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Owens v. Stirling

United States District Court, D. South Carolina

May 29, 2018

Freddie Owens, PETITIONER
v.
Bryan P. Stirling, Commissioner, South Carolina Department of Corrections; Willie D. Davis, Warden, Kirkland Correctional Institution, RESPONDENTS

          ORDER

          Terry L. Wooten Chief United States District Judge.

         This is a capital habeas corpus action brought pursuant to 28 U.S.C. § 2254 by Petitioner Freddie Owens against Respondents Bryan P. Stirling and Willie D. Davis (collectively, the State). For the reasons set forth below, the Court grants the State's motion for summary judgment and denies Owens' habeas petition.

         I. Factual and Procedural History

         A. Trial and First Sentencing

         Irene Graves was murdered on November 1, 1997 during an armed robbery of the Speedway convenience store where she worked in Greenville County, South Carolina. Owens was indicted in October 1998 for murder, armed robbery, possession of a firearm during the commission of a violent crime, and criminal conspiracy. He was represented by John M. Rollins Jr. and Karl B. Allen in a jury trial that began on February 8, 1999. The jury returned a guilty verdict on all counts.

         During the trial's sentencing phase, after hearing evidence and argument, the jury returned a recommendation of death on the murder conviction, finding as an aggravating circumstance that the murder was committed while in the commission of a robbery while armed with a deadly weapon. The presiding judge sentenced Owens to death for murder, thirty years consecutive for armed robbery, five years concurrent for possession of a weapon during a violent crime, and five years concurrent for criminal conspiracy.

         B. First Direct Appeal

         Owens timely appealed and was represented on appeal by Rollins, Allen, and Katherine Carruth Link, Assistant Appellate Defender with the South Carolina Office of Appellate Defense. On appeal, he raised issues relating to the trial court's jurisdiction, evidentiary rulings, the denial of a new trial, and sentencing. On September 4, 2001, the South Carolina Supreme Court affirmed his convictions, but vacated his sentence for possession of a firearm during commission of a violent crime, reversed his death sentence, and remanded for a new sentencing proceeding. State v. Owens (Owens I), 552 S.E.2d 745, 759-61 (S.C. 2001), overruled on other grounds by State v. Gentry, 610 S.E.2d 494 (S.C. 2005).

         C. Second Sentencing

         On remand, Owens was represented by Alex Kinlaw Jr. and Steve W. Sumner. At this sentencing, he waived his right to a jury and proceeded with a bench sentencing. After hearing evidence and argument, the presiding judge sentenced Owens to death.

         D. Second Direct Appeal

         Owens timely appealed and was represented on appeal by Joseph L. Savitz III, Acting Chief Attorney with the South Carolina Office of Appellate Defense. The sole issue on appeal involved the propriety of the circuit judge's colloquy with Owens regarding his jury waiver. On December 20, 2004, the South Carolina Supreme Court again reversed his death sentence and remanded for a new sentencing proceeding. State v. Owens (Owens II), 607 S.E.2d 78, 80 (S.C. 2004).

         E, Third Sentencing

         On remand, Owens was represented by Everett P. Godfrey Jr. and Kenneth C. Gibson.[1]This time, he proceeded before a jury, and after hearing evidence and argument, the jury returned a recommendation of death as to the murder conviction, finding as 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. On November 11, 2006, the presiding judge once again sentenced Owens to death.

         F. Third Direct Appeal

         Owens timely appealed and was represented on appeal by Savitz and LaNelle C. DuRant, both with the South Carolina Commission on Indigent Defense, Division of Appellate Defense. Appellate counsel raised the following issues:

1. The trial judge abused his discretion when he summarily disqualified a potential juror, Sonya Ables (Juror No. 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).

ECF No. 16-4 at 222. On July 14, 2008, the South Carolina Supreme Court affirmed his death sentence. State v. Owens (Owens III), 664 S.E.2d 80, 82 (S.C. 2008). He then submitted a petition for rehearing, which was denied.

         After the denial of Owens' petition for rehearing, his new counsel, John H. Blume and Keir M. Weyble, filed a petition for a writ of certiorari from the United States Supreme Court. On January 21, 2009, the Supreme Court denied the petition. Owens v. South Carolina, 555 U.S. 1141 (2009).

         G. First PCR Action

         Owens then submitted a pro se petition for post-conviction relief (PCR) on January 29, 2009. Weyble and Emily C. Paavola were appointed to represent Owens in the PCR proceeding. They submitted on his behalf an amended petition and then a second amended petition 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 No. 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 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 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 codefendant, 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 resentencing 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 resentencing 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 No. 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.

ECF Nos. 16-4 at 409, 16-5 at 1-6. After briefing and an evidentiary hearing, the PCR court denied his petition on February 13, 2013. ECF No. 16-14 at 140-70. He then filed a motion to alter or amend, which was also denied.

         H. First PCR Appeal

         Owens, through Weyble and Paavola, then filed a petition for a writ of certiorari to the South Carolina Supreme Court, raising 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 at 9. On June 17, 2015, the South Carolina Supreme Court denied his petition. He filed a petition for rehearing, which was also denied.

         I. Federal Habeas Action

         Owens commenced the instant action on July 27, 2015 by filing a motion for a stay of execution and a motion to appoint counsel. ECF No. 1. The Court stayed Owens' execution pending appointment of counsel and the filing of a habeas petition. ECF No. 9. On July 11, 2016, Owens' appointed counsel filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 83. The Court then stayed his execution pending resolution of his habeas petition. ECF No. 100. On September 8, 2016, he filed an amended petition. ECF No. 117. On October 18, 2016, the magistrate judge stayed the case pending resolution of a second PCR action that he filed in state court. ECF No. 124.

         J. Second PCR Action

         On July 20, 2016, shortly after Owens filed his federal habeas petition, he filed a second PCR action in state court, raising the following claims:

(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.

ECF No. 113-1 at 4-5. The PCR court denied his petition on April 10, 2017. He did not file a direct appeal. See ECF No. 143.

         K. Resumption of Federal Habeas Action

         After being informed of the conclusion of Owens' second PCR action, the magistrate judge lifted the stay in this case and briefing recommenced. ECF No. 146. In his amended petition, he 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.

ECF No. 117 at 6-7. The State filed a return to the amended petition and a second motion for summary judgment. ECF Nos. 147, 148. Owens filed a response in opposition to the summary judgment motion, ECF No. 174, and the State filed a reply, ECF No. 184.

         On January 12, 2018, the magistrate judge issued a Report and Recommendation (R&R), in which she recommended granting the State's summary judgment motion and denying Owens' petition. ECF No. 193. Owens filed objections to the R&R, ECF No. 199, and the State filed a reply to those objections, ECF No. 202. Additionally, the State filed its own objections to the R&R, [2] ECF No. 198, and Owens filed a reply to those objections, ECF No. 201.

         This matter is now ripe for decision.

         II. Standards of Review

         A. Report and Recommendation

         The magistrate judge issued her R&R in accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.). The R&R is only a recommendation to the Court and has no presumptive weight. The responsibility to make a final determination rests with the Court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court conducts a de novo determination of any portion of the R&R to which a specific objection is made, and the Court may accept, reject, or modify, in whole or in part, the magistrate judge's recommendation, or may recommit the matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1). In the absence of an objection, the Court is not required to give any explanation for adopting the recommendation. See Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983).

         B. Summary Judgment

         Summary judgment is appropriate when the materials in the record show 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). The Court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A fact is material if it “might affect the outcome of the suit under the governing law.” Id. at 248.

         The party seeking summary judgment bears the initial burden of demonstrating to the Court that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold showing, in order to survive summary judgment, the nonmoving party must demonstrate that specific, material facts exist that give rise to a genuine issue. See Id. at 324.

         C. Habeas Corpus Review

         1. Deference to state courts

         Any claim in a § 2254 petition that was adjudicated on the merits in a state court proceeding may not be granted unless the state court's 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.

28 U.S.C. § 2254(d).

         To meet this standard, the state court must have “arrive[d] at a conclusion opposite to that reached by [the United States Supreme] Court on a question of law or . . . decide[d] a case differently than [the United States Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). This is a “highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations omitted). “If this standard is difficult to meet, that it because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011).

         2. Ineffective assistance of counsel

         Criminal defendants have a constitutional right to the assistance of counsel. U.S. Const. amend. VI. “[T]he right to counsel is the right to the effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686 (1984) (citation omitted).

         To prevail on an ineffective assistance claim, a petitioner must show that (1) counsel's acts or omissions fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. See Id. at 687-88, 694. Failure of proof on either prong ends the matter. United States v. Roane, 378 F.3d 382, 404 (4th Cir. 2004). There is “a strong presumption that counsel's conduct falls within the wide range of professional assistance, ” and a petitioner has the burden of overcoming this presumption. Strickland, 466 U.S. at 689. “Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is all too tempting to second-guess counsel's assistance after conviction or adverse sentence.” Harrington, 562 U.S. at 105 (citing Strickland, 466 U.S. at 689). “The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom.” Id. (citing Strickland, 466 U.S. at 690). An ineffective assistance of counsel allegation requires the submission of specific facts in support of the claim. See United States v. Witherspoon, 231 F.3d 923, 926 (4th Cir. 2000).

         When Strickland is applied in the federal habeas context, it is an even taller hurdle to overcome. “The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 (citations omitted). “When § 2254(d) applies, the 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. However, if the petitioner demonstrates that there is no reasonable argument that counsel satisfied Strickland, then relief would be appropriate.

         3. Exhaustion and procedural default

         A habeas petitioner may not obtain relief in federal court unless he has exhausted his state court remedies. 28 U.S.C. § 2254(b)(1)(A). “To satisfy the exhaustion requirement, a habeas petitioner must fairly present his claim to the state's highest court.” Matthews v. Evatt, 105 F.3d 907, 911 (4th Cir. 1997), abrogated on other grounds by Miller-El v. Dretke, 545 U.S. 231 (2005). “To exhaust a claim, the petitioner must present the state court with ‘both the operative facts and the controlling legal principles.'” Gray v. Zook, 806 F.3d 783, 798 (4th Cir. 2015) (quoting Winston v. Kelly, 592 F.3d 535, 549 (4th Cir. 2010)).

         A petitioner's failure to raise in state court a claim asserted in a § 2254 petition “implicates the requirements in habeas of exhaustion and procedural default.” Gray v. Netherland, 518 U.S. 152, 161 (1996). “[A] habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance, ” and has therefore procedurally defaulted those claims. Coleman v. Thompson, 501 U.S. 722, 732 (1991). “[T]he procedural bar that gives rise to exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim, unless the petitioner can demonstrate cause and prejudice for the default.” Gray, 518 U.S. at 162.

         In general, a federal court will not entertain a procedurally defaulted claim as long as the state's procedural requirement barring the court's review is adequate to support the judgment and independence of federal law. See Martinez v. Ryan, 566 U.S. 1, 9-10 (2012). However, “[t]he doctrine barring procedurally defaulted claims from being heard is not without exceptions. A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law.” Id. at 10.

         A federal habeas petitioner cannot claim ineffective assistance of counsel in state postconviction proceedings to establish cause for default because there is no constitutional right to counsel in state post-conviction proceedings. See Coleman v. Thompson, 501 U.S. 722, 752 (1991). However, Martinez recognized a “narrow exception” to Coleman, specifically that “[inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” 566 U.S. at 9. The Fourth Circuit has summarized the exception recognized in Martinez as follows:

[A] federal habeas petitioner who seeks to raise an otherwise procedurally defaulted claim of ineffective-assistance-of-trial-counsel before the federal court may do so only if: (1) the ineffective-assistance-of-trial-counsel claim is a substantial one; (2) the “cause” for default “consists of there being no counsel or only ineffective counsel during the state collateral review proceeding”; (3) “the state collateral review proceeding was the initial review proceeding in respect to the ineffective-assistance-of-trial-counsel claim”; and (4) state law “requires that an ineffective-assistance-of-trial-counsel claim be raised in an initial-review collateral proceeding.”

Fowler v. Joyner, 753 F.3d 446, 461 (4th Cir. 2014) (internal brackets omitted) (quoting Trevino v. Thaler, 569 U.S. 413, 423 (2013)). Essentially, if initial-review collateral counsel was constitutionally ineffective in failing to raise the constitutional ineffectiveness of trial counsel, that ineffectiveness by collateral counsel may excuse the petitioner's procedural default of a substantial claim of trial counsel's ineffectiveness.

         III. Discussion

         Owens raised twelve grounds for relief in his habeas petition. The Court will address each one.

         A. Ground 1 - Failure to investigate and present mitigating evidence

         Ground 1 of the amended petition is as follows:

Trial counsel was ineffective at Petitioner's 2006 sentencing proceeding for failing to investigate and present available and compelling mitigating evidence.

ECF No. 117 at 6. Evaluating this claim requires consideration of the evidence sentencing counsel did present and what Owens says they should have presented.

         1. Overview of mitigation case

         Owens' mitigation case consisted of testimony from five individuals: (1) Marjorie Hammock, a social historian; (2) Fain Maag, Owens' third-grade teacher; (3) Dr. Tora Brawley, a neuropsychologist; (4) Dr. Thomas Cobb, a forensic psychiatrist; and (5) Dr. Donna Schwartz-Watts, a forensic psychiatrist.

         a. Marjorie Hammock

         Hammock testified about Owens' troubled upbringing, including that he was born to an 18-year-old woman who was unable to properly care for Owens and his four siblings, that he witnessed and personally experienced significant violence at the hands of his biological father and then his step-father, that a No. of his family members (both male and female) were very violent and served time for violent offenses, that he was removed from his house at a young age and placed in the foster system for a period of time because of abuse and neglect, that he was taught to be violent in order to survive, that he had learning disabilities that resulted in significant school difficulties, that his family lived a marginal existence in terms of economics and education, and that there is a correlation between this type of upbringing and a person who was raised in that environment turning to violence. She also explained Owens' family tree in some detail, pointing out that a significant No. of his family members had been incarcerated, that there was alcohol and drug abuse throughout the family, and that the family members had very low levels of education. See ECF No. 16-3 at 466-84.

         b. Fain Maag

         Maag testified about her experiences with Owens as his third-grade teacher. She told a story about how, on his first day of school, he threw a desk across the room and asked her what she was going to do about it. She also described how he had a very difficult time on the playground-his peers, recognizing that he was smaller than they were, would chase him around and he would run to her for help. She also testified about him frequently being chased home from school and that his step-father would lock him out of the house, telling him that he had to fight the other boys so he would grow up to be a man. His problems at home were well-known to her, as she described never having a parent-teacher conference, bringing him a turkey on Thanksgiving, and giving him Christmas gifts. She further testified about his learning deficiencies, particularly his difficulty reading and poor social skills. However, she did note that he was “one heck of a runner, ” that he was an artist, and that he used words quite well, even though he did not necessarily spell them correctly. See ECF No. 16-3 at 485-89; ECF No. 16-4 at 4-5.

         c. Dr. Tor a Brawley

         Dr. Brawley testified about her evaluation of Owens' mental abilities. She testified that his verbal memory and verbal learning were below what she would expect, and that he had a documented learning disability, problems with impulsivity, and poor attention. However, she noted that he had improved his IQ score by a significant margin through his own efforts. She testified that many of his problems were documented as early as elementary school and that there were indications that he had lifelong problems with depression. She explained that childhood depression can manifest itself as aggression, irritability, impulsivity, and resistance. She also referred to a head injury he suffered as a child, though she could not specifically point to any brain malfunction as a result of that injury. See ECF No. 16-4 at 6-18.

         d. Dr. Thomas Cobb

         Dr. Cobb testified about his impressions of Owens after treating him over the course of about one year while he was at Lieber Correctional Institution within the South Carolina Department of Corrections (SCDC) system. Dr. Cobb testified that his first interaction with Owens was when he reached out to Dr. Cobb for help because Owens had been getting in a lot of trouble in prison and wanted help staying out of trouble. Dr. Cobb said that Owens was a likeable person, was very intellectual and philosophical, and was someone Dr. Cobb enjoyed talking to. He discussed some of the troubling aspects of Owens' childhood, including that he had a rough childhood and that most or all of his family members were incarcerated.

         Dr. Cobb diagnosed Owens with Impulse Control Disorder (Not Otherwise Specified) and Anxiety Disorder (Not Otherwise Specified), and Dr. Cobb explained to the jury what those diagnoses meant. He also explained the medications that he prescribed for Owens for the purpose of allowing his mind to stay calm and give him time to think before reacting. Dr. Cobb felt that this treatment was helpful and that Owens' prognosis would continue to improve if he stayed on the medication. However, Dr. Cobb acknowledged on cross-examination that, after the medication regime started and after he had been treating Owens for about six months, he possessed in his cell a 12-inch shank and then, six weeks later, an 8½-inch shank. See ECF No. 16-4 at 18-38.

         e. Dr. Donna Schwartz-Watts

         Finally, Dr. Schwartz-Watts testified about her evaluation of Owens. She spent about ten hours with him over the course of three visits. She also reviewed a great No. of his records, including the following: Department of Juvenile Justice (DJJ) treatment records, disciplinary reports, and write-ups; SCDC disciplinary reports; and medical records (both while in custody and out of custody). She also spoke with a No. of people in his life, including his mother, Maag, Dr. Brawley, Dr. Cobb, the forensic psychiatrists at DJJ, and some of his past doctors.

         Dr. Schwartz-Watts discussed some of Owens' traumatic childhood experiences, including that he suffered physical abuse, that he witnessed his grandmother shoot a family member, that he frequently did not go to school because he wanted to stay home to check on his mother (who was physically abused by his father and step-father), and that he witnessed his step-father chase his mother through the house with a machete.

         Regarding Owens' time at DJJ, Dr. Schwartz-Watts noted that, even though he had significant disciplinary problems, he did well with the ROTC program and was promoted to the highest rank available at his campus.

         Dr. Schwartz-Watts diagnosed Owens with Attention Deficit Disorder (ADD), Dysthymic Disorder (chronic depression), and Antisocial Personality Disorder. Regarding the ADD diagnosis, she testified that he began the testing process for ADD while a child, but he never completed the full assessment and was never given any medication for it. She concluded that the ADD symptoms were in partial remission, noting that he could now pay attention and had taught himself Arabic, Swahili, and sign language, and was studying French. She also said that he was reading scholarly works and was teaching other inmates how to read. Regarding the depression diagnosis, she said that he had experienced symptoms of depression beginning at least in 1995 when he was at DJJ and that he began receiving treatment for major depression in 1997. But when he transferred to SCDC upon turning 18 years old, he was not continued on his medications even though he had significantly improved on them and wanted to continue taking them. He also asked SCDC for psychiatric help at that time, but did not receive it. However, he had improved since he began receiving treatment from Dr. Cobb. She said that Owens was still impulsive, but not as much as he had been in the past. Finally, she testified that he would be able to receive appropriate treatment while in SCDC custody. See ECF No. 16-4 at 38-79.

         2. Owens' claims

         Owens asserts that there were two primary areas of mitigation that sentencing counsel should have presented: (1) a more extensive presentation by Hammock, the social historian; and (2) evidence regarding his experiences while in DJJ.

         The gist of Owens' complaint regarding sentencing counsel's mitigation presentation is that it was too short and left out many important details. He notes in particular that Hammock's testimony was significantly shorter than it had been in the two prior sentencing proceedings. In support of his argument, he relies in large part on the PCR testimony of Dr. James Garbarino, who was admitted as an expert on the psychological effects of trauma and violence on youths. He based his testimony and opinions on various reports and other paperwork, as well as a four-hour conversation with Owens. Dr. Garbarino testified on multiple topics, including the general effects of chronic trauma on children and risk factors that increase a person's propensity to engage in violence. As to Owens in particular, Dr. Garbarino testified that Owens' risk factors included parental abandonment and neglect, living in a violent neighborhood, an extensive family history of violence, school difficulties and learning disabilities, exposure to drug and alcohol abuse, and experiencing and witnessing sexual abuse. Dr. Garbarino testified in significant detail about Owens' childhood and young adult life, which included a No. of incidences of physical and sexual abuse that Owens allegedly suffered as a child and while incarcerated in local jails, DJJ, and SCDC. However, Dr. Garbarino acknowledged on cross-examination that there was no corroborating evidence to support the sexual abuse allegations. In particular, there was no indication in any of his custodial records that Owens reported these alleged assaults to anyone. See ECF No. 16-6 at 181-286.

         3. PCR order

         In the PCR order, the judge concluded that Owens could not establish ineffective assistance of counsel because sentencing counsel “properly conducted a thorough investigation into potential mitigating evidence and chose to present evidence that it thought would favor Owens at trial.” ECF No. 16-14 at 161. The PCR court found legitimate reasons that Hammock's testimony was shorter than in the prior sentencing hearings, including that part of her prior testimony was no longer relevant. Id. at 162. The PCR court further found that Owens was not prejudiced by any omissions from her testimony, as the other witnesses addressed those topics that she did not.

         As to the evidence regarding Owens' experiences at DJJ, the PCR court noted that “[a]lthough Owens met with six defense attorneys, two mitigation investigators, one private investigator, and a No. of mental health experts before meeting with Garbarino in 2009, he failed to inform any of these individuals of this alleged abuse.” ECF No. 16-14 at 164. The PCR court further noted that there were no records to support the allegations of abuse. Id. The PCR court also credited sentencing counsel's testimony about why they did not want to present mitigation evidence regarding Owens' time at DJJ, specifically finding that doing so “would have come at the great cost of opening the door for the State to introduce evidence that would characterize Owens as a consistently violent criminal who would be a future danger to society and who would not adapt well to prison.” Id. at 166.

         4. R&R

         In the R&R, the magistrate judge concluded that the PCR court's analysis regarding Hammock's testimony did not involve an unreasonable application of federal law on either Strickland factor. In particular, the magistrate judge noted that sentencing counsel's PCR testimony “reveal[ed] careful planning, which incorporated Hammock's own analysis of how effective her past testimony had been.” ECF No. 193 at 22. The magistrate judge further concluded that “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.'” Id. at 23 (quoting ECF No. 16-14 at 162). The magistrate judge also found that “there is support in the record for the PCR court's finding that sentencing counsel presented a cogent mitigation case through their five witnesses.” Id. at 28. Finally, the magistrate judge found that “[t]he PCR court did not unreasonably misapply federal law in finding [Owens] was not prejudiced by any alleged failure on sentencing counsel's part.” Id. at 29.

         Regarding the DJJ evidence, the magistrate judge again concluded that the PCR court's analysis did not involve an unreasonable application of federal law regarding either Strickland factor. The magistrate judge recognized that sentencing counsel were aware, at least to some extent, of Owens' experiences while in DJJ, noting sentencing counsel's testimony at the PCR hearing that “[w]e were clearly looking at that. Dr. Schwartz-Watts had his DJJ records. [Owens] was at DJJ at a time when DJJ in Columbia was a mess.” Id. at 31 (quoting ECF No. 16-6 at 105). The magistrate judge also noted sentencing counsel's testimony that he reviewed Owens' DJJ records, but that he viewed them as a “two-edge sword” because he “wasn't particularly happy with the reason why he was in DJJ.” Id. (citing ECF No. 16-6 at 106-07).

         The magistrate judge also recognized some apparent confusion in the PCR order regarding its discussion of Dr. Garbarino's testimony, [3] but determined that the PCR order's conclusion was not based solely on that finding and that the overall conclusion was amply supported by the record. Id. at 32-34. Thus, the magistrate judge concluded that “the PCR court's ultimate conclusion that sentencing counsel were not deficient was not ‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Id. at 34 (quoting 28 U.S.C. § 2254(d)(2)).

         5. Objections

         In Owens' objections, he argues that the R&R erroneously concluded that sentencing counsel were not ineffective. He asserts that there was “reasonably available and readily accessible” evidence that should have been presented at sentencing that “was lurid, compelling and humanizing.” ECF No. 199 at 4. Specifically, he argues that sentencing counsel should have presented evidence regarding his homosexual prostitution and sexual abuse, as well as physical abuse he suffered in utero and as a child.

         Owens relies in large part on Dr. Garbarino's PCR testimony. But, as noted above, Dr. Garbarino only became involved in the case after sentencing, so his testimony would not have been available to sentencing counsel. Thus, it appears that Owens' argument is that the facts underlying Dr. Garbarino's testimony, not his testimony itself, should have been offered in mitigation.

         Owens also references an incident in September 1997 (shortly after his release from SCDC custody, but before the Graves murder) where Reverend Thomas Davenport “was cruising the street looking for sex with a male, ” and was shot twice in the head from inside his vehicle, implicitly by Owens. Reverend Davenport survived the shooting. Owens says that an arrest warrant that was issued for him for that incident was closed after his arrest for the Graves murder. He says that sentencing counsel should have investigated this incident further for presentation at sentencing. Id. at 9.

         He summarizes his objection by asserting that he was prejudiced by sentencing counsel's failure to introduce a more vivid picture of his life history because doing so would have created a reasonable ...


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