United States District Court, D. South Carolina, Greenville Division
OPINION & ORDER
M. Herlong, Jr. Senior United States District Judge.
matter is before the court for review of the Report and
Recommendation of United States Magistrate Judge Kevin F.
McDonald, made in accordance with 28 U.S.C. § 636(b)(1)
and Local Civil Rule 73.02 for the District of South
Carolina. Elijah Solomon Baylock, Jr.
(“Baylock”) is a state prisoner seeking habeas
corpus relief pursuant to 28 U.S.C. § 2254. In his
Report and Recommendation, Magistrate Judge McDonald
recommends granting the Respondent's motion for summary
judgment and denying Baylock's petition.
Factual and Procedural Background
is currently incarcerated at Lieber Correctional Institution,
a South Carolina Department of Corrections
(“SCDC”) facility. In September 2010, Baylock was
indicted in South Carolina state court for two counts of
criminal sexual conduct with a minor first degree and two
counts of committing a lewd act on a minor. (Mot. Summ. J.
Ex. 1 (App'x 443-46), ECF No. 8-1.) After a jury trial,
Baylock was found guilty of one count of criminal sexual
conduct with a minor first degree and one count of committing
a lewd act on a minor. (Id. Ex. 1 (App'x
285-86), ECF No. 8-1.) Baylock was sentenced to 25 years'
imprisonment for criminal sexual conduct and 15 years'
imprisonment for committing a lewd act on a minor, such terms
to be served concurrently. (Id. Ex. 1 (App'x
299-300), ECF No. 8-1.)
April 28, 2011, Baylock appealed his conviction.
(Id. Ex. 2 (Not. of App.), ECF No. 8-2.) The South
Carolina Court of Appeals affirmed Baylock's conviction
on August 8, 2012. (Id. Ex. 1 (App'x 335-36),
ECF No. 8-2.) On April 10, 2013, Baylock filed an application
for post-conviction relief (“PCR”), raising
ineffective assistance of counsel and prosecutorial
misconduct claims. (Mot. Summ. J. Ex. 1 (App'x 341-36),
ECF No. 8-1.) An evidentiary hearing was held on May 21,
2014. (Id. Ex. 1 (App'x 356-420), ECF No. 8-1.)
On August 25, 2014, the PCR court dismissed Baylock's PCR
application. (Id. Ex. 1 (App'x 421-42), ECF No.
8-1). Baylock filed a petition for writ of certiorari with
the South Carolina Supreme Court on October 6, 2014.
(Id. Ex. 3 (Pet. for Writ of Cert.), ECF No. 8-3.)
On October 21, 2015, the South Carolina Supreme Court granted
Baylock's petition for writ of certiorari. (Id.
Ex. 6 (Oct. 21, 2015 Order), ECF No. 8-6.) However, on June
29, 2016, the Supreme Court dismissed the writ of certiorari
as improvidently granted. (Mot. Summ. J. Ex. 7, (Jun. 29,
2016 Order), ECF No. 8-7.)
filed the instant § 2254 petition on October 25, 2016,
raising the following grounds for relief:
Ground One: Petitioner Elijah Baylock's constitutional
right to effective assistance of counsel was denied when his
trial counsel failed to object or properly address testimony
regarding the prosecution and guilty plea of Petitioner's
brother, Deandre Baylock.
Ground Two: The trial court's charge to the jury on
corroboration of the victim's testimony was an
unconstitutional and impermissible comment on the facts of
(§ 2254 Pet. 20-22, ECF No. 1.) On December 19, 2016,
Respondent filed a motion for summary judgment. (Mot. Summ.
J., ECF No. 9.) Baylock responded in opposition on March 6,
2017. (Resp. Opp'n Mot. Summ. J., ECF No. 14.) On March
13, 2017, Respondent replied. (Reply, ECF No. 16.) Magistrate
Judge McDonald issued a Report and Recommendation on June 1,
2017, recommending granting Respondent's motion for
summary judgment and denying Baylock's petition. (R&R
24, ECF No. 17.) Baylock filed timely objections to the
Report and Recommendation on June 29, 2017. (Objs., ECF No.
22.) On July 13, 2017, Respondent responded to Baylock's
objections. (Resp. Opp'n Objs., ECF No. 24.) This matter
is ripe for consideration.
Discussion of the Law
Summary Judgment Standard
judgment is appropriate only “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In deciding whether a genuine issue of
material fact exists, the evidence of the non-moving party is
to be believed and all justifiable inferences must be drawn
in his favor. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). However, “[o]nly disputes
over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary
judgment. Factual disputes that are irrelevant or unnecessary
will not be counted.” Id. at 248.
litigant “cannot create a genuine issue of material
fact through mere speculation or the building of one
inference upon another.” Beale v. Hardy, 769
F.2d 213, 214 (4th Cir. 1985). “[W]here the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, disposition by summary
judgment is appropriate.” Monahan v. Cty. of
Chesterfield, Va., 95 F.3d 1263, 1265 (4th Cir. 1996)
(internal quotation marks and citation omitted). “[T]he
mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is
that there be no genuine issue of material
fact.” Ballenger v. N.C. Agric. Extension
Serv., 815 F.2d 1001, 1005 (4th Cir. 1987) (internal
quotation marks and citation omitted).
Standard of Review in a § 2254 Petition
addition to the standard that the court must employ in
considering motions for summary judgment, the court must also
consider the petition under the requirements set forth in 28
U.S.C. § 2254. Under § 2254(d),
[a]n application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in the State court proceedings
unless the adjudication of the claim - (1) resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
“a determination of a factual issue made by a State
court shall be presumed to be correct, ” the petitioner
has “the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1). With respect to reviewing the state
court's application of federal law, “‘a
federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from [the
Supreme] Court's decisions but unreasonably applies that
principle to the facts of the prisoner's
case.'” Humphries v. Ozmint, 397 F.3d 206,
216 (4th Cir. 2005) (quoting Williams v. Taylor, 529
U.S. 362, 413 (2000)). Further, “an ‘unreasonable
application of federal law is different from an incorrect
application of federal law, ' because an incorrect
application of federal law is not, in all instances,
objectively unreasonable.” Id. (quoting
Williams, 529 U.S. at 410). “Thus, to grant [a
petitioner's] habeas petition, [the court] must conclude
that the state court's adjudication of his claims was not
only incorrect, but that it was objectively
unreasonable.” McHone v. Polk, 392 F.3d 691,
719 (4th Cir. 2004).
to the Report and Recommendation must be specific. Failure to
file specific objections constitutes a waiver of a
party's right to further judicial review, including
appellate review, if the recommendation is accepted by the
district judge. See United States v. Schronce, 727
F.2d 91, 94 & n.4 (4th Cir. 1984). In the absence of
specific objections to the Report and Recommendation
of the magistrate judge, this court is not required to give
any explanation for adopting the recommendation. See
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983).
specifically objects that the magistrate judge erred in
finding that the PCR court did not err because counsel was
not ineffective for failing to: (1) object to testimony
regarding the guilty plea of Baylock's brother, Deandre
Baylock (“Deandre”); (2) request a curative
instruction regarding the evidence of Deandre's guilty
plea; and (3) object to the solicitor's closing
statements concerning Deandre's guilty plea. (Objs. 2-5,
ECF No. 22.)
Admission of Testimony
objects that the magistrate judge erred in finding no error
in the PCR Court's determination that counsel's
failure to object to testimony regarding the conviction of
his brother, Deandre, was based on a valid trial strategy.
(Id. at 2-4, ECF No. 22.) In order to successfully
challenge a conviction or sentence on the basis of
ineffective assistance of counsel, Baylock must demonstrate
that his counsel's performance fell below an objective
standard of reasonableness, and that he was prejudiced by his
counsel's deficient performance. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). With respect to
the first prong, there is “a strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance.” Id. at
689. In order to prove prejudice, Baylock must “show
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine the confidence in the
outcome.” Id. at 694.
regard to counsel's strategy, “[s]tanding alone,
unsuccessful trial tactics neither constitute prejudice nor
definitively prove ineffective assistance of counsel.”
Bell v. Evatt, 72 F.3d 421, 429 (4th Cir. 1995).
“For a lawyer's trial performance to be deficient,
his errors must have been so serious that he was not
functioning as the counsel guaranteed the defendant by the
Sixth Amendment.” United States v. Roane, 378
F.3d 382, 404 (4th Cir. 2004) (internal citations and
quotation marks omitted).
argues that counsel's failure to object to the testimony
of Jakayiah Beaton (“Beaton”) and Myesha
Singleton (“Singleton”) was clearly erroneous
because the testimony regarding Deandre's guilty plea for
sexually assaulting the victim implied that both he and
Baylock sexually assaulted the victim. (Objs. 2-3, ECF No.
22.) Additionally, Baylock argues that his counsel's
failure to object could not have been the result of trial
strategy because counsel admitted during the PCR hearing that
the decision not to object was a mistake. (Id. at 4,
ECF No. 22.) Further, Baylock argues that even if the
decision not to object was part of counsel's trial
strategy, counsel was ineffective because testimony regarding
Deandre's guilty plea was analogous to admitting the
confession of a co-defendant, which the Supreme Court has
found to be prejudicial. See Bruton v. United
States, 391 U.S. 123, 132 (1968); Wong Sun v. United
States, 371 U.S. 471, 490-91 (1963).
Court addressed counsel's failure to object to testimony
regarding Deandre's guilty plea and found that counsel
was not ineffective because counsel's decision was based
upon sound trial strategy and that counsel was not
ineffective. (Mot. Summ. J. Ex. 1 (App'x 430-34), ECF No.
8-1.) Specifically, the PCR court found:
Counsel was not ineffective for failing to object to this
line of testimony. This Court finds the testimony of both
Beaton and Singleton does not appear to indicate the
Applicant's brother admitted the Applicant's guilt,
but rather that the Applicant's brother admitted his own
guilt, potential sole responsibility for the acts and
ultimately was convicted after his admission. This Court does
not interpret the testimony of Beaton and Singleton
[regarding Deandre's guilty plea] as the Applicant's
brother indicating the Applicant's guilt.
Although this Court finds that Counsel's testimony is
more credible than the Applicant's testimony, after
exhaustive review of the record, this Court finds that
Counsel's overreaching defense strategy was to attack the
credibility of the victim by highlighting her allegations of
assault against multiple people. This Court finds that the
admission of Deandre's conviction and the accusation
against Katrina Rynes was the subject of the State's
motion in limine. The Solicitor intended to
introduce evidence of the victim's allegations as a
preemptive measure because Counsel's articulated . . .
theory of the case: attacking the victim's credibility by
emphasizing the victim's false allegations. [sic] Counsel
told the court that he and the Solicitor had reached an
agreement regarding the admissibility of the victim's
allegations. However, the court cautioned Counsel regarding
this strategy due to the “all or nothing” nature
of the testimony. Even though Counsel stated during his
testimony at the PCR hearing that in hindsight, he should
have made a contemporaneous objection to the introduction of
Deandre's guilty plea, Counsel was well aware of the
ramifications of his strategy both at the commencement of
trial and throughout the testimony. This Court finds Counsel
is not ineffective for employing a particular defense
strategy that, after all the testimony in the record has been
elicited, later becomes ineffectual.
This Court finds Counsel made a strategic decision to elicit
testimony about the accusations against the Applicant's
brother at trial in order to exculpate the Applicant and
consistent with this strategy question the veracity of the
victim. This Court finds after the State presented testimony
about the victim's allegations against the
Applicant's brother at trial, Counsel effectively in
cross examination effectively used the testimony to the
defense's advantage. This Court also finds the Applicant
was not prejudiced by Counsel's performance since based
on the testimony elicited by the State from ...