United States District Court, D. South Carolina, Greenville Division
ORDER AND OPINION
MARGARET B. SEYMOUR, Senior District Judge.
Petitioner Jose Angel Herrera ("Petitioner") is an inmate in the custody of the South Carolina Department of Corrections, serving a life plus five years sentence following a conviction for murder and possession of a weapon during a violent crime. Petitioner is currently housed at the Lieber Correctional Institution in Ridgeville, South Carolina. On February 2, 2015, Petitioner filed a pro se petition for a writ of habeas corpus ("Habeas Petition") pursuant to 28 U.S.C. § 2254, alleging the violation of his rights protected by the United States Constitution. ECF No. 1. Respondent Joseph McFadden ("Respondent") opposes Petitioner's petition and moves for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. ECF No. 26. Petitioner filed a response in opposition to Respondent's motion. ECF No. 29.
In accordance with 28 U.S.C. § 636(b) and Local Rule 73.02 D.S.C., the matter was referred to United States Magistrate Judge Kevin F. McDonald for pretrial handling. On January 20, 2016, the Magistrate Judge issued a Report and Recommendation in which he recommended that the court grant Respondent's motion for summary judgment. ECF No. 43. Petitioner filed objections to the Report and Recommendation asking the court to not uphold the Magistrate Judge's recommendation in any form. (ECF No. 49.) For the reasons set forth below, the court adopts the Report and Recommendation of the Magistrate Judge, GRANTS Respondent's motion for summary judgment and DISMISSES the Habeas Petition with prejudice.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
On September 16, 2007, Petitioner's wife, Katherine Herrera, was shot in the back of the head while in her home. ECF No. 27-1, 180-81. Petitioner phoned the police (ECF No. 27-2 at 95), and investigators arrived to find Katherine Herrera dead in the bathroom, slumped down to the floor next to the toilet. ECF No. 27-1 at 180-81.
On October 25, 2007, Petitioner was indicted in Beaufort County, South Carolina, for murder, in violation of S.C. Code § 16-3-10, and possession of a weapon during the commission of a violent crime, in violation of S.C. Code § 16-23-490. ECF No. 27-2 at 220-23. Petitioner proceeded to trial on March 16, 17, and 18, 2009, in the Court of General Sessions for Beaufort County, South Carolina, before the Honorable Thomas Cooper, Jr. ECF No. 27-1 at 5. He was represented by Lauren Carroway, Esquire and Gene Hood, Esquire. Id. The jury found Petitioner guilty of both murder and possession of a weapon during the commission of a violent crime. ECF No. 27-2 at 153. On March 18, 2009, Petitioner was sentenced to incarceration for a period of life without parole.
Petitioner filed a direct appeal to the South Carolina Court of Appeals in which he raised the following issues:
1. Whether the court erred by refusing to charge involuntary manslaughter when there was evidence the gun discharged accidentally but where appellant could be found to have been reckless particularly where a defense counsel correctly cited State v. Light and State v. Burriss in support of the request to charge?
2. Whether the court erred by refusing to charge accident, reasoning that appellant's statement alone was insufficient to justify the instruction, since what appellant told the police was evidence, and it provided evidence, in the alternative, that the gun discharged accidentally where appellant was legally in possession of a gun in his own home, and the jury could have concluded the shooting was an accident particularly where defense counsel correctly cited State v. Burriss in support of the request to charge.
3. Whether the court erred by admitting State's Exhibit 7-12, photographs of holes in the wall particularly where Officer Patrilla testified the holes looked like they were caused by someone punching a hole in the wall, and Captain Bromage testified the photographs showed evidence of "domestic violence" where appellant told him the holes in the wall were months old since this evidence was not relevant to what happened at the time of the shooting and therefore it was just calculated to impermissible inference appellant was a violent person acting in conformance with that character trait?
Final Brief of Appellant, ECF No. 27-3 at 7.
Petitioner's convictions were affirmed by the Court of Appeals by an unpublished opinion filed on June 30, 2011. See State v. Herrera, 2011 WL 11734998 (S.C. Ct. App. June 30, 2011), ECF No. 27-3 at 58-61. The matter was remitted to the lower court on July 20, 2011. ECF No. 27-4.
Petitioner filed an application for post-conviction relief ("PCR") in the Court of Common Pleas for the County of Beaufort, South Carolina, on December 14, 2011. ECF No. 27-11. Petitioner raised the following grounds for relief:
A. Ineffective assistance of counsel
1. Failure to argue Petitioner's first and second versions of events as a basis for requesting a jury charge of involuntary manslaughter and preserving the issue for appellate review.
2. Failure to object to certain portions of the solicitor's closing.
3. Failure to file a motion for change of venue.
4. Commission of a " Doyle violation."
B. State failed to produce all the necessary ingredients for the conviction of murder as ...