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Barton v. Lewis

United States District Court, D. South Carolina, Beaufort Division

March 29, 2019

Bobby Joe Barton, Petitioner,
v.
Scott Lewis, Warden, Respondent.

          ORDER

          R. Bryan Harwell, United States District Judge

         This matter is before the Court on the Report and Recommendation (“R&R”) of United States Magistrate Judge Bristow Marchant.[1] [ECF No. 54]. The Magistrate Judge recommends the Court grant Respondent's second motion for summary judgment [ECF No. 29] and dismiss Petitioner's pro se petition under 28 U.S.C. § 2254 (the “§ 2254 petition”) [ECF No. 1] with prejudice. Also pending is Petitioner's motion for a certificate of appealability [ECF No. 63].

         Background [2]

         Petitioner[3], a state inmate at the SCDOC's Perry Correctional Institution, brings this action pro se for a writ of habeas corpus by a person in state custody against Respondent. See Pet. at 1 [ECF No. 1].

         A. State Court Proceedings

         On August 10, 2010, Petitioner was convicted in South Carolina state court of armed robbery and sentenced to twenty-five years of imprisonment. R&R at 2; Verdict [ECF No. 30-1]; Trial Tr. at 267:10-12, 275:9 [ECF No. 30-2]. At trial, he was represented by attorney Susannah C. Ross (“trial counsel”). R&R at 2. On direct appeal, he was represented by attorney Lanelle Cantey Durant of the South Carolina Commission on Indigent Defense (“direct appeal counsel”). Id. The South Carolina Court of Appeals affirmed his conviction and sentence. Id. at 3; Ct. of Appeals Op. [ECF No. 30-5]. The South Carolina Supreme Court denied his petition for writ of certiorari. R&R at 3; Order Denying Writ [ECF No. 30-8].

         Subsequently, Petitioner filed an application for post-conviction relief (“PCR”) in state circuit court, raising as grounds: (1) ineffective assistance of trial counsel; (2) ineffective assistance of direct appeal counsel; (3) procedural due process; (4) prosecutorial misconduct; and (5) judicial misconduct. R&R at 3-4; Appl. for PCR [ECF Nos. 30-9, 30-10, 30-15]. Attorney Caroline Horlbeck (“PCR counsel”) represented Petitioner during an evidentiary hearing on his PCR application, which the PCR judge denied. R&R at 4; Evidentiary Hr'g Tr. [ECF No. 30-17]; Order of Dismissal [ECF No. 30-18]. PCR counsel was relieved, and attorney R. Mills Arial, Jr. (also “PCR counsel”), who was subsequently appointed to represented Petitioner, filed a motion to reconsider [ECF No. 30-20], which was denied. R&R at 4; J. on Mot. to Recons. [ECF No. 30-21]. Petitioner then filed a motion to relieve counsel and for permission to proceed pro se. R&R at 4; Mot. to Relieve Counsel [ECF No. 30-22]. After warning Petitioner of the dangers of proceeding pro se and the advantages of allowing counsel to continue representing him, the South Carolina Supreme Court granted Petitioner's motion. R&R at 4; Orders [ECF Nos. 30-24, 30-25].

         On September 15, 2016, Petitioner filed a pro se motion challenging the accuracy of his PCR transcript. R&R at 5; Mot. Challenging PCR Tr. [ECF No. 30-26]. The South Carolina Supreme Court remanded the matter to the PCR judge for a hearing to determine the transcript's accuracy. R&R at 5; Remand Order [ECF No. 27]. The PCR judge determined there were no inaccuracies. R&R at 5; Hr'g on Mot. Challenging PCR Tr. [ECF No. 30-28]. Subsequently, Petitioner appealed the PCR court's order, raising four grounds alleging the PCR court erroneously rejected his claims that: (1) trial counsel was ineffective for failing to convey a formal plea offer, keep Petitioner reasonably informed of his case, and explain the plea offer so he could make an informed decision; (2) trial counsel was ineffective for failing to object to inadmissible evidence about prior convictions; (3) the prosecution knowingly used perjured testimony by prosecution witness Patricia Rice (“Rice”); and (4) the prosecution failed to tell investigators that they must not use Petitioner's arrest mug shot in its photo array. R&R at 5; Pet. for Cert. [ECF No. 30-30]. On February 15, 2018, the South Carolina Supreme Court denied a petition for writ of certiorari [ECF No. 30-32], and remittitur was filed with the state trial court on March 7, 2018 [ECF No. 30-33]. R&R at 5-6.

         B. Federal Habeas Proceedings

         On or about March 14, 2018[4], Petitioner timely filed his § 2254 petition, raising seventeen grounds.[5] Pet. at 5-11, 14-18; Resp. in Opp'n to Summ. J. at 2-5 [ECF No. 44]. On July 5, 2018, Respondent filed the instant second motion for summary judgment. [ECF No. 29]. On or about November 2, 2018, after receiving three extensions of time, Petitioner filed a response in opposition [ECF No. 44], and on November 9, 2018, Respondent filed a reply thereto. [ECF No. 46]. On or about November 19, 2018, Petitioner filed a sur reply, which he subsequently supplemented twice. [ECF Nos. 48, 50, 51].

         On December 11, 2018, the Magistrate Judge issued an order denying Petitioner's requests for a court-appointed attorney and an evidentiary hearing. [ECF No. 53]. On the same date, the Magistrate Judge issued the R&R, recommending the Court grant Respondent's second motion for summary judgment and dismiss the case with prejudice because: (1) the issues raised in grounds one through five were adjudicated on the merits in state court, the state court's decisions on those issues were not contrary to or an unreasonable application of clearly established federal law, and the decisions were not unreasonable determinations of the facts in light of the evidence presented, [R&R at 8-33]; and (2) Petitioner procedurally defaulted on the issues raised in grounds six through seventeen because he failed to properly pursue them in state court and he cannot overcome the defaults. R&R 33-36. The Magistrate Judge specifically advised the parties of the procedure for filing objections to the R&R and the consequences if they failed to do so. R&R at 52-53.

         On or about February 11, 2019, after receiving two extensions of time, Petitioner timely filed objections to the R&R. [ECF No. 62]. On the same date, Petitioner filed the pending motion for a certificate of appealability. [ECF No. 63]. The matters are now ripe for the Court's consideration.

         Standards of Review

         A. R&R

          The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge's recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The Court must conduct a de novo review of those portions of the R&R to which specific objections are made, and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). However, the Court need not conduct a de novo review of “general and conclusory objections that do not direct the [C]ourt to a specific error in the [M]agistrate [Judge]'s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of specific objections to the R&R, the Court reviews only for clear error. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

         B. Section 2254 Petition

         The scope of a federal court's review of a habeas petition under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) is “highly constrained.” Lawrence v. Branker, 517 F.3d 700, 707 (4th Cir. 2008). The Court cannot grant a § 2254 petition “with respect to any claim adjudicated on the merits in state court” unless the state court decision was “either contrary to, or an unreasonable application of, clearly established federal law as determined by the [United States] Supreme Court, ” id. (citing 28 U.S.C. § 2254(d)(1)), or if the decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Richey v. Cartledge, 653 Fed.Appx. 178, 184 (4th Cir. 2016) (per curiam) (citing 28 U.S.C. § 2254(d)(2)). The Court “must presume state court findings of fact to be correct unless the petitioner rebuts that presumption by clear and convincing evidence.” Id. (citing 28 U.S.C. § 2254(e)(1)).

         Objections

          In his objections, Petitioner asserts the Magistrate Judge erred in: (1) concluding Petitioner failed to present anything other than conclusory allegations as to his claim that his counsel was ineffective, Objs. at 3; (2) rejecting Petitioner's claim that trial counsel was ineffective for failing to convey a plea offer to him, Objs. at 7; (3) speculating that trial counsel had a legitimate tactical reason for failing to object to Rice's testimony where she blurted out, “he had already been incarcerated for something else . . . . He had made time for that!” Objs. at 15; (4) rejecting Petitioner's prosecutorial misconduct claim that the prosecutor knowingly used perjured testimony and failed to correct it, Objs. at 19; (5) rejecting Petitioner's prosecutorial misconduct claim that the prosecutor failed to tell investigators that they must not use Petitioner's arrest mug shot in their photo array lineup, Objs. at 28; (6) characterizing Petitioner's claim that he was denied the right to confront an adverse witness whose non-live testimony was used in trial as an ineffective assistance of counsel claim, Objs. at 33-34; (7) misconstruing Petitioner's claim that trial counsel failed to object to the prosecutor's closing statements, Objs. at 36; (8) rejecting Petitioner's claim that the 25-page limit for state appellate court briefs prejudiced him, Objs. at 41; (9) misconstruing that a mug-shot magazine was brought to light in Petitioner's state court hearing because the magazine was not admitted into evidence and any reference to it violated the rules of evidence, id.; and (10) denying Petitioner's request for appointment of counsel and an evidentiary hearing, Objs. at 43.

         Petitioner also makes several objections related to the R&R's findings on Petitioner's PCR counsel, claiming the Magistrate Judge erroneously rejected Petitioner's claim that PCR counsel failed to raise ineffective-assistance-of-counsel claims against trial counsel for: (1) creating a conflict of interest, Objs. at 44; (2) failing to call prosecutor Mark Moyer as a witness to testify about a conversation he had with Rice while outside the presence of her attorney, Objs. at 46; (3) failing to investigate the circumstances of the case and possible witnesses present during the crime, Objs. at 48; (4) failing to put up a defense at trial, Objs. at 49; (5) failing to put the State's case to an adversarial testing, Objs. at 51; (6) failing to raise and argue a motion for an evidentiary hearing and motion to suppress a deadly weapon prior to trial, Objs. at 55; (7) advising Petitioner to not testify at trial, Objs. at 56; and (8) failing to allege the prosecutor violated ethical rules and Petitioner's due process, Objs. at 58.

         The Court notes Petitioner has not made specific objections to the R&R as required by 28 U.S.C. § 636(b)(1). His objections are general or merely rehash the same arguments made in his petition and response in opposition to Respondent's second motion for summary judgment. However, in an abundance of caution, the Court carefully reviews his objections and conducts a de novo review of Petitioner's grounds.

         Discussion

         A. Grounds One through Five (Claims Adjudicated on the Merits)

         “Before seeking federal habeas review of a claim, a petitioner ordinarily must raise that claim in the state court, complying with state procedural rules and exhausting available state remedies.” Gray v. Zook, 806 F.3d 783, 797-98 (4th Cir. 2015). “[I]f a claim is exhausted in state court and not procedurally defaulted, then it was adjudicated on the merits and is subject to review under the deferential standards set forth in [28 U.S.C.] § 2254(d).” Id.

         The Court cannot grant habeas relief on the following claims unless the state court decision was “either contrary to, or an unreasonable application of, clearly established federal law as determined by the [United States] Supreme Court, ” Lawrence, 517 F.3d at 707 (citing 28 U.S.C. § 2254(d)(1)), or if the decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Richey, 653 Fed.Appx. at 184 (citing 28 U.S.C. § 2254(d)(2)).

         1. Ground One: Trial court erred in denying motion to suppress victim's identification of Petitioner because photo lineup was unreliable and unduly suggestive

         Petitioner presented this claim on direct appeal, and the South Carolina Court of Appeals rejected it, holding the trial court properly denied the motion to suppress. See Ct. of Appeals Op. [ECF No. 30-5 at 4-5]. The trial court held a hearing on the photo lineup pursuant to Neil v. Biggers, 409 U.S. 188 (1972). At a Biggers hearing, the trial court must assess the reliability of a victim's identification of a suspect via a photographic lineup. See State v. Liverman, 727 S.E.2d 422, 426 (S.C. 2012) (citing Biggers, 409 U.S. at 198) (recognizing two-pronged inquiry to determine whether due process requires suppression of an eyewitness identification: (1) “whether the identification resulted from unnecessary and unduly suggestive police procedures”; and (2) “if so, whether the out-of-court identification was nevertheless so reliable that no substantial likelihood of misidentification existed”). During Petitioner's Biggers hearing, an issue arose about a mug-shot magazine featuring Petitioner's mug shot that the victim had allegedly seen prior to identification. See Trial Tr. 40:4-89:5. The trial court determined that the magazine was inadmissible and caused no Biggers issue because the magazine was not the result of governmental action. Id. at 88:6-89:2.

         Later, during the PCR proceedings, Petitioner claimed that trial counsel was ineffective because she mentioned the magazine twenty-five time and the prosecutor mentioned it eight times when the magazine had been ruled inadmissible. At the PCR hearing, trial counsel testified that she had mentioned the magazine to discredit the lineup and the victim's identification. The PCR court found this testimony credible and further found that Petitioner failed to meet his burden of proving trial counsel should have objected to any mention of the magazine since it was part of trial counsel's defense and she had a valid strategic reason for ...


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