United States District Court, D. South Carolina, Anderson/Greenwood Division
REPORT AND RECOMMENDATION OF MAGISTRATE
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Respondent's motion for
summary judgment. [Doc. 16.] Petitioner is a state prisoner
who seeks relief under 28 U.S.C. § 2254. Pursuant to the
provisions of 28 U.S.C. § 636(b)(1)(B), and Local Civil
Rule 73.02(B)(2)(c), D.S.C., this magistrate judge is
authorized to review post-trial petitions for relief and
submit findings and recommendations to the District Court.
filed this Petition for writ of habeas corpus on July 10,
2018. [Doc. 1.] On September 21, 2018,
Respondent filed a return and memorandum to the Petition and
a motion for summary judgment. [Docs. 15; 16.] The same day,
the Court filed an Order pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), advising
Petitioner of the summary judgment procedure and of the
possible consequences if he failed to adequately respond to
the motion. [Doc. 17.] On October 25, 2018, Petitioner's
response in opposition was entered on the docket [Doc. 19],
and on October 30, 2018, Respondent filed a reply [Doc. 21].
Petitioner's objection to the reply was entered on the
docket on November 28, 2018. [Doc. 22.]
carefully considered the parties' submissions and the
record in this case, the Court recommends Respondent's
motion for summary judgment be granted.
is confined in the Perry Correctional Institution pursuant to
an order of commitment of the Spartanburg County Clerk of
Court. [Doc. 1 at 1.] In October 2010, Petitioner was
indicted for murder. [App. 795-96. On November 28, 2011,
represented by Brendan Delaney, Petitioner proceeded to a
jury trial. [App. 1-596.] On December 1, 2011, Petitioner was
found guilty and sentenced to life imprisonment. [App.
appealed. Wanda H. Carter of the South Carolina Commission on
Indigent Defense filed a final brief of appellant on
Petitioner's behalf in the South Carolina Court of
Appeals, dated August 27, 2013, raising the following issue:
The trial judge erred in denying appellant's request for
a self-defense charge at trial because appellant's case
was similar to State v. Light, 378 S.C. 641, 664
S.E.2d 465 (2008), and other cases where imminent danger
existed and there was no other means of avoiding said danger
other than to act in self-defense.
[App. 600.] The South Carolina Court of Appeals affirmed the
conviction in an unpublished opinion that was submitted on
January 1, 2014, and filed on April 16, 2014. [App. 646-47.]
Remittitur was issued on May 2, 2014. [App. 648.]
proceeding pro se, filed an application for post-conviction
relief (“PCR”) on June 13, 2014. [App. 650-56.]
The PCR application alleged Petitioner was being held in
custody unlawfully based on the following grounds:
(a) In[ef]fective Assi[s]tance of Cou[nse]l
(b) Due Process violations
[App. 652.] The State filed a return dated November 18, 2014.
hearing was held on January 11, 2016, and Petitioner was
represented at the hearing by J. Brandt Rucker. [App.
662-766.] On July 18, 2016, the PCR court filed an order
denying and dismissing the PCR application with prejudice.
[App. 777-93.] The PCR court's order addressed
Petitioner's allegations of ineffective assistance of
counsel for (a) failing to suppress Petitioner's
statements to police, (b) failing to adequately consult with
Petitioner before trial and prepare for trial, (c) failing to
request a jury charge on accident and object to taking the
self-defense charge off the table, and (d) failing to object
to the solicitor's closing argument. [App. 781-92.]
appealed. Laura R. Baer (?Baer”) of the South Carolina
Commission on Indigent Defense filed on Petitioner's
behalf a Johnson petition for writ of certiorari in the
Supreme Court of South Carolina, dated October 25, 2017.
[Doc. 15-3.] The petition asserted the following as the sole
Whether the PCR court erred in finding that trial counsel
rendered constitutionally effective assistance of counsel
where he failed to object to the solicitor's improper
comments during closing argument?
[Id. at 3.] At the same time she filed the
Johnson petition, Baer submitted a petition to be
relieved as counsel. [Id. at 13.] Petitioner filed a
pro se response. [Doc. 15-4.] The pro se response asserted
that trial counsel gave Petitioner erroneous advice not to
testify, failed to object to jury charges, never came to talk
to Petitioner before trial, and failed to investigate the
case before trial. [Id.] On June 14, 2018, the
Supreme Court of South Carolina denied the petition and
granted counsel's request to withdraw. [Doc. 15-5.]
Remittitur was issued on July 2, 2018. [Doc. 15-6.]
for Writ of Habeas Corpus
filed this Petition for writ of habeas corpus on July 10,
2018. [Doc. 1.] Petitioner raises the following ground for
relief, quoted substantially verbatim, in his Petition
pursuant to 28 U.S.C. § 2254:
GROUND ONE: Petitioner was denied a fair
trial when the trial court denied Petitioner's request to
instruct the jury on self-defense
Supporting facts: Petitioner was in imminent danger
and feared for his life as any reasonably prudent man would
have feared if placed in such a position, Petitioner acted
properly in self-defense when he was confronted by the
decedent Rebecca Rose with whom Petitioner had two children.
Rosa advanced toward Petitioner while she held and swung a
knife and yelled ?f--- you” and actually cut Petitioner
while swinging the knife.
GROUND TWO: THE STATE COURT UNREASONABLY
APPLIED STRICKLAND V. WASHINGTON, 466 U.S. 668 (1984) to
Supporting facts: The State PCR Court and subsequent
reviewing courts erred in finding trial counsel rendered
constitutionally effective assistance where counsel failed to
object to the solicitor's improper closing argument that
denied Petitioner a fair trial. See App. 547, l.20-22; p.549,
l.4-6; p.558, l.6-7; p.558, l.25-p.559, l.4; App. 547,
l.23-p.548; App.549, l.1; App.506, l.9-15.
GROUND THREE: COUNSEL RENDERED INEFFECTIVE
ASSISTANCE BY FAILING TO OBJECT WHEN THE TRIAL COURT FAILED
TO INSTRUCT THE JURY ON ?CRIMINAL INTENT” THE ESSENTIAL
ELEMENT OF MURDER.
Supporting facts: Murder in South Carolina is a
crime of ?specific intent” and ?criminal intent”
is an essential element of the crime of murder. During the
trial court's instruction to the jury regarding murder
App.568-p.590 the trial court used multiple references to the
essential element of the crime of murder as being ?a state of
mind” and having ?the intent”, and ?intent”
refers to the ?state of mind”, and an ?intent” to
kill”, being a ?state of mind” but the Court
never instructed the jury on ?criminal intent” and
counsel utterly failed to object and/or request the
GROUND FOUR: COUNSEL RENDERED INEFFECTIVE
ASSISTANCE BY FAILING TO OBJECT WHEN THE COURT FAILED TO
INSTRUCT THE JURY THAT ?THE FACT PETITIONER DID NOT
TESTIFY” COULD NOT BE USED AGAINST HIM, i.e., RIGHT TO
Supporting facts: Petitioner was denied the
effective assistance of counsel when counsel failed to object
when the trial court failed to instruct the jury that
Petitioner has a right to remain silent and the fact
?Petitioner did not testify” could not be used against
him and in no way should be discussed or used against him
during deliberations. This denied Petitioner a fair trial.
See App.87, l.5-p.88, l.5 and App.559, l.6-562, l.25.
[Doc. 1 at 5-10.] As stated, on September 21, 2018,
Respondent filed a motion for summary judgment. [Doc. 16.] On
October 25, 2018, Petitioner's response in opposition was
entered on the docket [Doc. 19], and on October 30, 2018,
Respondent filed a reply [Doc. 21]. Petitioner's
objection to the reply was entered on the docket on November
28, 2018. [Doc. 22.] Accordingly, the motion for summary
judgment is ripe for review.
Construction of Pro Se Petition
brought this action pro se, which requires the Court to
liberally construe his pleadings. Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S.
519, 520 (1972) (per curiam); Loe v. Armistead, 582
F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke,
574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are
held to a less stringent standard than those drafted by
attorneys. Haines, 404 U.S. at 520. Even under this
less stringent standard, however, the pro se petition is
still subject to summary dismissal. Id. at 520-21.
The mandated liberal construction means only that if the
court can reasonably read the pleadings to state a valid
claim on which the petitioner could prevail, it should do so.
Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir.
1999). A court may not construct the petitioner's legal
arguments for him. Small v. Endicott, 998 F.2d 411,
417-18 (7th Cir. 1993). Nor should a court “conjure up
questions never squarely presented.” Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
of the Federal Rules of Civil Procedure states, as to a party
who has moved for summary judgment:
The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). A fact is “material” if
proof of its existence or non-existence would affect
disposition of the case under applicable law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue
of material fact is “genuine” if the evidence
offered is such that a reasonable jury might return a verdict
for the non-movant. Id. at 257. When determining
whether a genuine issue has been raised, the court must
construe all inferences and ambiguities against the movant
and in favor of the non-moving party. United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962).
party seeking summary judgment shoulders the initial burden
of demonstrating to the court that there is no genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Once the movant has made this threshold
demonstration, the non-moving party, to survive the motion
for summary judgment, may not rest on the allegations averred
in his pleadings. Id. at 324. Rather, the non-moving
party must demonstrate specific, material facts exist that
give rise to a genuine issue. Id. Under this
standard, the existence of a mere scintilla of evidence in
support of the non-movant's position is insufficient to
withstand the summary judgment motion. Anderson, 477
U.S. at 252. Likewise, conclusory allegations or denials,
without more, are insufficient to preclude granting the
summary judgment motion. Id. at 248. “Only
disputes over facts that might ...