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Mangal v. Warden, Perry Correctional Institution

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

April 8, 2019

Farid Ahmad Mangal, a/k/a Farid Ahmad Maugal, Petitioner,
v.
Warden, Perry Correctional Institution, Respondent.

          ORDER

          R. Bryan Harwell United States District Judge.

         Petitioner Farid Ahmad Mangal, a state prisoner proceeding pro se and in forma pauperis, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See ECF No. 1. The matter is before the Court for consideration of Petitioner's objections to the Report and Recommendation (“R & R”) of United States Magistrate Judge Kevin F. McDonald, who recommends granting Respondent's motion for summary judgment and denying Petitioner's § 2254 petition.[1] See ECF Nos. 52 & 59. The Court adopts in part and rejects in part the R & R for the reasons explained herein.

         Background[2]

         The State of South Carolina indicted Petitioner for criminal sexual conduct with a minor, lewd act upon a child, and incest, alleging he sexually abused his daughter from ages ten to sixteen. See generally ECF No. 20-39 (indictments and warrants). Petitioner proceeded to trial in 2007 and was represented by attorney Lawrence W. Crane (“trial counsel”); the jury found him guilty of all charges; and the trial court sentenced him to thirty years in prison.[3] See App.[4] 1-555. Petitioner filed a direct appeal, and the South Carolina Court of Appeals summarily affirmed his convictions and sentences in an unpublished opinion. See ECF Nos. 20-11 through 20-16. The South Carolina Supreme Court denied certiorari to review the Court of Appeals' decision. See ECF Nos. 20-17 through 20-20.

         Petitioner then filed a pro se application for post-conviction relief (“PCR”) in state court. See App. 557-62. In April 2011, the PCR court held an evidentiary hearing at which Petitioner-represented by attorney J. Falkner Wilkes (“PCR counsel”)-and trial counsel testified. App. 568-615. The PCR court denied and dismissed Petitioner's application in a written order. App. 616-622; ECF No. 20-21. Petitioner filed a motion to alter or amend pursuant to Rule 59(e) of the South Carolina Rules of Civil Procedure, App. 623-33, and the PCR court issued a written order denying the motion. App. 639-40. Petitioner appealed, and the South Carolina Court of Appeals reversed the PCR court's decision and remanded the case for a new trial. App. 680-88; see Mangal v. State, 781 S.E.2d 732 (S.C. Ct. App. 2015) (“Mangal I”) (holding trial counsel was ineffective for not objecting to improper bolstering testimony). However, the South Carolina Supreme Court granted the State's petition for a writ of certiorari, found Petitioner's PCR claim was procedurally defaulted, reversed the Court of Appeals' decision, and reinstated the PCR court's decision. ECF No. 20-34; see Mangal v. State, 805 S.E.2d 568 (S.C. 2017) (“Mangal II”) (finding it inappropriate to excuse Petitioner's procedural default).

         Petitioner then filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See ECF No. 1. Respondent answered by filing a return and a motion for summary judgment. See ECF Nos. 20 & 21. Petitioner filed a response in opposition to Respondent's motion. See ECF No. 34. The Magistrate Judge issued an R & R recommending that the Court grant Respondent's motion and deny Petitioner's § 2254 petition. See R & R [ECF No. 52]. Petitioner filed timely objections to the R & R. See Pet.'s Objs. [ECF No. 59]. Respondent did not respond to Petitioner's objections.

         Legal Standards

         I. Review of the Magistrate Judge's 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 it 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).

         The Court must engage in a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Id. However, the Court need not conduct a de novo review when a party makes only “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 & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court need not give any explanation for adopting the Magistrate Judge's recommendation. Camby v. Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).

         II. 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); see generally Rule 12 of the Rules Governing Section 2254 Cases (“The Federal Rules of Civil Procedure . . ., to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.”); Brandt v. Gooding, 636 F.3d 124, 132 (4th Cir. 2011) (“Federal Rule of Civil Procedure 56 ‘applies to habeas proceedings.'” (quoting Maynard v. Dixon, 943 F.2d 407, 412 (4th Cir. 1991))). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . .; or (B) 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). “The evidence must be viewed in the light most favorable to the non-moving party, with all reasonable inferences drawn in that party's favor. The court therefore cannot weigh the evidence or make credibility determinations.” Reyazuddin v. Montgomery Cty., 789 F.3d 407, 413 (4th Cir. 2015) (internal citation and quotation marks omitted).

         Discussion

         Petitioner alleges trial counsel was ineffective by failing to object to and by eliciting testimony that improperly bolstered the victim's credibility.[5] The Magistrate Judge recommends granting Respondent's motion for summary judgment because Petitioner's claims are procedurally defaulted and because the default cannot be excused under Martinez v. Ryan, 566 U.S. 1 (2012). See R & R at pp. 17-39. Petitioner specifically objects to the Magistrate Judge's recommendation that his default cannot be excused under Martinez, and he requests an evidentiary hearing on his Martinez claims. See Pet.'s Objs. at pp. 2-9.

         I. Applicable Law

         A. Procedural Default & The Martinez Exception

         “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.[6]

         However, “[u]nder the well-established doctrine of procedural default, a federal habeas court may not review a claim that a state court has found to be clearly and expressly defaulted under an independent and adequate state procedural rule unless the prisoner can demonstrate [1] cause for the default and prejudice resulting therefrom or [2] that a failure to consider the claims will result in a fundamental miscarriage of justice.” Juniper v. Zook, 876 F.3d 551, 565 n.6 (4th Cir. 2017).

         In Martinez, the U.S. Supreme Court held that “[i]nadequate 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. “Martinez is an exception that enables habeas petitioners to obtain merits review of otherwise procedurally defaulted claims under certain circumstances.” Teleguz v. Zook, 806 F.3d 803, 815 (4th Cir. 2015).[7]

         When a state-such as South Carolina[8]-limits ineffective-assistance-of-trial-counsel claims to collateral review, a petitioner may invoke Martinez if he can demonstrate (1) that state PCR counsel “was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 (1984), ” and (2) that the underlying ineffective-assistance-of-trial-counsel claim is “substantial.” Buck v. Davis, 137 S.Ct. 759, 771 (2017); see Porter v. Zook, 898 F.3d 408, 438 (4th Cir. 2018). The Fourth Circuit has expounded on the requirement of a “substantial” claim:

Regarding the requirement that there be a “substantial” claim, the Supreme Court held that a prisoner must “demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.” Martinez, 132 S.Ct. at 1318. Relatedly, to show ineffective assistance, the petitioner must make a “substantial” showing with respect to both counsel's competency (first-prong Strickland) and prejudice (second-prong Strickland).
As to the specific elements of the ineffective assistance claim, a petitioner must make a substantial showing of incompetency, i.e., that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Further, the petitioner must make a substantial showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable, i.e., that there was a substantial, not just conceivable, likelihood of a different result.

Teleguz, 806 F.3d at 815 (ellipsis, some internal quotation marks, and some internal citations omitted). Significantly, “because a petitioner raising a Martinez claim never presented the claim in state court, a federal court considers it de novo, rather than under AEDPA's deferential standard of review.” Gray, 806 F.3d at 789.[9]

         B. Strickland Test

         Claims of ineffective assistance of counsel must be reviewed under the two-part test enunciated in Strickland v. Washington, 466 U.S. 668 (1984). First, a petitioner must show counsel's performance was deficient and fell below an objective standard of reasonableness. Id. at 687-88. Second, the petitioner must show prejudice, meaning “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

         In sum, “[a] prisoner petitioning for habeas relief based on ineffective assistance of counsel must meet two components: a petitioner must show [1] that counsel's performance was deficient, and [2] that the deficiency prejudiced the defense.” Williams v. Stirling, 914 F.3d 302, 312 (4th Cir. 2019) (internal quotation marks and original brackets omitted).

         II. Analysis

         Petitioner's ineffective assistance claims concern three trial witnesses: (1) forensic interviewer Wiley Garrett, (2) pediatrician Dr. Nancy Henderson, and (3) the victim's mother Diane Farid. Petitioner alleges trial counsel was ineffective by failing to object to and by eliciting certain testimony from these three witnesses that had the effect of improperly bolstering the victim's credibility.[10]Petitioner faults PCR counsel for failing to properly raise these ineffective-assistance-of-trial-counsel claims in the state proceedings, and thus seeks to bring them in this federal Court pursuant to Martinez.

         As the Magistrate Judge correctly explains, the opinions of the South Carolina Supreme Court and the South Carolina Court of Appeals make clear that Petitioner's claims are defaulted under South Carolina procedural rules governing issue preservation and presentation of issues to a PCR court.[11] See Juniper, 876 F.3d at 565 n.6 (explaining the standard for procedural default). Moreover, Petitioner does not object to the Magistrate Judge's conclusion that the claims are procedurally defaulted. Instead, he asserts “[t]he procedural bar should be lifted” pursuant to Martinez. Pet.'s Objs. at pp. 7-8.

         Again, to overcome the procedural default and for this Court to review his claims of ineffective assistance of trial counsel under Martinez, Petitioner must show (1) that the claims are substantial (i.e., have “some merit”) and (2) that PCR counsel was ineffective for failing to raise them in the state PCR proceedings. Buck, 137 S.Ct. at 771. The Court will consider each requirement in turn, beginning with the ineffective-assistance-of-trial-counsel claims. Cf. Juniper v. Zook, 117 F.Supp.3d 780, 791 (E.D. Va. 2015) (“If an underlying trial-ineffectiveness claim has no merit, then it fails not only under Martinez's first element, but also the second element, because [PCR] counsel could not have been ineffective for failing to raise a meritless claim.”).

         A. Whether Trial Counsel Was Ineffective

         1. Summary of Underlying Facts

         “The facts surrounding Mangal's sex crimes are set forth in detail in the court of appeals' opinion.” Mangal II, 805 S.E.2d at 569; see Mangal I, 781 S.E.2d at 733-34. The R & R also summarizes much of the testimony presented at Petitioner's 2007 trial. See R & R at pp. 2-5. In brief,

[T]he victim-Mangal's nineteen-year-old daughter-testified Mangal had been sexually assaulting her since she was ten years old. She described where, when, and how it happened. On cross-examination, trial counsel questioned the victim about inconsistencies in her testimony and suggested she had a motive to lie about the sexual abuse-to gain freedom from Mangal's strict parenting. Mangal testified in his defense and claimed the victim and her mother fabricated the allegations.

Mangal II, 805 S.E.2d at 569-70. “Trial counsel's theory of the case was that Victim and [her] mother (Mother) fabricated the abuse allegations because Victim wanted freedom from Petitioner's strict parenting and Mother wanted to continue having an extra-marital affair.” Mangal I, 781 S.E.2d at 734.

         The State called the victim as its first witness, and it called forensic interviewer Wiley Garrett and pediatrician Dr. Nancy Henderson as its final two witnesses.[12] See App. 5-39, 45-90, 116-69. Petitioner called the victim's mother (his ex-wife Diane Farid) as the third defense witness, and she testified immediately before he did.[13] App. 257-320, 324-96. Petitioner's improper bolstering claims are based on certain testimony given by Garrett, Dr. Henderson, and the victim's mother.

         2. Improper Bolstering

         “[A]ny testimony by one witness as to their opinion about the credibility of another witness” is inadmissible, “incompetent evidence.” State v. Dawkins, 377 S.E.2d 298, 302 (S.C. 1989); State v. Dempsey, 532 S.E.2d 306, 309-10 (S.C. Ct. App. 2000) (recognizing Dawkins stands for the principle that a witness cannot “improperly vouch[] for the victim's credibility”).[14] “[A]fter State v. Dawkins was decided in 1989, the law was clear that no witness may give an opinion as to whether the victim is telling the truth.” Thompson v. State, 814 S.E.2d 487, 491 (S.C. 2018) (emphasis added) (quoting Briggs v. State, 806 S.E.2d 713, 718 (S.C. 2017)).[15] “[T]he central point of the prohibition against improper bolstering [is that] a witness may not give an opinion for the purpose of conveying to the jury-directly or indirectly-that she believes the victim.” Briggs, 806 S.E.2d at 717; see Thompson, 814 S.E.2d at 491 (“[I]t [i]s improper for a witness to vouch for the credibility of another witness.”). “[N]o witness may give an opinion as to whether the victim is telling the truth, ” and “[w]hen the testimony directly conveys the witness's opinion that the victim is telling the truth, it is obviously improper bolstering.” Briggs, 806 S.E.2d at 718.

         3. ...


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