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Owens v. Stirling

United States District Court, D. South Carolina

January 12, 2018

Freddie Owens, Petitioner,
v.
Bryan P. Stirling, Commissioner, South Carolina Department of Corrections, Joseph McFadden, Warden, Lieber Correctional Institution, Respondents.

          REPORT AND RECOMMENDATION DEATH PENALTY HABEAS CORPUS PETITION

          PAIGE J. OSSETT, UNITED STATES MAGISTRATE JUDGE

         Petitioner Freddie Owens, a death-sentenced state prisoner, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter comes before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the respondents' second motion for summary judgment (ECF Nos. 147 & 148) and the petitioner's motion for a hearing (ECF No. 164), and the petitioner's motion to stay (ECF No. 186). All motions have been fully briefed. (See ECF Nos. 166, 174, 175, 184, 189, 190.) Having carefully considered the parties' submissions and the record in this case, the court concludes that the respondents' motion for summary judgment should be granted and Owens's Petition and motion for hearing should be denied. Additionally, the court denies Owens's motion for an evidentiary hearing (ECF No. 164) and recommends denying Owens's motion to stay (ECF No. 186).

         BACKGROUND

         Owens was convicted of murdering a convenience store clerk, Irene Graves, during an armed robbery. After the guilty verdict but before the sentencing phase began, Owens killed his cell mate at the Greenville County Detention Center, Christopher Lee. The jury sentenced Owens to death for Graves's murder. Following an appeal in which the South Carolina Supreme Court vacated his death sentence, a circuit court judge again sentenced him to death. The state supreme court again reversed. After a third sentencing hearing, a jury again imposed the death penalty. The South Carolina Supreme Court affirmed. Following two rounds of proceedings seeking post-conviction relief, Owens now seeks a writ of habeas corpus from this court.

         PROCEDURAL HISTORY

         Owens was indicted in October 1998 in Greenville County for armed robbery, murder and possession of a firearm during the commission of a violent crime, and criminal conspiracy (1998-GS-23-5218, -5220, -5223). (ROA1[1] at 1-6, ECF No. 14-6 at 7-12.) The State issued a notice of intent to seek the death penalty in March 1998. (ROA1 at 7, ECF No. 14-6 at 13.) Owens was represented by John M. Rollins, Esquire, and Karl B. Allen, Esquire, in a jury trial that began on February 8, 1998. (ROA1 at 498-99, ECF No. 14-7 at 7-8.) On February 15, 1998, the jury found Owens guilty as charged. (ROA1 at 3001-06, ECF No. 15-2 at 47-52.) Following a sentencing proceeding, the jury recommended a sentence of death as to the murder conviction, finding the aggravating circumstance that the murder was committed while in the commission of a robbery while armed with a deadly weapon. (ROA1 at 3320, ECF No. 15-2 at 366.) The circuit court sentenced Owens to death for murder, thirty years' imprisonment for armed robbery, five years' imprisonment for possession of a weapon during a violent crime, and five years' imprisonment for criminal conspiracy, the armed robbery sentence to be served consecutively to the death sentence, and the others to be served concurrently. (ROA1 at 3329-31, ECF No. 15-2 at 375-77.)

         First Direct Appeal

         Owens timely appealed and was represented by trial counsel and Katherine Carruth Link, Assistant Appellate Defender with the South Carolina Office of Appellate Defense, who filed a final brief on Owens's behalf raising various issues relating to the trial court's jurisdiction, evidentiary rulings, the denial of a new trial, and sentencing. (Final Br. of Appellant at i, ECF No. 14-1 at 2.)

         On September 4, 2001, the South Carolina Supreme Court affirmed Owens's convictions, vacated his sentence for possession of a firearm during the commission of a violent crime, reversed his death sentence, and remanded the case for a new sentencing proceeding. State v. Owens, 552 S.E.2d 745 (S.C. 2001); (ECF No. 14-4).

         Second Sentencing Proceeding and Appeal

         On remand Owens was represented by Alex Kinlaw, Jr., Esquire, and Steven Sumner, Esquire. (ROA2 at 88, ECF No. 15-7 at 91.) In his second sentencing proceeding, Owens elected a bench trial rather than a jury trial. (ROA2 at 31-36, ECF No. 15-7 at 34-39; ROA2 at 77-86, ECF No. 15-7 at 80-89; ROA2 at 95, ECF No. 15-7 at 98.) Following the sentencing proceeding, Owens was sentenced to death. (ROA2 at 521-23, ECF No. 15-8 at 25-27.) In an opinion issued on December 20, 2004, the South Carolina Supreme Court again reversed Owens's death sentence, and the case was remanded for a third sentencing proceeding. State v. Owens, 607 S.E.2d 78 (S.C. 2004); (ECF No. 15-5).

         Third Sentencing Proceeding

         In his third sentencing proceeding, which began on September 28, 2006, Owens was represented by E.P. “Bill” Godfrey, Esquire, and Ken Gibson, Esquire.[2] (App. at 1, ECF No. 16-1 at 4.) Following the presentation of evidence, a jury sentenced Owens to death for murder, finding the aggravating circumstances that the murder was committed while in the commission of a robbery while armed with a deadly weapon and that the murder was committed while in the commission of a larceny with the use of a deadly weapon. (App. at 1608-11, ECF No. 16-4 at 193-96.)

         Third Direct Appeal

         In a timely filed appeal to the South Carolina Supreme Court, Owens was represented by Joseph L. Savitz, III, Chief Appellate Defender, and Lanelle C. Durant, Appellate Defender, both with the South Carolina Commission on Indigent Defense, Division of Appellate Defense. (ECF No.16-4.) In a final brief filed on Owens's behalf, appellate counsel raised the following issues:

1. The trial judge abused his discretion when he summarily disqualified a potential juror, Sonya Ables (Juror Number 1), solely because she “went to [her] pastor and talked to him about [the death penalty], ” as he incorrectly believed “there is a case right on point, that if a woman talks to her priest after she's been called as a juror about capital punishment, she is disqualified under the law.”
2. The trial judge committed reversible error by admitting Owens' prison disciplinary records, as they violated the rule against hearsay, as well as the Sixth and Fourteenth Amendments.
3. The trial judge committed reversible error by allowing the Solicitor to argue in closing that the conditions of life imprisonment in general justified a death sentence for Owens, as this argument injected an arbitrary factor into the jury sentencing considerations in violation of S.C. Code Section 16-3-25(C)(1).

(App. at 1689, ECF No. 16-4 at 222.) On July 14, 2008, the South Carolina Supreme Court issued an opinion affirming Owens's death sentence. (App. at 1780-84, ECF No. 16-4 at 313-17.) Appellate counsel submitted a petition for rehearing, (App. at 1785-86, ECF No. 16-4 at 318-19), which was denied on August 8, 2008 (App. at 1787, ECF No. 16-4 at 320).

         Petition for Writ of Certiorari in the United States Supreme Court

         On November 5, 2008, Owens, represented by John H. Blume, Esquire, and Keir M. Weyble, Esquire, filed a petition for writ of certiorari in the United States Supreme Court, presenting the following question:

Whether the South Carolina Supreme Court's holding that Petitioner's Confrontation Clause challenge to the admission of testimonial hearsay contained in prison disciplinary records was procedurally barred is an adequate and independent state ground given that A) trial counsel objected and challenged the trustworthiness and reliability of the evidence, which are the precise values embodied the Confrontation Clause; and B) the trial court clearly understood that counsel's objection raised a federal constitutional issue.

(App. at 1789, ECF No. 16-4 at 322.) The Court denied the petition on January 21, 2009. (App. at 1863, ECF No. 16-4 at 396.)

         First Post-Conviction Relief Action

         Owens filed a pro se application for post-conviction relief (“PCR”) on January 29, 2009. (Owens v. State of South Carolina, 2009-CP-23-1741; App. at 1864-68, ECF No. 16-4 at 397-401.) Subsequently, Weyble and Emily C. Paavola, Esquire, were appointed to represent Owens in the PCR proceeding, and they filed an amended petition on his behalf. (Owens v. State of South Carolina, 2009-CP-23-1741; App. at 1869-74, ECF No. 16-4 at 402-07). The State filed a return on April 2, 2009. (App. at 1885-1945, ECF No. 16-5 at 9-69.) Through Weyble and Paavola, Owens filed a second amended application for post-conviction relief on June 15, 2010, raising the following claims:

10(a): Applicant was denied the right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, §§ 3 and 14 of the South Carolina Constitution during jury selection at his 2006 capital re-sentencing proceeding.


11(a): Supporting Facts: Trial counsel's performance during jury selection was both deficient and prejudicial. See Strickland v. Washington, 466 U.S. 668 (1984). Counsel's acts or omissions included the following:
1) Counsel failed to object to statements by the solicitor, and similar instructions by the trial court, that the State may only seek death where aggravating circumstances are present, which improperly suggested to potential jurors that the aggravating circumstances had already been found.
2) Counsel failed to object when the trial judge erred by disqualifying a potential juror, Sonya Ables (Juror Number 1), solely because she “went to [her] pastor and talked to him about [the death penalty], ” as the trial judge incorrectly believed “there is a case right on point, that if a woman talks to her priest after she's been called as a juror about capital punishment, she is disqualified under the law.” 10(b): Applicant was denied the right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, §§ 3 and 14 of the South Carolina Constitution, during his 2006 capital sentencing proceeding.


11(b): Supporting facts: Trial counsel's performance during the sentencing phase was both deficient and prejudicial. See Strickland v. Washington, 466 U.S. 668 (1984). Counsel's acts or omissions included the following:
1) Counsel failed to object and/or request proper instructions from the court when the State played a crime scene video without further explanation or analysis. 2006 Tr. at 1076. The crime scene video shows two masked men, but their faces are not identifiable. One of the masked men is primarily shown in the video. He stands behind the counter, points a gun at the clerk, and appears to shoot the clerk before the two men run out of the convenience store. Applicant's co-defendant, Steven Golden, testified at Applicant's previous trials that it was he (Golden) who is primarily visible in the video. The State then offered an analysis as to why it believed the fatal shot came from the other man standing off-camera. The jury at Applicant's 2006 re-sentencing heard no analysis about who appears in the video. They were simply instructed that Applicant had already been found guilty of murder, and then they were shown the video without explanation. The trial judge at the 2006 re-sentencing instructed the jurors that they could consider whether Applicant had “minor participation” in the crime as a mitigating circumstance. 2006 Tr. at 1592. But, without further instruction, the video misled the jury to believe that there was conclusive video-graphic evidence that Applicant fired the fatal shot, thereby foreclosing consideration of both the “minor participation” mitigating circumstance, and the related possibility that Applicant, though perhaps present, had not been the triggerman.
2) Counsel failed to object to improper and prejudicial opinion testimony from Officer Joe Wood that Applicant gave him “cold chills, ” and the solicitor's reliance on that testimony in closing argument. 2006 Tr. at 1093 and 1559.
3) Counsel failed to object to victim impact testimony regarding the effect of the victim's death on the victim outreach coordinator. 2006 Tr. at 1274. Such testimony was outside the scope of proper victim impact evidence, and counsel's failure to lodge an appropriate objection was unreasonable and prejudicial. Counsel also failed to object to hearsay testimony from the victim outreach coordinator concerning statements that the victim's children made to her after the victim's death. 2006 Tr. at 1268-1271. These statements violated the evidentiary rules of South Carolina, as well as the confrontation and the due process clauses of the state and federal constitutions.
4) Counsel failed to preserve the state and federal constitutional issues related to the admission of a list of disciplinary infractions by failing to object on the basis of the Confrontation Clause and due process. On appeal, the South Carolina Supreme Court held that counsel's objection was inadequate to preserve the federal constitutional issues and thus, the issue was procedurally barred. See State v. Stone, 655 S.E.2d 487, 488-89 (S.C. 2007). Counsel's failure to lodge an appropriate objection was deficient and prejudicial.
5) Counsel failed to present readily available mitigating evidence that had already been developed at Applicant's previous trial and first re-sentencing proceeding. Ms. Marjorie Hammock previously testified in much greater detail to Applicant's life history and background. Further, Dr. Jim Evans previously testified that Applicant has brain dysfunction and difficulties with attention and impulse control. Counsel failed to have Ms. Hammock testify to all of the details that were available concerning Applicant's life history, and counsel failed to call Dr. Evans to testify at all.
6) Counsel failed to investigate and present mitigating evidence of Applicant's experiences while incarcerated in the Department of Juvenile Justice, and the impact of those experiences upon his character, conduct, and psychological condition.
7) Counsel failed to ensure that jurors did not see Applicant in restraints.
8) Counsel failed to object to the solicitor's improper and prejudicial closing argument. For example, counsel failed to object to the solicitor's statements that the prosecution seeks death only rarely, even in eligible cases, and this case was one of those rare cases: “Only limited circumstances are allowed for us to seek the death penalty, and rarely do we seek the death penalty in all those cases that are eligible. In only certain cases do we seek the death penalty.” 2006 Tr. at 1552; see also, 2006 Tr. at 1555 (“There are mean and evil people in the world who do not deserve to continue to live with the rest of us, regardless of how confined they may be. The law limits the right to seek the death penalty to a very select number of cases, very few, and we seek the death penalty only in a few, but the circumstances where we seek it is available mean and evil people who commit atrocious acts of murder; the worst of the worst. That is what the death penalty is reserved for. Those whose behavior sets them apart even from the criminal world, and that is Freddie Owens, and this murder and his behavior are one of those cases”). Counsel further failed to object when the solicitor argued that the jury should sentence Applicant to death because his life would be easy in prison. See, e.g., 2006 Tr. at 1561 (“[b]ig prison is like a little city. In prison he will have all the necessities in life. . . . He will have clothing that they provide, and he will have contact with his family, and TV at times, and he will have family business. Not much more than a change of address for Freddie Owens. So don't think putting Freddie Owens in prison for the rest of his life is going to be a significant punishment for him”). Counsel also failed to object when the solicitor told the jury that he personally wanted the death penalty and would not be “satisfied with a life sentence.” 2006 Tr. at 1555.
Counsel thus failed to preserve for appeal whether the improper arguments violated the Sixth, Eighth and Fourteenth Amendments and the corresponding provisions of the South Carolina Constitution and South Carolina law, including S.C. Code Ann. § 16-3-25(C) (2003).
10(c): Applicant's death sentence was obtained in violation of the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and the corresponding provisions of South Carolina law, because the jurors saw Applicant in restraints.


11(c): The above ground states the relevant facts.
10(d): Applicant was denied the right to effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article I, §§ 3 and 14 of the South Carolina Constitution, during the appellate phase of his 2006 re-sentencing proceeding.


11(d): Supporting facts: Appellate counsel's performance on appeal was both deficient and prejudicial. See Strickland v. Washington, 466 U.S. 668 (1984); Evitts v. Lucey, 469 U.S. 387 (1985). Appellate counsel failed to assert that it was error for the trial court to deny Applicant's request to ask potential jurors if they would have a bias in favor of police officers because of their previous work in that field.

(Owens v. State of South Carolina, 2009-CP-23-1741; App. at 1876-82, ECF No. 16-4 at 409 & ECF No. 16-5 at 1-6 (footnote omitted; alterations in original)). On July 19-20, 2010, an evidentiary hearing was held before the Honorable Edward W. Miller, South Carolina Circuit Court judge. The following witnesses testified: Joey Savitz, Kenneth Gibson, Bill Godfrey, Jill Rider, James Garbarino, Drucy Glass, John Rollins, Steve Sumner, Robert Ariail, Donna Schwartz-Watts, and Tora Brawley. (App. at 1946-2312, ECF No. 16-5 at 70-84 & ECF No. 16-6 at 4-355.) By order filed February 13, 2013, the PCR court denied and dismissed with prejudice Owens's PCR application. (App. at 3567-97, ECF No. 16-14 at 140-70.)

         Thereafter, PCR counsel filed a motion to alter or amend the judgment. (App. at 3598-3605, ECF No. 16-14 at 171-78.) That motion was denied by an order filed April 10, 2013. (App. at 3607-08, ECF No. 16-14 at 180-81.)

         First PCR Appeal

         On appeal, Owens continued to be represented by Weyble and Paavola, who filed a petition for a writ of certiorari that presented the following issues:

I. Whether Petitioner's right to effective assistance of counsel was violated as a result of trial counsel's failure to investigate and present available and compelling mitigating evidence from Petitioner's entire life history?
II. Whether Petitioner's right to effective assistance of counsel was violated as a result of trial counsel's failure to raise readily available challenges to a variety of evidence offered by the prosecution in support of its case for a sentence of death?
III. Whether Petitioner's rights under the Eighth and Fourteenth Amendments and S.C. Code Ann. § 16-3-25(C)(1) were violated as a result of the prosecutions' improper closing argument and improper statements during jury selection, and whether Petitioner's right to effective assistance of counsel was violated as a result of trial counsel's failure to object to the same?
IV. Whether Petitioner was prejudiced as a result of the cumulative effect of trial counsel's multiple deficient acts and omissions?

(ECF No. 15-9.) The State filed a return to the petition for writ of certiorari. (ECF No. 15-10.) Owens then filed a reply. (ECF No. 15-12.) On June 17, 2015, the South Carolina Supreme Court issued an order denying Owens's petition for a writ of certiorari. (ECF No. 15-13.) Owens filed a petition for rehearing, (ECF No. 15-14), which was denied on July 23, 2015 (ECF No. 15-15). The remittitur was issued on July 23, 2015. (ECF No. 15-16.)

         Federal Habeas Corpus

         The instant action commenced on July 27, 2015. (ECF Nos. 1 & 2.) On July 11, 2016, Owens filed a Petition for writ of habeas corpus. (ECF No. 83.) Owens then filed a motion to stay this action while he pursued various unexhausted claims in state court. (ECF No. 93.) On September 8, 2016, Owens filed an amended Petition for writ of habeas corpus. (ECF No. 117.) This case was stayed on October 18, 2016. (ECF No. 124.) The stay was lifted on April 27, 2017. (ECF No. 146.)

         Second PCR Action

         On July 20, 2016, Owens filed a PCR application in state court alleging the following grounds for relief:

(a) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to investigate, develop and present evidence of institutional negligence which would have mitigated the State's theory that the in-custody death of Mr. Lee conclusively established future dangerousness and the only sentencing option for the petitioner was death. Evidence from expert witnesses available at the time of the petitioner's sentencing trial demonstrated that institutional negligence in failing to classify, and detain the petitioner in accordance with that classification, was the proximate cause of the death of Mr. Lee. 5th, 6th, 8th and 15th Amendments to the Constitution of the United States of America; Skipper v South Carolina, 476 U.S. 1 (1986).
(b) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to investigate, develop and present objective and scientific evidence of structural and functional brain damage resulting from early childhood trauma and materially limiting the applicant's ability to make informed decisions, learn from past behavior, and control impulses resulting from recurrence of situation prompts in daily living which were the same or similar to those of his early childhood. 5th, 6th, 8th, and 14th Amendments to the Constitution of the United States of America; Wiggins v Smith, 539 U.S. 510 (2003).
(c) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to investigate, develop and present objective and scientific evidence of structural and functional brain damage resulting from a history of epileptic grand mal seizures and its impact upon the applicant's cognitive functioning and resulting culpability for the crime of conviction. All in violation of the Fifth, Sixth, Eighth, Fourteenth Amendments to the Constitution of the United States of America; and clearly established federal law as announced by the Supreme Court of the United States in Wiggins v Smith, 539 U.S. 510 (2003).
(d) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to object to the court's recurring jury charge that a finding of life without parole must be unanimous when that charge was not in the sentencing statute, was false, materially misleading, coercive, abusive and irrelevant to the sentencing function. (5th, 6th 8th and 14th Amendments to the Constitution of the United States of America; (Winkler v South Carolina not yet decided)
(e) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to investigate, develop and present mitigation evidence that the applicant suffered from repeated early childhood trauma and sexual abuse. These abusive experiences resulted in organic brain injury, ambiguous sexual identity, and created within the applicant a sensitivity to common adult situational prompts that, in his case, lead to a recurrence of the earlier trauma and extreme preemptive fear aggression as the only behavioral response known to the applicant. 5th, 6th, 8th, and 14th Amendments to the Constitution of the United States of America; Rompilla v Beard, 545 U.S. 374 (2005).
(f) Trial, direct appellate and collateral counsel were ineffective to the prejudice of the applicant by failing to include as reversible error an objection to the trial court's decision to allow testimony of in-custody administrative rules violations as aggravation evidence supporting a sentence of death when those violations were disproportionate to the crime for which the jury was sentencing the petitioner, did not result in injury, were in part administrative violations common to every inmate and were not characterological of the petitioner's propensity for future violence.
(g) Trial counsel duly requested that the State disclose all evidence which might be favorable to the defense. Nonetheless, the State failed to disclose evidence that impeaches material witnesses against the applicant in violation of the Fifth, Eighth and Fourteenth Amendments to the Constitution of the United States of America; Brady v Maryland, 373 U.S. 83 (1963) and Wearry v Cain, 136 S.Ct. 1002 (2016). Collateral counsel were ineffective to the prejudice of the applicant in failing to recognize that the State did not disclose material items that would have substantially improved the mitigation case and changed cross-examination tactics had the materials been timely disclosed.
(h) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to challenge the State's decision to seek the death penalty as the decision was motivated by arbitrary factors since the crime was disproportionate to the rare and exceptional case as required by the narrowing features of Furman v Georgia and Gregg v Georgia and the Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States of America.

(Owens v. State of South Carolina, 2016-CP-23-4384; ECF No. 113-1 (errors in original)). In an order filed April 10, 2017, the state PCR court dismissed Owens's second PCR application as untimely and improperly successive under state law. (See ECF No. 138-1.) The stay in this action was then lifted, and briefing recommenced.

         FEDERAL HABEAS ISSUES

         Owens's amended federal Petition for a writ of habeas corpus raises the following issues, quoted verbatim:

         EXHAUSTED GROUNDS FOR FEDERAL HABEAS RELIEF

(1) Trial counsel was ineffective at Petitioner's 2006 sentencing proceeding for failing to investigate and present available and compelling mitigating evidence.
(2) Trial counsel was ineffective at Petitioner's 2006 sentencing proceeding for failing to object to the list of prison disciplinary infractions on Confrontation Clause and Due Process, Eighth Amendment and Proportionality Grounds.
(3) Trial counsel was ineffective at Petitioner's 2006 sentencing proceeding for failing to object or request proper instructions from the court regarding the crime scene video.
(4) Trial counsel was ineffective at Petitioner's 2006 sentencing proceeding for failing to object to irrelevant, inflammatory, and prejudicial testimony from both Officer Joe Wood, who testified Petitioner gave him “cold chills, ” and Juliana Christy, a victims' advocate who testified this case was “the hardest case she ever had to work on” in fifteen years at the Greenville County Sheriff's Department.
(5) Petitioner's rights under the Eighth and Fourteenth Amendments were violated as a result of the prosecution's improper closing argument and improper statements during jury selection, and trial counsel was ineffective for failing to object to the same.

         UNEXHAUSTED GROUNDS FOR FEDERAL HABEAS RELIEF Martinez v. Ryan, 132 S.Ct. 1302 (2012).

(6) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to investigate, develop and present evidence of institutional negligence which would have mitigated the State's theory that the in-custody death of Mr. Lee conclusively established future dangerousness and the only sentencing option for the petitioner was death. Evidence from expert witnesses available at the time of the petitioner's sentencing trial demonstrated that institutional negligence in failing to classify, and detain the petitioner in accordance with that classification, was the proximate cause of the death of Mr. Lee. 5th, 6th, 8th and 14th Amendments to the Constitution of the United States of America; Skipper v South Carolina, 476 U.S. 1 (1986).
(7) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to investigate, develop and present objective and scientific evidence of structural and functional brain damage resulting from early childhood trauma and materially limiting the applicant's ability to make informed decisions, learn from past behavior, and control impulses resulting from recurrence of situation prompts in daily living which were the same or similar to those of his early childhood. 5th, 6th, 8th, and 14th Amendments to the Constitution of the United States of America; Wiggins v Smith, 539 U.S. 510 (2003).
(8) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to object to the court's recurring jury charge that a finding of life without parole must be unanimous when that charge was not in the sentencing statute, was false, materially misleading, coercive, abusive and irrelevant to the sentencing function. (5th, 6th 8th and 14th Amendments to the Constitution of the United States of America; (Winkler v South Carolina not yet decided)
(9) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to investigate, develop and present mitigation evidence that the applicant suffered from repeated early childhood trauma and sexual abuse. These abusive experiences resulted in organic brain injury, ambiguous sexual identity, and created within the applicant a sensitivity to common adult situational prompts that, in his case, lead to a recurrence of the earlier trauma and extreme preemptive fear aggression as the only behavioral response known to the applicant. 5th, 6th, 8th, and 14th Amendments to the Constitution of the United States of America; Rompilla v Beard, 545 U.S. 374 (2005).
(10) Trial, direct appellate and collateral counsel were ineffective to the prejudice of the applicant by failing to include as reversible error an objection to the trial court's decision to allow testimony of in-custody administrative rules violations as aggravation evidence supporting a sentence of death when those violations were disproportionate to the crime for which the jury was sentencing the petitioner, did not result in injury, were in part administrative violations common to every inmate and were not characterological of the petitioner's propensity for future violence.
(11) Trial counsel duly requested that the State disclose all evidence which might be favorable to the defense. Nonetheless, the State failed to disclose evidence that impeaches material witnesses against the applicant in violation of the Fifth, Eighth and Fourteenth Amendments to the Constitution of the United States of America; Brady v Maryland, 373 U.S. 83 (1963) and Wearry v Cain, 136 S.Ct. 1002 (2016). Collateral counsel were ineffective to the prejudice of the applicant in failing to recognize that the State did not disclose material items that would have substantially improved the mitigation case and changed cross-examination tactics had the materials been timely disclosed.
(12) Trial and collateral counsel were ineffective to the prejudice of the applicant by failing to challenge the State's decision to seek the death penalty as the decision was motivated by arbitrary factors since the crime was disproportionate to the rare and exceptional case as required by the narrowing features of Furman v Georgia and Gregg v Georgia and the Fifth, Sixth, Eighth and Fourteenth Amendments to the Constitution of the United States of America.

(Pet., ECF No. 117 at 6-7.)

         DISCUSSION

         A. Summary Judgment Standard

         Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). Rule 56 mandates entry of summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         In deciding whether there is a genuine issue of material fact, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. 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.

         The moving party has the burden of proving that summary judgment is appropriate. Once the moving party makes this showing, however, the opposing party may not rest upon mere allegations or denials, but rather must, by affidavits or other means permitted by the Rule, set forth specific facts showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56(c), (e); Celotex Corp., 477 U.S. at 322.

         B. Habeas Corpus Standard of Review

         In accordance with the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), claims adjudicated on the merits in a state court proceeding cannot be a basis for federal habeas corpus relief unless the decision was “contrary to, or involved an unreasonable application of clearly established federal law as decided by the Supreme Court of the United States, ” or the decision “was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d)(1), (2). When reviewing a state court's application of federal law, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 410 (2000); see also White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (describing an “unreasonable application” as “objectively unreasonable, not merely wrong” and that “even clear error will not suffice”) (internal quotation marks and citation omitted); Harrington v. Richter, 562 U.S. 86, 100 (2011); Humphries v. Ozmint, 397 F.3d 206 (4th Cir. 2005); McHone v. Polk, 392 F.3d 691 (4th Cir. 2004). Moreover, state court factual determinations are presumed to be correct and the petitioner has the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

         “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)); see also White, 134 S.Ct. at 1702 (stating that “ ‘[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement' ”) (alteration in original) (quoting Harrington, 562 U.S. at 103). Under the AEDPA, a state court's decision “must be granted a deference and latitude that are not in operation” when the case is being considered on direct review. Harrington, 562 U.S. at 101. Moreover, review of a state court decision under the AEDPA standard does not require an opinion from the state court explaining its reasoning. See id. at 98 (finding that “[t]here is no text in [§ 2254] requiring a statement of reasons” by the state court). If no explanation accompanies the state court's decision, a federal habeas petitioner must show that there was no reasonable basis for the state court to deny relief. Id. Pursuant to § 2254(d), a federal habeas court must (1) determine what arguments or theories supported or could have supported the state court's decision; and then (2) ask whether it is possible that fairminded jurists could disagree that those arguments or theories are inconsistent with the holding of a prior decision of the United States Supreme Court. Id. at 102. “If this standard is difficult to meet, that is because it was meant to be.” Id. Section 2254(d) codifies the view that habeas corpus is a “ ‘guard against extreme malfunctions in the state criminal justice systems, ' not a substitute for ordinary error correction through appeal.” Id. at 102-03 (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in judgment)).

         Many of the grounds raised in this habeas corpus petition allege ineffective assistance of counsel. A defendant has a constitutional right to the effective assistance of counsel. To demonstrate ineffective assistance of counsel, a petitioner must show, pursuant to the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668 (1984), that (1) his counsel was deficient in his representation and (2) he was prejudiced as a result. Id. at 687; see also Williams v. Taylor, 529 U.S. 362, 391 (2000) (stating that “the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims”). To satisfy the first prong of Strickland, a petitioner must show that trial counsel's errors were so serious that his performance was below the objective standard of reasonableness guaranteed by the Sixth Amendment to the United States Constitution. With regard to the second prong of Strickland, a petitioner “must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

         The United States Supreme Court has cautioned federal habeas courts to “guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d).” Harrington, 562 U.S. at 105. The Court observed that while “ ‘[s]urmounting Strickland's high bar is never an easy task[, ]' . . . [e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult.” Id. (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). The Court instructed that the standards created under Strickland and § 2254(d) are both “ ‘highly deferential, ' and when the two apply in tandem, review is ‘doubly' so.” Id. (citations omitted). Thus, when a federal habeas court reviews a state court's determination regarding an ineffective assistance of counsel claim, “[t]he question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.” Id.

         The Supreme Court has held that a decision containing a reasoned explanation is not required from the state court. As stated above, if no explanation accompanies the state court's decision, a federal habeas petitioner must show that there was no reasonable basis for the state court to deny relief. In the case at bar, this court has the benefit of the PCR court's written opinion, certiorari review of which was denied by the South Carolina Supreme Court, which may provide reasons or theories that the appellate court could have relied upon in summarily denying Owens's petition. Therefore, for the ineffective assistance of counsel claims raised in state court, the court turns to the question whether the PCR court's order unreasonably misapplied federal law or was based on an unreasonable determination of the facts.

         C. Exhaustion Requirements

         A habeas corpus petitioner may obtain relief in federal court only after he has exhausted his state court remedies. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must present his claims to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on other grounds by United States v. Barnette, 644 F.3d 192 (4th Cir. 2011); see also In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases, 471 S.E.2d 454, 454 (S.C. 1990) (holding that “when the claim has been presented to the Court of Appeals or the Supreme Court, and relief has been denied, the litigant shall be deemed to have exhausted all available state remedies”). To exhaust his available state court remedies, a petitioner must “fairly present[] to the state court both the operative facts and the controlling legal principles associated with each claim.” Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004) (internal quotation marks and citation omitted). Thus, a federal court may consider only those issues which have been properly presented to the state appellate courts with jurisdiction to decide them. Generally, a federal habeas court should not review the merits of claims that would be found to be procedurally defaulted (or barred) under independent and adequate state procedural rules. Lawrence v. Branker, 517 F.3d 700, 714 (4th Cir. 2008); Longworth, 377 F.3d 437; see also Coleman v. Thompson, 501 U.S. 722 (1991). For a procedurally defaulted claim to be properly considered by a federal habeas court, the petitioner must “demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.

         D. Respondent's Motion for Summary Judgment

         1. Preserved Grounds

         a. Ground One

         In Ground One, Petitioner asserts that sentencing counsel were ineffective for failing to investigate and present available and compelling mitigating evidence. (Pet. at 10, ECF No. 117 at 10.) This allegation incorporates sentencing counsel's purported failure to present multiple types of mitigation evidence, including a more extensive presentation by their social historian, Marjorie Hammock, evidence available in the file of a former mitigation investigator, Drucy Glass, and evidence regarding Owens's experience while incarcerated in the South Carolina Department of Juvenile Justice (“DJJ”). To some extent, this claim was raised to and considered by the PCR court, but Owens asserts that the PCR court's denial of the claim was unreasonable. (Pet. at 52, ECF No.117 at 52.) The respondents, on the other hand, argue that the PCR court's decision comprised reasonable factual findings and was the result of a reasonable application of federal law.

         i. Hammock's Testimony and Glass's Evidence

         The PCR court first considered whether sentencing counsel were ineffective for failing to present mitigation evidence that was presented in Owens's first or second sentencing proceedings. (App. at 3587, ECF No. 16-14 at 160.) As part of that claim, the PCR court considered, among other things, whether sentencing counsel should have introduced a more in-depth presentation by Marjorie Hammock, and whether they should have presented evidence that was found in the file of Drucy Glass, who served as a mitigation investigator for Owens's first two sets of counsel. (App. at 3587-91, ECF No. 16-14 at 160-64.) The PCR court denied the ineffective assistance of counsel claim, finding that “Owens' trial counsel properly conducted a thorough investigation into potential mitigating evidence and chose to present evidence that it thought would favor Owens at trial.” (App. at 3588, ECF No. 16-14 at 161.)

         As to Hammock's testimony, the PCR court found legitimate reasons that her testimony in Owens's third sentencing proceeding was “less substantial” than in his previous two sentencing proceedings. For example, the PCR court noted that the State did not cross-examine Hammock in Owens's third sentencing proceeding as it had in the first two. (App. at 3588-89, ECF No. 16-14 at 161-62.) Additionally, the PCR court found Hammock's testimony regarding how Owens might adjust to incarceration, which was not given at the third sentencing proceeding, to be “irrelevant after Owens had been imprisoned for several years and had a lengthy prison disciplinary infraction record.” (App. at 3589, ECF No. 16-14 at 162.) The PCR court concluded that sentencing counsel made a strategic decision not to elicit such irrelevant testimony. (App. at 3589, ECF No. 16-14 at 162.) The PCR court also found that Owens was not prejudiced by sentencing counsel's omissions, noting:

Although her testimony was more limited in the third sentencing proceeding than in the first two, Hammock nevertheless offered substantially the same testimony, including that Owens frequently was exposed to violence in his home and neighborhood; suffered from physical abuse; witnessed physical abuse, including one incident during which his step-father chased his mother around the house with a machete; had five family members who had been incarcerated; and, was in and out of foster care for portions of his childhood. Hammock further testified as to the strong correlation between the type of childhood that Owens had and a future history of violence. The topics that she failed to cover were addressed by the other mitigation witnesses at the third sentencing proceeding, specifically Schwartz-Watts, Cobb, Brawley, and Owens' teacher, Ms. Maag.

(App. at 3590, ECF No. 16-14 at 163.)

         Owens now argues “there is no evidence that trial counsel made a strategic decision not to elicit additional testimony from Hammock.” (Pet. at 55, ECF No. 117 at 55.) However, while sentencing counsel may not have used the words “strategic decision” in describing how they handled Hammock's direct examination, their PCR testimony reveals careful planning, which incorporated Hammock's own analysis of how effective her past testimony had been. Gibson, who conducted the direct examination of Hammock, testified that he reviewed the transcripts of the previous trials and then met with Hammock to plan how to proceed in the direct examination. (App. at 2002-03, ECF No. 16-6 at 45-46.) He explained his process as follows:

[W]hen we met on that Saturday, we sat and we talked. We sort of went through what information she had, what information, you know, that she thought was important, what information-we talked about her earlier testimony, you know, what she thought had gone well, you know, whatever, what she thought hadn't. And then based on that conversation, I basically formulated, you know, the questions to try to get it out of her.

(App. at 2003, ECF No. 16-6 at 46.) When asked if his intention was to develop Hammock's testimony “perhaps in a more concise fashion, but along the same lines as her testimony in the first two trials[, ]” Gibson responded, “Yes.” (App. at 2022, ECF No. 16-6 at 65.) Godfrey similarly testified that “[e]verything was covered” by Hammock's testimony though perhaps “it wasn't covered in as many words as it was in the previous trials . . . .” (App. at 2076, ECF No. 16-6 at 119.) Based on sentencing counsel's testimony and the PCR court's own comparison of the evidence presented in the various sentencing proceedings, it was not unreasonable for the PCR court to conclude that “Owens' trial counsel made the strategic decision not to elicit testimony from Hammock that was no longer relevant.” (See App. at 3589, ECF No. 16-14 at 162.)

         Owens also argues that the PCR court “erred in finding that any topics Hammock failed to cover ‘were addressed by the other mitigation witnesses at the third sentencing proceeding.' ” (Pet. at 57, ECF No. 117 at 57 (quoting App. 3590, ECF No. 16-14 at 163)). Owens submits that there was a host of evidence, all of which was presented during the PCR hearing, that neither Hammock nor any other witness testified about during Owens's third sentencing proceeding. (Pet. at 57-58, ECF No. 117 at 57-58.) However, Owens's argument takes the PCR court's finding out of context. The ineffective assistance of counsel claim that the PCR court considered centered on sentencing counsel's failure to present mitigation evidence that had previously been presented at Owens's first and second sentencing proceedings. (See Pet. at 21, ECF No. 16-14 at 160.) Thus, in the portion of the PCR court's order relied upon by Owens, the PCR court was comparing Hammock's (and the other mitigation witnesses') testimony at the third sentencing proceeding to Hammock's testimony in the first two sentencing proceedings, not Hammock's (and the other mitigation witnesses') testimony at the third sentencing proceeding to all of the evidence presented in the PCR evidentiary hearing. For example, while Hammock testified at the first two sentencing proceedings about Owens's stepfather locking him out of the house and thereby forcing him to fight children who chased Owens to beat him up, [3] she did not testify to that aspect of Owens's childhood during the third sentencing proceeding. However, Fain Maag, Owens's third-grade teacher, did testify regarding that information. Maag recalled Owens being chased by boys at school and testified that she stopped many fights when she could, but “when [Owens] got home frightened, his father [sic] would lock the door and tell him he wasn't letting him in, that he had to fight. He wanted him to grow up to be a man.” (App. at 1466-68, ECF No. 16-3 at 485-87.) Owens's argument to this Court is based on a misinterpretation of the PCR court's order, and Owens fails to show an error in the PCR court's findings when viewed in the context of the actual claim that the PCR court considered in its order.

         Likewise, Owens misinterprets the PCR court's order concerning the evidence contained in Glass's file. He claims that the PCR court “concluded that trial counsel were not ineffective for failing to present this information because they reviewed the file and ‘made a strategic decision not to present the evidence present in that file.' ” (Pet. at 54, ECF No. 117 at 54.) According to Owens, the PCR court erred as “trial counsel never testified that they reviewed Ms. Glass's file at all, much less that they made a strategic decision not to present the information in ...


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