United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
KAYMANI D. WEST, Magistrate Judge.
Petitioner Johnny Earl Mahaffey ("Petitioner") is a state prisoner who filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(c) DSC, for a Report and Recommendation on Respondent's Return and Motion for Summary Judgment. ECF Nos. 23, 24. On November 4, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the Summary Judgment Motion, dismissal procedures, and the possible consequences if he failed to respond adequately to Respondent's Motion. ECF No. 25. On December 14, 2015, Petitioner filed a Response in Opposition to Respondent's Motion for Summary Judgment. ECF No. 36. The same day he filed his Response Petitioner filed a Motion to Amend his Petition. ECF No. 37. Respondent filed a Response to Petitioner's Motion to Amend on January 4, 2016, ECF No. 38, and Petitioner filed no Reply to the Response. These matters are now ripe for review. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that Respondent's Motion for Summary Judgment, ECF No. 24, be granted. Additionally, Petitioner's Motion to Amend, ECF No. 37, is granted, and within this Report and Recommendation, the undersigned will address all issues Petitioner raised in his Motion to Amend.
Petitioner is currently incarcerated in the South Carolina Department of Corrections ("SCDC"). ECF No. 1 at 1. In 2006, Petitioner was indicted at the November term of the Anderson County Grand Jury for murder (2006-GS-04-3508) and possession of a firearm during the commission of a violent crime (2006-GS-04-3508). App. 713-716. Petitioner proceeded to trial on September 4, 2007, and Public Defender Robert A. Gamble represented Petitioner, and Assistant Solicitor Rame Campbell represented the State. App. 1. Petitioner was tried before the Honorable J.C. Nicholson. Id. At conclusion of his trial, the jury found Petitioner guilty of the two charges. App. 695-96. Judge Nicholson sentenced Petitioner to life-imprisonment for the murder charge and five-years imprisonment for the possession charge. App. 710. Judge Nicholson ordered the possessions conviction run consecutive to the life imprisonment. App. 710.
Chief Appellate Defender Robert M. Dudek represented Petitioner on direct appeal. ECF No. 23-4. In an Anders ' appellate brief,  Petitioner raised the following issue:
Whether the court abused its discretion by refusing to declare a mistrial where it was undisputed a spectator held up a photograph of the decedent for the jury to view during closing argument and/or the judge's charge on the law since this was an impermissible plea for a verdict based on sympathy or passion and not based on the evidence, and it denied appellant his right to a fair trial?
Id. at 4. On February 2, 2010, the South Carolina Court of Appeals denied Attorney Dudek's request to be relieved as counsel and instructed the parties to brief the following issues:
(1) Did the trial court err in denying Appellant's right to recross-examination?
(2) Did the trial court err in allowing the State to use a demonstrative prop containing the victim's photograph?
(3) Did the trial court err in denying Appellant's motion for a mistrial?
ECF No. 23-5. On May 5, 2010, Attorney Dudek filed an appellate brief as instructed, ECF No. 23-6, and on August 5, 2010, the State filed a Response Brief, ECF No. 23-7. On November 7, 2011, the South Carolina Court of Appeals affirmed Petitioner convictions in an unpublished opinion. ECF No. 23-8. On December 2, 2011, the South Carolina Court of Appeals issued a Remittitur. ECF No. 23-9.
II. Procedural History
Petitioner filed an application for Post-Conviction Relief ("PCR") on April 20, 2012 (2012-CP-04-01524). App. 717-29. Petitioner asserted the following allegations, recited verbatim, regarding his claims:
a) The trial court erred in denying motion for a mistrial.
b) Ineffective assistance of counsel and legal malpractice.
c) There may be others but defendant is not an attorney.
App. 719. Additionally, Petitioner indicated the following facts supported his PCR claims:
(a) The judge abused its discretion by refusing to declare a mistrial where a spectator held up a photograph of the decedent for the jury to see during closing arguments and/or the judge's charge on the law. This introduced an impermissible outside factor into the case since it was a plea for a verdict based on sympathy and passion towards the said spectator and decedent's family, and not on the actual evidence.
(b) Attachment 3D clearly states that because:
[the attorneys] failed to object to the curative measures or to renew the motion for a mistrial. Therefore, we find this issue to be unpreserved for our review."
And it is because of this ineffective assistance of counsel that PCR must be filed; otherwise the court of appeals could have reviewed the above issue "A" and this case would have already been reversed and remanded for trial. But because of the ineffective assistance, the appeal was hindered in its proper process and the defendant forced to remain in prison while over the passing of more than half a decade no court has been able to review the above issue "A."
(c) The defendant is not, and does not pretend to be, an attorney of any kind. And while there are most likely dozens of other relevant issues in this PCR, an actual attorney (outside of Anderson) would be needed to ensure the due process of defendant.
App. 720. Assistant Attorney General Kaelon E. May filed a Return on behalf of the State. App. 730-34. A PCR hearing convened on September 18, 2013, before the Honorable R. Lawton McIntosh. App. 736-89. Petitioner was present and represented by Hugh Welborn, Esq., and John W. Whitmire, Esq., appeared on behalf of the State. Id. In an Order filed December 3, 2013, the PCR court denied Petitioner's PCR Application in full, making the following findings of fact and conclusions of law:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This Court has reviewed the testimony presented at the evidentiary hearing, observed the witnesses presented at the hearing, passed upon their credibility, and weighed the testimony accordingly. Further, this Court reviewed the Clerk of Court's records regarding the subject convictions, the Applicant's records from the South Carolina Department of Corrections, the application for post-conviction relief, the transcripts and exhibits from the prior proceedings, and, and legal arguments of counsel. Pursuant to S.C. Code Ann. § 17-27-80 (2003), this Court makes the following findings of fact based upon all of the probative evidence presented.
This Court denied Applicant's pro se motion to relieve counsel and pro se motion for a continuance. PCR counsel apprised the Court of his prior communications with Applicant. Respondent further apprised this Court of the case hearing of this Action. This Court finds PCR counsel has a wealth of experience in PCR actions and was prepared to present the merits Applicant's claims at the hearing.
As a matter of general impression, Applicant's testimony was entirely lacking of credibility in comparison to the very credible testimonies provided by his three attorneys. This Court notes Applicant was provided the unusual benefit of being represented by two of the most experienced criminal trial attorneys in this Circuit. In denying and dismissing this Application, this Court further notes the importance of considering a criminal defendant's conduct in evaluating an attorney's representation under Strickland's deficiency prong. See Strickland, 466 U.S. at 691. ("The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions."). Here, the record shows that Applicant on numerous occasions elected to ignore the competent advice of counsel to his own detriment.
This Court finds Applicant has failed to meet his burden to prove his attorneys were ineffective for failing to investigate. In this course of representation, "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. "Without a doubt, a criminal defense attorney has a duty to investigate, but this duty is limited to reasonable investigation." Ard v. Catoe, 372 S.C. 318, 331, 642 S.E.2d 590, 597 (2007) (citing Thompson v. Wainwright, 787 F.2d 1447, 1450 (11th Cir. 1986) (internal quotations and citations omitted)). Applicant testified his attorneys declined to investigate evidence that showed the victim was the actual aggressor. Applicant testified he purchased the handgun after the victim had attacked him. Applicant testified the murder resulted from a love triangle and was not premeditated. However, this Court notes contradictory testimony from Applicant that he confessed in order to protect his wife from prosecution. Further Applicant stated he stated he was only guilty as an accessory. This Court finds that the attorneys presented a valid theory of defense that influenced their strategic choices.
Furthermore, Applicant failed to produce witnesses or evidence at the hearing that would have mitigated the State's evidence of malice in the murder. "Failure to conduct an independent investigation does not constitute ineffective assistance of counsel when the allegation is supported only by mere speculation as to the result." Moorehead v. State, 329 S.C. 329, 496 S.E.2d 415 (1998) Applicant testified he desired his attorneys meet with unnamed witnesses but unable to produce their addresses because they were in jail. See Glover v. State, 318 S.C. 496, 458 S.E.2d 538 (1995) (prejudice from trial counsel's failure to interview or call witnesses could not be shown where the PCR applicant failed to introduce evidence of what the uncalled witnesses' testimony would have been and an applicant's mere speculation what a witnesses' testimony would have been cannot satisfy the applicant's burden of showing prejudice.). All three attorneys testified they would have conducted any additional investigation of facts had Applicant requested.
This Court finds Applicant's allegation that counsel was ineffective for failing to obtain a plea offer is without merit. "Counsel, counsel has duty to communicate to defendant formal plea offers that may have favorable terms and conditions." Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399 (2012). "A defendant does not have a constitutional right to plea bargain, a trial judge is not required to accept a plea bargain, and that ordinarily a plea offer is nothing more than an offer until it is accepted by the defendant by entering a court-approved plea of guilty." Custodio v. State, 373 S.C. 4, 10, 644 S.E.2d 36, 38-39 (2007). This Court finds counsel's testimony that the State never made a plea offer credible. Furthermore, Applicant produced no evidence that showed a plea offer existed. See Dempsey v. State 363 S.C. 365, 370, 610 S.E.2d 812, 815 (2005) (Mere speculation cannot support a finding of prejudice.). Therefore, this allegation is denied and dismissed.
This Court finds Applicant did not meet his burden to prove ineffective assistance of counsel for failing to preserve the motion for mistrial for appellate review. A defense attorney is not deficient where there is no legal or factual basis for an objection bottomed and premised. Brown v. State, 375 S.C. 464, 485, 652 S.E.2d 765, 776 (Ct. App. 2007). "A mistrial should only be granted when absolutely necessary, and a defendant must show both error and resulting prejudice in order to be entitled to a mistrial." State v. Ward, 374 S.C. 606, 612, 649 S.E.2d 145, 148 (Ct. App. 2007). "The granting or refusing of a motion for a mistrial lies within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent an abuse of discretion amounting to an error of law." This Court finds a motion for a mistrial was not warranted where the trial judge employed extraordinary remedial measures to cure any taint from the gallery member holding a small picture of the victim during the jury charge. Co-counsel made a motion for a mistrial outside the presence of the jury after noticing the victim's mother holding an unidentified and innocuous picture of the victim. This Court finds the trial judge acted soundly within his discretion in denying the motion for a mistrial. This Court further finds there was no evidence of State misconduct in an incident that was not inherently prejudicial. All officers of the Court were questioned by the trial judge. Only co-counsel saw the photograph. The gallery member sat on the second row some twenty feet from the jury box and held a small photograph to her chest during the jury charge. (Trial Tr. p.679). Subsequently, the trial judge carefully questioned each juror individually regarding the brief incident. (Trial Tr. pp.671-679). Juror number 72, number 58, and one alternate juror noticed the picture. The trial judge dismissed the only juror number 58 who assumed the picture was of the victim. This Court notes the trial judge was in the best position to determine the credibility of the jurors. See State v. Harris, 340 S.C. 59, 63, 530 S.E.2d 626, 628 (2000).
This Court further notes the trial judge's ruling was supported by the record which shows: picture was innocuously held only near the spectator's chest; the podium blocked some of the jurors from seeing the spectator in gallery; none of the attorneys except co-counsel noticed the indictment. This Court notes the present scenario was substantial more harmless than the incident that occurred in trial in State v. Anderson, where the South Carolina Supreme Court held a mistrial was not merited. See State v. Anderson, 322 S.C. 89, 91-92, 470 S.E.2d 103, 105 (1996). Therefore, this allegation is denied and dismissed.
This Court finds Applicant also failed the second prong of Strickland - that he was prejudiced by the performance of his attorneys. This Court finds there was overwhelming evidence of Applicant's guilt for murder. "Overwhelming evidence of guilt negated any claim that counsel's deficient performance could have reasonably affected the result of defendant's trial." Franklin v. Catoe, 346 S.C. 563, 570, 552 S.E.2d 718, 722 n. 3 (2001). Applicant made a detailed confession that led to the recovery of the gun he had intentionally hid from police. Applicant additionally confessed to his wife and to fellow inmate at the Anderson County Detention Center. Shell casings from the scene and bullets from the autopsy of the victim matched the Applicant's gun. Applicant's cell phone records at the time of the murder showed use in close proximity of the scene. The State presented evidence of Applicant's attempts to destroy evidence and manufacture and alibi.
Except as discussed above, this Court finds that the Applicant affirmatively abandons the remaining allegations set forth in his application at the hearing. A waiver is a voluntary and intentional abandonment or relinquishment of a known right. Janasik v. Fairway Oaks Villas Horizontal Property Regime, 307 S.C. 339, 415 S.E.2d 384 (1992). A waiver may be express or implied. "An implied waiver results from acts and conduct of the party against whom the doctrine is invoked from which an intentional relinquishment of a right is reasonably inferable." Lyles v. BMI, Inc., 292 S.C. 153, 158-59, 355 S.E.2d 282 (Ct. App. 1987). The Applicant's failure to address these issues at the hearing indicates a voluntary and intentional relinquishment of his right to do so. Therefore, any and all remaining allegations are denied and dismissed.
Based on all the forgoing, this Court finds and concludes that the Applicant has not established any constitutional violations or deprivations that would require this Court to grant his application for post-conviction relief. Therefore, this application for post-conviction relief must be denied and dismissed with prejudice.
This Court notes that Applicant must file and serve a notice of intent to appeal within thirty (30) days from receipt of this Order to secure the appropriate appellate review. See Rule 203, SCACR Rule 71.1(g), SCRCP; Bray v. State, 336 S.C. 137, 620 S.E.2d 743 (2005), for the obligation of Applicant's counsel to file and serve notice of appeal. The Applicant's attention is also directed to ...