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Jones v. McFadden

United States District Court, D. South Carolina

June 23, 2016

Donald Scott Jones, Petitioner,
v.
Joseph McFadden, Warden, Respondent.

          OPINION and ORDER

          BRUCE HOWE HENDRICKS, District Judge.

         Petitioner, Donald Scott Jones, ("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 Thomas E. Rogers, III, for pretrial handling and a Report and Recommendation ("Report"). Magistrate Judge Rogers recommends that Respondent's Motion for Summary Judgment be granted and Petitioner's § 2254 petition be dismissed. (ECF No. 16.) The Report sets forth in detail the relevant facts and standards of law on this matter and the Court incorporates them without recitation.

         BACKGROUND

         Petitioner filed this action against Respondent alleging, inter alia, ineffective assistance of counsel. On April 25, 2016, the Magistrate Judge issued a Report; and on May 17, 2016, Petitioner filed his Objections. (ECF No. 20.) 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.[1]

         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 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).

         DISCUSSION

         The Magistrate Judge found that Ground Two (1), two claims in Ground Two (3), and Ground Four are procedurally barred and the Court agrees. In his thorough thirty-four page Report, the Magistrate Judge first found that Ground Two (1) was not raised to or ruled upon by the PCR court. Ground Two (1) alleges ineffective assistance of counsel due to counsel's conflict of interest. The Magistrate Judge considered Petitioner's argument that Martinez v. Ryan, 132 S.Ct. 1309 (2012), created an exception here because Petitioner's PCR counsel failed to amend the PCR application to include this claim. In Martinez, the Supreme Court held that when a state requires its defendants to raise ineffective assistance of trial counsel claims in initial-review collateral proceedings, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel was ineffective under Strickland v. Washington, 466 U.S. 886 (1984). 132 S.Ct. at 1320. To overcome the procedural bar under Martinez however, the petitioner "must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit." Id. at 1318. (internal citations omitted).

         Here, the Magistrate Judge found that "Petitioner has not shown that his PCR counsel was ineffective under Strickland or that the underlying ineffective assistance of counsel claim is substantially meritorious to overcome the default." (ECF No. 16 at 16.) He noted that the conflicts alleged by Petitioner were merely an "attenuated set of relationships"; specifically, that trial counsel and a family court judge who knew the victim in this case were personal friends. ( Id. at 17.) According to Petitioner, this conflict led trial counsel to present a "half-hearted defense." (ECF No. 10-11 at 30.) The Magistrate Judge correctly concluded that Petitioner's allegations did not establish a conflict of interest and, therefore, Petitioner did not have a meritorious underlying ineffective assistance of counsel claim. See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980) ("In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance."); Thomas v. State, 551 S.E.2d 254, 256 (S.C. 2001) ("An actual conflict of interest occurs where an attorney owes a duty to a party whose interests are adverse to the defendant's.").

         In his objections, Petitioner briefly argues that his PCR counsel was ineffective, but he does not address the alleged ineffectiveness of his trial counsel. (ECF No. 20 at 5-6.) Because the Court agrees with the Magistrate Judge that Petitioner's allegations do not establish a substantially meritorious underlying ineffective assistance of counsel claim, the Martinez exception does not apply. Ground Two (1) is therefore procedurally barred and this objection is overruled.

         The Magistrate Judge also found that two claims in Ground Two (3) were not raised to or ruled upon by the PCR court. These claims allege that trial counsel was ineffective for failing to call Dr. Karns and Detective Ramsey to testify. Petitioner argued that the Martinez exception applied because the PCR counsel failed to subpoena the witnesses to testify at the PCR hearing. The Magistrate Judge correctly found the Martinez exception did not apply here because Petitioner did not establish that trial counsel's representation fell below an objective standard of reasonableness. Specifically, Petitioner "failed to present Dr. Karns and/or Detective Ramsey as a witness at the evidentiary hearing and has failed to submit any evidence of what the proposed witness's testimony would be or evidence that would show a probability that the testimony would have changed the outcome." (ECF No. 16 at 18-19); see White v. Cartledge, No. CV 1:15-365-DCN-SVH, 2016 WL 1104760, at *14 (D.S.C. Jan. 29, 2016), report and recommendation adopted, 2016 WL 1089339 (D.S.C. Mar. 21, 2016) (finding the Martinez exception did not apply to petitioner's claim that his PCR counsel failed to subpoena a witness where the witness "did not testify at the evidentiary hearing[, ]" making "any discussion regarding what [he] would have testified about at trial [] purely speculative") (citing Bannister v. State, 509 S.E.2d 807, 809 (S.C. 1998) (the South Carolina Supreme Court "has repeatedly held a PCR applicant must produce the testimony of a favorable witness or otherwise offer the testimony in accordance with the rules of evidence at the PCR hearing in order to establish prejudice from the witness's failure to testify at trial."); see also Underwood v. State, 425 S.E.2d 20, 22 (S.C. 1992) (prejudice from trial counsel's failure to interview or call witnesses could not be shown where witnesses did not testify at PCR hearing).[2]

         In his objection, Petitioner speculates as to what Dr. Karns and Detective Ramsey would have testified to at trial and how their testimony would have affected a jury. (ECF No. 20 at 10-11.) As previously stated, such speculation is insufficient to establish prejudice from a witness's failure to testify at trial. See Bannister, 509 S.E.2d at 809. Accordingly, this objection is overruled.

         The Magistrate Judge next found that Ground Four was not raised to or ruled upon by the PCR court and was therefore procedurally defaulted. Ground Four alleges that the prosecution engaged in misconduct because Petitioner's prosecution for life without parole was vindictively enhanced, the prosecution allowed for false testimony to be presented by its expert witness, and it neglected to correct inconsistent testimony from the victim. The Magistrate Judge correctly concluded that Petitioner did not demonstrate ...


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