Magistrate Judge addressed Petitioner’s Belcher argument extensively, recognizing that Belcher did indeed hold that “the ‘use of a deadly weapon’ implied malice instruction has no place in a murder (or assault and battery with intent to kill) prosecution where evidence is presented that would reduce, mitigate, excuse or justify the killing (or the alleged assault and battery with intent to kill).” 685 S.E.2d at 809. In Teague, the United States Supreme Court articulated a framework to determine whether a ruling by the Supreme Court regarding a criminal procedure has retroactive application. 489 U.S. at 301-310. The Belcher court plainly stated that its holding would not apply to convictions challenged on post-conviction relief and cited Teague. Belcher, 685 S.E.2d at 810. Thus, Petitioner’s reliance on Teague to argue that Belcher should apply retroactively is without merit.
Further, the Magistrate Judge explained the PCR court’s ruling in detail and correctly found that “Petitioner’s trial counsel had no basis on which to object to the trial court’s jury instruction on inferred malice because the instruction given was current and valid based on South Carolina precedent at that time.” (ECF No. 40 at 25.) Petitioner does not offer any compelling argument as to how the Magistrate Judge’s Strickland analysis was improper. This objection is therefore overruled.
The Magistrate Judge next found that Ground Two failed on the merits and the Court agrees. Ground Two alleges that “the state collateral court unreasonably applied Strickland v. Washington, where trial counsel performance at trial was deficient, in cumulative effect.” (ECF No. 1 at 6.) To resolve this claim, the Magistrate Judge referenced her discussion of each of Petitioner’s grounds for relief and correctly found that none of the alleged instances of ineffective assistance of counsel “amounted to error.” (ECF No. 40 at 27.) She further found that “in nearly all instances, trial counsel had valid strategic reasons for his actions taken during Petitioner’s trial.” (Id.) She therefore properly concluded that “Petitioner cannot aggregate the alleged errors to form a constitutional violation.” (Id. (citing Fisher v. Angelone, 163 F.3d 835, 852-853 (1998), cert. denied, 526 U.S. 1035 (1999) (holding that various claims of ineffective assistance of counsel, like claims of trial error, would not entitle petitioner to relief because a cumulative error analysis would apply only to the effect of those matters actually determined to be constitutional error and not the cumulative effect of all matters alleged or deemed deficient)).)
Here, Petitioner objects that the Magistrate Judge erred in dismissing this claim. Citing Freeman v. State, 459 S.E.2d 867 (S.C. 1995), he argues that the cumulative effect of trial counsel’s error warrants a new trial de novo. (ECF No. 50 at 45.) Petitioner misunderstands both the holding in Freeman and the Court’s task at this stage of habeas review. In Freeman, the Supreme Court of South Carolina considered on direct appeal whether the aggregation of the trial judge’s alleged errors produced a cumulative effect of prejudice sufficient to warrant a new trial. 459 S.E.2d at 875. Freeman in no way affects the Magistrate Judge’s analysis-Petitioner has already directly appealed his jury conviction and sentence. Here, the Magistrate Judge and this Court are tasked with reviewing whether the PCR court reasonably applied Strickland to Petitioner’s case. Petitioner does not offer any compelling argument as to how the Magistrate Judge erred in this respect. This objection is therefore overruled.
The Magistrate Judge next found that Ground Three failed on the merits and the Court agrees. Ground Three alleges that trial counsel was ineffective for failing to call Johnny Toole (“Mr. Toole”) as a corroborating witness and for calling a witness, Reginald Davis (“Mr. Davis”), who had prior convictions. (ECF No. 1 at 8.) The Magistrate Judge correctly found that the rulings of the state court were reasonable and that Petitioner failed to carry his burden of establishing counsel was ineffective as required by Strickland and its progeny. (ECF No. 40 at 27-33.) Petitioner argues that the Magistrate Judge did not conduct a proper Strickland analysis because she did not consider the “totality of the circumstances.” (ECF No. 50 at 28-29.) He cites Elmore v. Ozmint, 661 F.3d 783 (4th Cir. 2011), in support. (Id.) In Elmore, the Fourth Circuit Court of Appeals discussed the “totality-of-the-evidence standard” under Strickland, explaining that a PCR court must “‘consider the totality of the evidence before the . . . jury’ [to determine] whether there [is] a reasonable probability that, but for counsel’s errors, a different verdict would have been returned.” 661 F.3d at 868-70 (quoting Strickland, 466 U.S. at 695). The Elmore court employed this standard to assess “the prejudicial effect of a failure to investigate mitigation evidence for sentencing.” Id. at 868. It concluded that the state PCR court’s adjudication of the petitioner’s ineffective assistance claim “was so lacking in justification that there was ...