United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
Kaymani D. West Florence, South Carolina United States
Joseph Paugh (“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. 24, 25. On July 21, 2017, 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. 26. On November 6, 2017, Petitioner filed a
Response in Opposition to Respondent's Motion for Summary
Judgment. ECF No. 36. Having carefully considered the
parties' submissions and the record in this case, the
undersigned recommends that Respondent's Motion for
Summary Judgment, ECF No. 25, be granted because Petitioner
filed his habeas Petition after the expiration of the
one-year statute of limitations.
is currently incarcerated in the Lee Correctional Institution
(“LCI”) of the South Carolina Department of
Corrections (“SCDC”). In 2009, Petitioner was
indicted at the June term of the Greenville County Grand Jury
for First-Degree Criminal Sexual Conduct with a Minor
(“CSC”) (2009-GS-23-8144). App. 5;
374-75. Petitioner proceeded to a jury trial on
October 14, 2010, before the Honorable D. Garrison Hill,
Circuit Court Judge. App. 1. Petitioner was represented by
Public Defender Christopher D. Scalzo, and Assistant
Solicitor Bryna S. Seay represented the State. Id.
The jury found Petitioner guilty of the CSC charge. App.
270.Judge Garrison sentenced Petitioner to 30-years
imprisonment for the conviction and instructed that
Petitioner be placed on the Sex Offender Registry upon his
release. App. 274-75. Appellate Defender Dayne C. Phillips
represented Petitioner on appeal and raised the following
Did the trial court abuse its discretion in allowing an
expert witness to improperly vouch for a minor's veracity
in a sexual abuse case against Appellant when no physical
evidence was presented by the State and the minor's
credibility was the critical determination of the case?
App. 277-91. Assistant Attorney General William M. Blitch
filed a Response Brief on the State's behalf. App.
293-306. On December 19, 2012, the South Carolina Court of
Appeals affirmed Petitioner's direct appeal in an
unpublished/per curiam opinion. App. 318-19. On
January 11, 2013, the South Carolina Court of Appeals
remitted the matter to the Greenville County Clerk of Court.
filed an application for Post-Conviction Relief
(“PCR”) on November 13, 2013 (2013-CP-23-06153).
App. 321-377. The State filed a Return on May 28, 2014. App
338-42. A PCR hearing was held on October 22, 2014, before
the Honorable Letitia H. Verdin. App. 344.
was present and represented by Brian Johnson; Assistant
Attorney General Karen Ratigan appeared for the State.
Id. Petitioner and trial counsel Scalzo testified as
witnesses during the PCR hearing. App. 345-362. In an Order
of Dismissal filed December 19, 2014, the PCR court denied
Petitioner's PCR Application in full, making the
following findings of fact and conclusions of law:
This Court has had the opportunity to review the record in
its entirety and has heard the testimony and arguments
presented at the PCR hearing. This Court has further had
opportunity to observe each witness who testified at the
hearing, and to closely pass upon their credibility. This
Court has weighed the testimony accordingly.
S.C. Code Ann.
Assistance of Counsel
Frasier v. State
351 S.C. 385
570 S.E.2d 172
applicant to be granted PCR as a result of ineffective
assistance of counsel, he must show both: (1) that his
counsel failed to render reasonably effective assistance
under prevailing professional norms, and (2) that he was
prejudiced by his counsel's ineffective performance.
See Strickland v. Washington, 466 U.S. 668, 686
(1984); Porter v. State, 368 S.C. 378, 629 S.E.2d
353, 356 (2006). Regarding the first prong, the Applicant
must in essence show that counsel's advice was not
“within the range of competence demanded of attorneys
in criminal cases.” Hill v. Lockhart, 474 U.S.
52, 56 (1985). In order to prove prejudice, an applicant must
show “there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Cherry v.
State, 300 S.C. 115, 117-18, 386 S.E.2d 624, 625 (1989).
A reasonable probability is “a probability sufficient
to undermine confidence in the outcome of trial.”
Johnson v. State, 325 S.C. 182, 186, 480 S.E.2d 733,
735 (1997) (citing Strickland, 466 U.S. at 686).
Simpson v. Moore
367 S.C. 587
McKnight v. State
378 S.C. 33
661 S.E.2d 354
Ard v. Catoe
372 S.C. 318
642 S.E.2d 590
Trial Counsel's failure to investigate the date(s) of the
Applicant testified at the PCR hearing that the incidents
giving rise to the charge allegedly occurred over a span of
six years, from 1998 to 2004. He argues that this broad range
of time prevented him from preparing a proper defense and
consequently deprived him of the effective assistance of
Court finds that the Applicant has failed to meet his burden
of proving counsel was ineffective for failing to narrow down
this timeframe. The evidence presented at the PCR hearing
demonstrates that trial counsel conducted a reasonable
investigation into the facts of the Applicant's case, as
required by McKnight v. State, 378 S.C. at 46, 661
S.E.2d at 361. There was further no evidence that the result
of the case would have been different had a different course
of action been taken. This Court finds that trial
counsel's investigation of the case and preparation for
trial were reasonably effective under the prevailing
professional norms of the legal community. Furthermore, the
Applicant demonstrated no prejudice as a result of the date
range use at trial.
Applicant argues that trial counsel was ineffective because
he failed to seek and present an expert witness on
Applicant's behalf. No testimony or other evidence was
presented on this subject at the PCR hearing. The Applicant
further has not demonstrated that, had an expert been called,
the outcome of his trial would have been different.
Therefore, this Court finds that the Applicant has not met
his burden of proving that counsel was ineffective in this
Applicant asserts that trial counsel was ineffective because
he failed to object and request a mistrial after the
Assistant Solicitor asked the Applicant, “How do you
look at yourself in the mirror, every day after what you did
to your daughter?” (Trial Tr. 220.)
Applicant's trial counsel testified that he recalled the
comment and objected to it as soon as it was made.
(See Trial Tr. 220.) Upon his objection the
Assistant Solicitor withdrew the question and sat down.
(Id.) Based on the Assistant Solicitor's
actions, trial counsel did not in his judgment believe any
further action was required.
Simpson v. Moore
Trial Counsel's failure to argue that the State violated
Rule 403 of the ...